NDPS BA NO.700-2023
..1..

in NDPS RA No.662/2023
MHCC020121842023
Presented on
: 14-08-2023
Registered on : 14-08-2023
Decided on
: 05-09-2023
Duration
: 21 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.700 OF 2023
IN
NDPS REMAND APPLICATION NO.662 OF 2023
Asif @ Batla Yunus Qureshi
Aged : 32 years, Occ:
R/at : Building No.9/A, Room No.402,
Lallubhai
Compound
Mankhurd,
Mumbai-400 043.

)
)
)
) .. Applicant/accused
V/s.
The State of Maharashtra
)
(At the instance of Mankhurd police )
station,
Mumbai,
vide
C.R. ) .. Respondent/Prosecutor
No.310/2023)
Appearance :
Ld. Adv. Ms. Jyoti Pangerkar, for the applicant/accused.
Ld. APP Mr. P.J. Tarange, for the respondent/prosecution.

NDPS BA NO.700-2023
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in NDPS RA No.662/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 05/09/2023
ORAL ORDER
This is an application taken out by applicant/accused Asif
@ Batla Yunus Qureshi under section 439 of Code of Criminal
Procedure for enlarging him on bail in C.R. No.310/2023 registered at
Mankhurd police station Mumbai for the offences punishable under
section 8(c) r/w section 22 of Narcotic Drug and Psychotropic
Substances Act, 1985 (hereinafter referred as “NDPS Act”).
2.

Perused the application, documents filed therewith, reply of
the prosecution and material on record. Heard, arguments advanced by
Ld. Advocate for the applicant/accused and learned APP.
3.

Learned Advocate for applicant/accused submitted that,
this is the first bail application taken out by the applicant/accused. No
other bail application taken out by the applicant/accused in respect of
the present crime is pending in Hon’ble High Court or any superior
court. Ld. Advocate for the applicant/accused argued that, as per
prosecution case on 16/05/2023, 23 bottles of 100 ml each containing
Chlorpheniramine Maleate & Codeine Phosphate syrup PHENSIREST
were recovered from the possession of the applicant/accused.
Therefore, offence punishable under section 8(c) r/w section 22 of
NDPS
Act
is
registered
against
the
applicant/accused.

The
applicant/accused is not having any criminal antecedents. The pure quantity
of the codeine phosphate in the seized bottles only is to be considered.

NDPS BA NO.700-2023
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in NDPS RA No.662/2023
Therefore, the quantity of contraband recovered doesn’t come under the
commercial quantity. The applicant/accused is resident of Mumbai. The
applicant/accused is ready to abide all conditions which the court may
impose. Therefore, Ld. Advocate for the applicant/accused prayed that,
applicant/accused be enlarged on bail.
4.

On the other hand, Ld. APP argued that, 23 bottles of 100
ml each containing Chlorpheniramine Maleate & Codeine Phosphate
syrup PHENSIREST were recovered from the conscious possession of
the applicant/accused. The neutral substance wherein codeine is mixed
is also required to be considered for considering the quantity of
contraband recovered. The weight of the quantity of codeine mixed
syrup recovered is more than 1 Kg. Therefore, quantity of contraband
recovered from the applicant/accused is of commercial quantity.
Therefore, rigours of section 37 of the NDPS Act are applicable to the
present case. Moreover, the applicant/accused has not demonstrated
any material to show that there are grounds to believe that
applicant/accused is not guilty of offence alleged to have been
committed by him. On the other hand, from appreciation of material on
record
there
appear
reasonable
grounds
to
believe
that
applicant/accused is guilty of the offence alleged to be committed by
him. Therefore, the applicant/accused has not fulfilled/satisfied the
conditions under section 37 of the NDPS Act. Therefore Ld. APP
submitted that application be rejected.
5.

From
the matter on record, it appears that, the
applicant/accused is alleged to have committed offence punishable 8(c)
r/w section 22 of the NDPS Act. Judicial notice of the judgment in the
case of Hira Singh and Another Vs. Union of India and Another, can be
NDPS BA NO.700-2023
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in NDPS RA No.662/2023
taken wherein it has been observed that in case of seizure of mixture of
narcotic drugs or psychotropic substance with one or more neutral
substance, the quantity of neutral substance is not to be excluded and is
to be taken into consideration for determining the quantity of the
contraband. Therefore, there appear no substance in the contention of
the applicant/accused that, pure quantity of codeine in the mixture is
required to be considered for considering the quantity of the contraband
recovered. As such from the appreciation of the material on record it
appears that, the quantity of contraband recovered from the
applicant/accused is commercial quantity. The punishment provided for
the offence may extend upto 20 years imprisonment and also fine which
may extend upto One Lakh rupees. Thus, the offence alleged to have
been committed is of grievous nature and sever punishment is provided
for the same. Considering fact that commercial quantity of contraband
is recovered from the conscious possession of the applicant/accused and
nature of offences rigors of section 37 of NDPS Act are applicable to
present matter.
6.

As per section 37(2) of NDPS Act limitations on grant of
bail specified in clause (b) of sub section (1) of section 37 of NDPS Act
are in addition to the limitations under the Code of Criminal Procedure
or any other law for the time being in force on granting of bail. To check
the menance of drugs flooding the market and in order to effectively
control and eradicate menance of drug legislature has incorporated
above limitations. The above limitations are in public interest.
Therefore, for exercise of discretion for grant of bail twin conditions
under clause (b) of sub section (1) of NDPS Act must be satisfied. Detail
examination of evidence on record is not necessary while considering
NDPS BA NO.700-2023
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in NDPS RA No.662/2023
the bail application. Negation of bail is rule and grant of bail is
exception under above clause.
7.

In view of mandate of section 37 of the NDPS Act the
burden is upon the accused to show that, there are reasonable grounds
to believe that, he is not guilty of the offence alleged. However, the
applicant/accused has not demonstrated any reasonable grounds to
believe that, he has not committed the offence alleged. From the
appreciation of the material on record there are reasonable grounds to
believe that, applicant/accused has committed the offence punishable
under section 8(c) r/w section 22 of NDPS Act. Moreover, considering
the nature of offence and the matter on record and the fact that, huge
quantity of contraband was recovered from the applicant/accused court
is also not satisfied that, the applicant/accused will not commit the
similar offence again. As such conditions under section 37 of NDPS Act
are not fulfilled and therefore, embargo put by section 37 of NDPS act is
not lifted.
8.

In the present matter till date investigation is not
completed. Release of the applicant/accused may hamper the further
investigation. Prima facie there is no material on record, so as to doubt
genuineness of the prosecution case. Prima facie there appear no
inherent
infirmities
or
improbability
in
the
prosecution
case.

Considering the nature of offence the possibility that, after release of
the
applicant/accused,
the
applicant/accused
may
tamper
the
prosecution evidence or influence the witnesses or may involve in
commission of such offences cannot be ruled out at this stage.
Therefore, at this stage there appear necessity for the further detention
of the applicant/accused.

NDPS BA NO.700-2023
9.

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in NDPS RA No.662/2023
Considering the above facts and discussion and prima facie
appreciation of the material on record release of the applicant/accused
at this stage is likely to be prejudicial to the interest of the society at
large. Liberal approach in grant of bail in such kind of offences under
NDPS Act is also uncalled.
10.

On prima facie appreciation of the material on record and
considering the nature of the offence, gravity of the offence there
appear no justifiable grounds for releasing applicant/accused on bail at
this stage.

As such the present application is liable to be rejected.

Hence, the following order.
ORDER
1.

NDPS Bail Application No.700/2023 of applicant/accused Asif @
Batla Yunus Qureshi in C.R. No.310/2023 in NDPS RA
No.662/2023, is rejected.

2.

NDPS Bail Application No.700/2023 is disposed of accordingly.
(Pronounced in open Court)
Digitally signed
by KIRAN
PRAKASH
KIRAN
KSHIRSAGAR
PRAKASH
KSHIRSAGAR Date:
2023.09.11
12:27:11 +0530
Date : 05/09/2023.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
05/09/2023
Transcribed on
:
06/09/2023
Checked on
:
08/09/2023
Signed on
:
08/09/2023
NDPS BA NO.700-2023
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in NDPS RA No.662/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
11.09.2023
TIME
NAME OF STENOGRAPHER
12.24 p.m.

Sanjay Baliram Kaskar
(Stenographer Grade-I)
Name of the Judge
H.H.J. SHRI. K.P. KSHIRSAGAR
NDPS Spl. Judge (C.R.No.43)
Date of Pronouncement of
Judgment/Order.

05/09/2023
Judgment/order signed by P.O on 08/09/2023
Judgment/order uploaded on
11/09/2023