NDPS BA No.94/2024 in C.R. No.77/2023 MHCC020006332024 Presented on : 10-01-2024
Registered on : 10-01-2024 Decided on : 13-02-2024 Duration : 01 M, 03 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY NDPS BAIL APPLICATION NO.94 OF 2024
IN C.R NO.77 OF 2023
Imtiyaz Mehboob Shaikh Aged : 32 years, Occ: Labour R/at : Room No.827, BPT Railway Line,
CGS Colony, Antop Hill, Mumbai-400 032. ) .. Applicant/Accused No.2
V/s.
The State of Maharashtra )
(At the instance of ANC Worli Unit, ) Mumbai, vide C.R. No.77/2023). ) .. Respondent/Prosecutor
Appearance :
Ld. Adv. Ms. Poonam Kanade, for applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.
CORAM : K.P. KSHIRSAGAR ADDL. SESSIONS JUDGE (C.R.43)
DATE : 13/02/2024
ORAL ORDER
This is an application taken out by applicant/accused No.2 Imtiyaz Mehboob Shaikh under section 439 of Code of Criminal Procedure for enlarging him on bail in C.R. No.77/2023 registered at ANC Worli Unit, Mumbai for the offences punishable under section 8(c) r/w section 22(c) and section 29 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 learned Advocate for applicant/accused and learned APP.
3.Learned Advocate for applicant/accused argued that, this is the first bail application taken out by the applicant/accused and no other bail application of the applicant/accused is pending in any higher
Court in respect of the above crime or rejected by Higher court. Ld. Advocate for the applicant/accused argued that, as per the prosecution case during patrolling 556 bottles of Codeine Phosphate cough syrup are alleged to be recovered from the possession of the co-accused Nezfor Maful SK @ Ali @ Raju. During investigation co-accused disclosed that, he procured the said contraband from the
applicant/accused. On the basis of the statement of the co-accused applicant/accused is arrested on 04/01/2024. There is no recovery of any contraband from the applicant/accused. Statement of the coaccused is not admissible in evidence. Besides the statement of the coaccused there is no positive material on record to indicate any nexus between applicant/accused and the co-accused. Therefor, prima facie case under the provisions of section 29 of the NDPS Act is not made out.
The applicant/accused is resident of Mumbai and he is ready to abide by all terms and conditions which the court may impose. Therefore, Ld. Advocate for the applicant/accused prayed that, applicant/accused be released on bail.
Ld. Advocate for the applicants/accused kept his reliance on the following citations :
No.1 Sangeeta Y. Gaikwad Vs. State of Maharashtra, in Criminal Application No.2597/2006, dated 03/08/2006 of Hon’ble Bombay High Court.
No.2 Aryan Shah Rukh Khan Vs. Union of Indiaand Anr, in Criminal Bail Application No.3624/2021, dated 28/10/2021 of Hon’ble Bombay High Court.
No.3 Sagar Nana Borkar Vs. The State of Maharashtra, in Criminal Bail Application No.3636/2022, dated 15.09.2023 of Hon’ble Bombay High Court.
No.4 Abdullah Abdul Salam Shaikh Vs. The State of Maharashtra, in Bail Application No4491/2021,
dated 02/03/2023 of Hon’ble Bombay High Court.
Court has gone through the observations made therein.
4.On the other hand, Ld. APP argued that, on 04/09/2023 during patrolling co-accused Nezfor Maful SK @ Ali @ Raju was found in suspicious condition and during his search and at his instance 556 bottles of Codeine Phosphate cough syrup are recovered from his possession. Co-accused No.1 during investigation disclosed that, he had procured the said contraband from the applicant/accused. During
investigation it revealed that, applicant/accused has supplied the contraband recovered from the co-accused No.1. CA report is positive. Investigation in respect of the applicant/accused is pending. Investigation reveals that, applicant/accused is the part of the supply chain and he is involved in the drug trafficking. Statement of the coaccused is admissible for the pur pose of investigation. Therefore, prima facie section 29 of the NDPS Act is applicable to the case of the applicant/accused. The quantity of the contraband recovered from the co-accused is commercial quantity. Therefore, rigours under section 37 of the NDPS Act are also applicable. Applicant/accused has not demonstrated any reasonable ground to believe that, he is not guilty of the offence alleged to have been committed by him. Moreover, considering the nature of the offence investigation is likely to be hampered
if the applicant/accused is released on bail.
Applicant/accused is also having criminal antecedents. Therefore, Ld. APP submitted that, application be rejected.
5.The applicant/accused is alleged to have committed offence punishable 8(c) r/w section 22(c) and section 29 of the NDPS Act. 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 possession of the co-accused and nature of offences rigors of section 37 of NDPS Act are applicable to present matter.
6.As per section 37 of the NDPS Act burden is upon the applicant/accused to show that there are reasonable grounds to believe that, he is not guilty of the offence and to satisfy the Court that
applicant/accused is not likely to commit similar offence.
Applicant/accused has not demonstrated any material to show that there are reasonable grounds to believe that applicant/accused is not guilty of offence alleged to have been committed by him. 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(c) and section 29 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 coaccused 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.
7.From appreciation of material on record and fact that statement of the co-accused can be considered for the purpose of investigation there appear positive material which indicates nexus between applicant/accused and co-accused. Therefore, prima facie provision of section 29 of the NDPS Act is applicable to the case of the applicant/accused. Admittedly, till date investigation is not completed.
Statement of the co-accused is admissible for the purpose of 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.
8.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.
9.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.Cri. BA No.94/2024 of applicant/accused No.2 Imtiyaz Mehboob Shaikh in C.R. No.77/2023, is rejected.
2.Cri. BA No.94/2024 is disposed of accordingly.
(Pronounced in open Court) Date : 13/02/2024. (K.P. Kshirsagar) N.D.P.S Special Judge City Civil & Sessions Court, Gr. Bombay (CR.43) Dictated on : 13/02/2024 Transcribed on : 13/02/2024
Checked on : 13/02/2024 Signed on : 13/02/2024 NDPS BA No.94/2024 ..7.. in C.R. No.77/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER”
UPLOAD DATE 13.02.2024 TIME NAME OF STENOGRAPHER 05.50 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. 13.02.2024 Judgment/order signed by P.O on 13.02.2024 Judgment/order uploaded on 13.02.2024