NDPS BA No.94/2024
..1..

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
NDPS BA No.94/2024
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in C.R. No.77/2023
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.

NDPS BA No.94/2024
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in C.R. No.77/2023
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 India
and 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
NDPS BA No.94/2024
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in C.R. No.77/2023
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 purpose 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.

NDPS BA No.94/2024
6.

..5..

in C.R. No.77/2023
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
NDPS BA No.94/2024
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in C.R. No.77/2023
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