Cri. BA No.28/2024
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in C.R. No.424/2023
MHCC020001642024
Presented on
: 03-01-2024
Registered on : 03-01-2024
Decided on
: 03-02-2024
Duration
: 01 Month
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
CRIMINAL BAIL APPLICATION NO.28 OF 2024
IN
C.R. NO.424 OF 2023
Mohd. Yakub Mohd. Kasim Shaikh
Aged : 47 years, Occ: R/at : Room No.5, B-Sector, V-Line, Near
Gulshane Masjid, Cheeta Camp Trombay
Mumbai – 400 088.

)
)
)
)
) .. Applicant/accused
V/s.
The State of Maharashtra
)
(At the instance of Trombay police )
station, Mumbai vide (CCTNS)/C.R. ) .. Respondent/Prosecutor
No.424/2023).
Appearance :
Ld. Adv. Mr. Sandesh More, for the applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.

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in C.R. No.424/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 03/02/2024
ORAL ORDER
This is an application taken out by applicant/accused
Mohd. Yakub Mohd. Kasim Shaikh under section 439 of Code of
Criminal Procedure for enlarging him on bail in (CCTNS)/C.R.
No.424/2023 registered at Trombay police station, Mumbai for the
offences punishable under section 8(c) r/w section 22(c) 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 the 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 the
prosecution
case
on
05/09/2023
during
patrolling
the
applicant/accused was found in suspicious circumstances and during
the search of bag in his hand 38 bottles of Chlorpheniramine Maleate &
Codeine Phosphate syrup WELCYREX Cough Syrup of 100 ml each were
recovered from the possession of the applicant/accused. Therefore,
offence punishable under section 8(c) r/w section 22(c) of NDPS Act is
Cri. BA No.28/2024
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in C.R. No.424/2023
registered against the applicant/accused. Applicant/accused is falsely
implicated in the present case. From the FIR it reveals that, Head
Constable Akhade had taken search of bag in the hand of the
applicant/accused. Head Constable is not empowered/authorized
officer to take search. Therefore, search and seizure of the contraband
in the present crime is vitiated. The applicant/accused is not having any
criminal antecedents. 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 applicant/accused kept his reliance on
the following citation :
No.1
Shafat Mausin Khan @ Shahrukh Khan Vs.
The State of Maharashtra, in Bail
Application
No.872/2023,
dated
18/10/2023 of Hon’ble Bombay High Court.

Court has gone through the observations made therein.
4.
police
On the other hand, Ld. APP argued that, during patrolling
officials
of
the
Trombay
police
station
found
the
applicant/accused in suspicious condition hiding one bag in his hand
and therefore, as per the instructions of PI Shinde, Head Constable
Akhade had searched the bag in possession of the applicant/accused
and 38 bottles of Chlorpheniramine Maleate & Codeine Phosphate syrup
WELCYREX Cough Syrup of 100 ml each were recovered from the
possession of the applicant/accused. Head Constable is empowered
officer to take search. Contraband recovered from the possession of the
applicant/accused is of commercial quantity. Therefore, rigours of
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in C.R. No.424/2023
section 37 of the NDPS Act are applicable to the case of the
applicant/accused. The applicant/accused has not
demonstrated
reasons to believe that, applicant/accused is not guilty of the offence
alleged to have been committed by him. On the other hand, from prima
facie appreciation of the material on record it reveals that, there are
reasonable grounds to believe that, applicant/accused is guilty of the
offence alleged to have been committed by him. Therefore, Ld. APP
submitted that, application be rejected.
5.

Applicant/accused is alleged to have committed offence
punishable 8(c) r/w section 22(c) 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 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
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in C.R. No.424/2023
the bail application. Negation of bail is rule and grant of bail is
exception under above clause.
7.

From the appreciation of the material on record it appears
that, in the present case as per the instruction of PI Shinde, Head
Constable Akhade had taken search of bag in possession of the
applicant/accused. Ld. APP made statement at bar that Akhade is a
Head Constable and he is not a Police Constable. Head Constable is
authorized/empowered officer to take search as per provision of section
42 of the NDPS Act. Therefore, from the appreciation of the material on
record
there
appear no
substance
in the
contention
of
the
applicant/accused that, in the present case search of the bag in
possession of the applicant/accused was taken by unempowered officer
and therefore, search and seizure in the present case is vitiated.
8.

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(c) 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.

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9.

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in C.R. No.424/2023
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.
10.

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.
11.

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.

Criminal Bail Application No.28/2024 of applicant/accused
Mohd.

Yakub
Mohd.

No.424/2023), is rejected.

Kasim
Shaikh
in
(CCTNS)/C.R.

Cri. BA No.28/2024
2.

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in C.R. No.424/2023
Criminal Bail Application No.28/2024 is disposed of accordingly.
(Pronounced in open Court)
Date : 03/02/2024.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
03/02/2024
Transcribed on
:
03/02/2024
Checked on
:
03/02/2024
Signed on
:
03/02/2024
Cri. BA No.28/2024
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in C.R. No.424/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
05.02.2024
TIME
NAME OF STENOGRAPHER
11.50 a.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.

03.02.2024
Judgment/order signed by P.O on 03.02.2024
Judgment/order uploaded on
05.02.2024