BA 289.24
1
MHCC020019902024
IN THE COURT OF THE SPECIAL JUDGE FOR N.D.P.S. CASES
AT GREATER MUMBAI
NDPS BAIL APPLICATION NO. 289/2024
IN
SPL. Case No. 1142/2022
(C. R. NO. 22 OF 2022)
Moinuddin Mohd. Zubair Khan
Age : 25 years,
R/o : R. No. 49, 4th floor,
Plot No.58, Sattar Building,
Bristi Mohalla, Dongri,
Mumbai – 400 009.
V/s.
The State of Maharashtra
(ANC, Azad Maidan Unit)
… Applicant/accused no.2
… Respondent
Appearance :Ms. Zehra Charania, Adv. for applicant.
Mr. Shankar Erande, APP for respondent/State.
CORAM : THE SPECIAL JUDGE
B. Y. PHAD (C.R.44)
DATE :
23.02.2024
ORDER
This application has been filed by the applicant/accused
Moinuddin Mohd. Zubair Khan under Section 439 of the Code of
Criminal Procedure in connection with Crime Number 22/2022
registered under Sections 8(c) read with Section 22(c) & 29 of the
Narcotic Drugs and Psychotropic Substances Act 1985 at ANC, Azad
BA 289.24
2
Maidan Unit, Mumbai.
2.

In short, the applicant claims that he has not committed
any crime and has been falsely implicated in this case. No case is made
out against him. The investigation is over, and the charge sheet is filed.
No recovery is made at the instance of or from the applicant. The
applicant is arrested merely on the basis of the statement of the coaccused. The applicant is ready to furnish surety and abide by the
conditions of the bail bonds. Therefore, he may be released on bail.
3.

The application has been objected to by the investigating
officer by filing a reply at Exhibit 2. It is contended that accused no.1
has been apprehended in this case. He was found possessing 3 kgs. 110
gms. of MD. A charge sheet has been filed against him. The applicant
has a criminal record with crime number 07/2019 u/sec. 8(c) 22(c),
25, 25-A, 27, 27-A & 29 of NDPS Act. The applicant’s real sister is
married to accused no.1. Therefore, accused no.1 has falsely stated that
the contraband was supplied to him by one Salim Karla. However, in
the course of deep investigation, it has been revealed that the present
applicant supplied the contraband to accused no.1. The location where
the contraband was discovered was led to by accused no.1 through his
memorandum statement. If the applicant is released on bail, there is a
risk that he may repeat the commission of the crime.
4.

Learned Cunsel, Ms. Zehra Charania, for the applicant
submits that the only evidence against the present applicant is the
statement of the co-accused, and the applicant has been arrested solely
on the basis of this statement. There is nothing on record to show the
applicant’s involvement in the commission of the crime. Therefore, the
applicant may be released on bail. The only case pending against the
applicant cannot be treated as antecedent to deny bail. Therefore, the
applicant may be released on bail.

BA 289.24
5.

3
On the other hand, learned APP Mr. Shankar Erande
submits that there is evidence in the form of a memorandum statement
of the co-accused against the present applicant/accused. The applicant
is the supplier of the contraband. Therefore, the applicant had active
involvement in the crime. A huge quantity of the contraband has been
seized from accused No. 1. If the applicant is released on bail, he may
commit a similar crime, tamper with prosecution evidence, and
pressure witnesses. Therefore, his application may be rejected.
6.

Considering submissions from both sides, it is clear that
the only evidence available against the applicant is the statement of the
co-accused. Such evidence alone is not sufficient to deprive the
applicant of his personal liberty. Therefore, the applicant is entitled to
be released on bail. The Hon’ble Apex Court in “Toofan Singh vs State
of Tamil Nadu”, MANU/SC/0797/2020 : 2020:INSC:620 : (2021) 4
SCC1, held that a confessional statement recorded under section 67 of
the NDPS Act will remain inadmissible in the trial of offences under the
NDPS Act. The Hon’ble Supreme Court again in a case of “State by
(NCB) Bengaluru vs Pallulabid Ahmad Arimutta & Anr.”, reported as
MANU/SC/0053/2022 : (2022) 2 SCALE 14, held in the teeth of the
aforesaid decision, the arrest made by the police on the basis of
confessional/voluntary statement of the accused or co-accused under
section 67 of the NDPS Act cannot form the basis for overturning the
impugned order releasing them on bail. In light of the above, it is hold
that the applicant is entitled to be released on bail. Hence the order :
ORDER
1. The applicant, Moinuddin Mohd. Zubair Khan, arrested in Crime
Number 22/2022 registered under Sections 8(c) read with Section
22(c) & 29 of the Narcotic Drugs and Psychotropic Substances Act,
1985 at ANC, Azad Maidan Unit, Mumbai, shall be released on bail
upon executing a personal bond of Rs. 60,000/- along with one or two
solvent surety bond/bonds of the said amount, to ensure his appearance at all
BA 289.24
4
required times during the legal proceedings, subject to the following
conditions:
a.

The applicant/accused is directed to report to ANC, Azad
Maidan Unit, Mumbai every Sunday between 10.00 a.m. to 11.00 a.m.,
till framing of charge without fail.
b.

The applicant/accused is prohibited from leaving the
jurisdiction
of
Mumbai
without
explicit
permission
from
the
investigating officer or the Court.
c.

The applicant/accused is strictly prohibited from making
any form of contact with co-accused, witnesses, or any individuals
directly associated with the case. The applicant/accused shall not
tamper with any evidence or documents related to the case.
d.

The applicant/accused must maintain a stable residence at
his current address in Dongri, Mumbai and is required to inform the
court and the investigating officer of any change in his residential
address. The accused shall furnish his active mobile number to the
Investigating Officer and shall also immediately report any change in
his mobile number.
e. The applicant/accused must not interfere with the ongoing
investigation and shall comply fully with law enforcement in their
investigation.
f.

The applicant/accused shall surrender his passport, if any,
before the Investigating Officer within a week and, if he does not
possess any passport, he shall file an affidavit to that effect before the
Investigating Officer.
g. The applicant/accused is prohibited from engaging in activities
that might be related to the offense registered.
h. The applicant/accused must comply with all reasonable
BA 289.24
5
directions made by law enforcement agencies or investigating officers
related to the case.
i. As per para No.12(1) of the Criminal Manual, the
applicant/accused before release on bail shall furnish the list of three
blood relatives with their detail residential addresses and also the
addresses of their place of work, if any, and shall also produce
documentary proofs showing the correctness of details produced by
him.
2.

Failure to adhere to any of these conditions will result in the
immediate revocation of bail and may lead to further legal
consequences.

Date : 23.02.2024
Dictated on
Typed on
Checked on
Signed on
( B. Y. PHAD )
Special Judge (N.D.P.S.),
City Civil & Sessions Court,
Gr. Bombay (C.R. NO.44)
: 23.02.2024
: 27.02.2024
: 29.02.2024
: 01.03.2024
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
02.03.2024
TIME
NAME OF STENOGRAPHER
11.10 a.m.

Mrs. S. W. Tuscano
Name of the Judge
HHJ Shri B. Y. Phad
(CR No.44)
Date of Pronouncement of
Judgment/Order.
Judgment/order signed by P.O on
21.02.2024
Judgment/order uploaded on
02.03.2024
01.03.2024