NDPS BA No.686/2023
..1..

in NDPS RA No.659/2023
MHCC020120902023
Presented on
: 11-08-2023
Registered on : 11-08-2023
Decided on
: 14-09-2023
Duration
: 01 M, 03 Days
IN THE SPECIAL COURT FOR NARCOTIC DRUG AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO.686 OF 2023
IN
NDPS REMAND APPLICATION NO.659 OF 2023
Mr. Mustafa Fakir Mohammed Shaikh
Aged : 31 years, Occ:
R/at : Near Fizan Raza Masjid, Indira
Nagar
Zopadpatti,
Road
No.14,
Bainganwadi, Mumbai-400 043.

)
)
)
) .. Applicant/accused
V/s.
The State of Maharashtra
)
(At the instance of Shivaji Nagar police )
station, Mumbai, vide Spl. LAC/C.R. ) .. Respondent/Prosecutor
No.415/2023)
Appearance :
Ld. Adv. Mr. Saquib Shaikh, for the applicant/accused.
Ld. APP Mr. Rajput, for the respondent/prosecution.

NDPS BA No.686/2023
..2..

in NDPS RA No.659/2023
CORAM : K.P. KSHIRSAGAR
ADDL. SESSIONS JUDGE (C.R.43)
DATE
: 14/09/2023
ORAL ORDER
This is an application taken out by applicant/accused
Mustafa Fakir Mohammed Shaikh under section 439 of Code of
Criminal Procedure for enlarging him on bail in Spl. LAC/C.R.
No.415/2023 registered at Shivaji Nagar 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.

Ld. Advocate for the applicant/accused argued that, as per
the prosecution case, on 10/05/2023, 15 gram Mephedrone (MD) was
recovered from the possession of the applicant/accused and during
investigation at the instance of the applicant/accused 50 bottles of 100
ml each containing Chlorpheniramine Maleate & Codeine Phosphate
syrup PHENSIREST were recovered. Therefore, offence punishable
under section 8(c) r/w section 22 of NDPS Act is registered against the
applicant/accused. The applicant/accused is permanent resident of
Mumbai. The applicant/accused is young person and he is ready to abide
all conditions which the court may impose. Applicant/accused is not having
NDPS BA No.686/2023
..3..

in NDPS RA No.659/2023
any criminal antecedents under NDPS Act. Therefore, Ld. Advocate for the
applicant/accused prayed that, applicant/accused be enlarged on bail.
Ld. Advocate for the applicant/accused kept his reliance on
the following citations.

No.1
Raosaheb Patole Vs. The State of
Maharashtra, in Criminal Bail Application
No.373/2011, dated 24/03/2011 of Hon’ble
Bombay High Court.

No.2
Prabhakar Tewari Vs. State of U.P. & Anr., in
Criminal Appeal No.152/2020, dated
24/01/2020 of Hon’ble Apex Court.

Court has gone through the observations made therein.
4.

On the other hand, Ld. APP argued that, 15 gram
Mephedrone (MD) and 50 bottles of 100 ml each containing
Chlorpheniramine Maleate & Codeine Phosphate syrup PHENSIREST
were recovered from the applicant/accused. The quantity of the
Codeine Phosphate recovered in the present crime is commercial
quantity. Therefore, rigours of section 37 of NDPS Act are applicable.
Wanted accused in the present case is yet to be arrested. Investigation is
in progress. Applicant/accused is having several criminal antecedents.
Applicant/accused has not demonstrated any material to show that
there are reasons 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, conditions under section 37
of the NDPS Act are not satisfied by the applicant/accused. Moreover,
NDPS BA No.686/2023
..4..

in NDPS RA No.659/2023
investigation is likely to be hampered if the applicant/accused is
released on bail. Therefore Ld. APP submitted that application be
rejected.
5.

From
the
matter
on
record
it
appears
that,
applicant/accused is alleged to have committed offence punishable
under section 8(c) r/w section 22 of NDPS Act, 1985. 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
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 prima facie
there appear no violation of any mandatory provision of law. Moreover,
the question whether there is substantial compliance of section 42 or
section 50 of NDPS Act is a question of fact which is required to be
NDPS BA No.686/2023
..5..

in NDPS RA No.659/2023
determined in the trial after giving opportunity to prosecution to
establish that the safeguards provided therein are complied.
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 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.
9.

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.
Investigation is pending. Therefore, at this stage there appear necessity
for the further detention of the applicant/accused.

NDPS BA No.686/2023
10.

..6..

in NDPS RA No.659/2023
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.
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.

NDPS BA No.686/2023 of applicant/accused Mustafa Fakir
Mohammed Shaikh in Spl. LAC/C.R. No.415/2023 in NDPS RA
No.659/2023, is rejected.

2.

NDPS BA No.686/2023 is disposed of accordingly.
(Pronounced in open Court)
Digitally signed
by KIRAN
PRAKASH
KIRAN
KSHIRSAGAR
PRAKASH
KSHIRSAGAR Date:
2023.09.18
15:10:41 +0530
Date : 14/09/2023.

(K.P. Kshirsagar)
N.D.P.S Special Judge
City Civil & Sessions Court,
Gr. Bombay (CR.43)
Dictated on
:
14/09/2023
Transcribed on
:
15/09/2023
Checked on
:
16/09/2023
Signed on
:
18/09/2023
NDPS BA No.686/2023
..7..

in NDPS RA No.659/2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
18.09.2023
TIME
NAME OF STENOGRAPHER
03.00 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.

14/09/2023
Judgment/order signed by P.O
on
18/09/2023
Judgment/order uploaded on
18/09/2023