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IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
BAIL APPLICATION 1590 of 2022
IN
REMAND APPLICATION NO.652 OF 2022
Nihal Ahmed Shaikh
age 24 years,Permanent
resident of 376-A, Gr.floor,
Abubakar Chawl, Dharavi Main
Road,Bagicha Compound,
Dharavi, Mumbai-400 017
…Applicant/Orig.accused no.2
V/s
The State of Maharashtra
DCB CID ANC Azad Maidan Unit
vide C.R.No.139 of 2022
….Respondent
Ld.Advocate S.S.Adsul for applicant.
Ld.APP Ms.Geeta Nayyar for State.
CORAM:-
H.H.The Special Judge(NDPS)
Shri.A.V. Kharkar
C.R.No.42. Date:-26/07/2022
………………………
ORDER
By this application the accused Nihal Ahmed Shaikh is
seeking enlargement on bail in connection with offence
registered by ANC having C.R.No.139 of 2022 u/s.8(c),r/w
sec.22(c) and 29 of NDPS Act, 1985.
The facts which can be culled out from the application
and copies of report and panchanama are as follows.
2.

Incident is alleged to have occurred on 15/6/2022. The
informant is constable was attached to ANC Unit Azad Maidan
police station.

On that day he was asked to initiate action
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against offender of NDPS Act. He was member of the patrolling
party which set out from ANC Azad Maidan Police station with
material and other equipment required for raid under NDPS Act.
During the course of patrolling duty they found men carrying
polythene gunny bag. Their gestures and elements were
suspicious. The police party disclosed their identity and
questioned them. Their evasive answers gave rise to further
suspicion.

The accused were searched in presence of two
pancha witness. During their search police seized 50 bottle each
containing 100 ml cough syrup having name Maxcoff from
accused Maula Mehboob Makandar. Police further seized 50
bottles containing from accused Nihal. Thereafter, the accused
Maula Mehboob Makandar disclosed that he had obtained
bottles from one Asif Memon of Kashimira.

On the basis of
information given by accused Maula Mehboob Makandar the
police raided house of absconding accused at Kashimira and
further seized 150 bottles.
3.

The counsel for accused has argued that the present
applicant is innocent.

He has pointed out that in the police
papers it has been mentioned by the accused no.1 Maula
Mehboob Makandar that the bottles containing codeine were
brought by him from himself and the present applicant from
Asif Memon of Kashimira. Hence, this applicant does not have
conscious possession of the seized articles. Secondly, the
contents in each bottle are 2.3 gm in the 50 bottles that were
seized from accused and hence, no offence is made out against
present accused.

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4.

Ld.APP for State has submitted that in all 230 bottles were
seized. The contents of the bottle would come to 5000 ml which
was roughly translate to 4 kg of Codeine Phosphate would be
commercial quantity. Hence, rigours section 37 would apply to
the present case. The applicant would not be entitled to be
released on bail.
5.

On going through documents on record 50 bottles of
liquid containing Codeine Phosphate recover from the accused
on the spot and in totality 230 bottles were recovered.

The
applicant had no document to show for what purpose such
quantity of bottles were transported by them. It is settled law
that then the applicant does not show that contents of the bottle
were meant for therapeutic purpose then in that event the entire
content Codeine Phosphate of the syrup falls within provision of
NDPS Act.
6.

In such case the possession of 230 bottles each containing
100 ml would fall within commercial quantity and rigours of
section 37 of NDPS Act would apply.
7.

It is evident from a plain reading of the non-obstante
clause inserted in sub-section (1) and the conditions imposed in
sub-section (2) of Section 37 that there are certain restrictions
placed on the power of the Court when granting bail to a person
accused of having committed an offence under the NDPS Act.
Not only are the limitations imposed under Section 439 of the
Code of Criminal Procedure, 1973 to be kept in mind, the
restrictions placed under clause (b) of sub-section (1) of Section
37 are also to be factored in. The conditions imposed in sub-
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section (1) of Section 37 is that (I) the Public Prosecutor ought
to be given an opportunity to oppose the application moved by
an accused person for release and (ii) if such an application is
opposed, then the Court must be satisfied that there are
reasonable grounds for believing that the person accused is not
guilty of such an offence.

Additionally, the Court must be
satisfied that the accused person is unlikely to commit any
offence while on bail.
8.

The limitations on granting of bail come in only when the
question of granting bail arises on merits. Apart from the grant
of opportunity to the Public Prosecutor, the other twin
conditions which really have relevance so far as the present
accused-respondent is concerned, are the satisfaction of the
court that there are reasonable grounds for believing that the
accused is not guilty of the alleged offence and that he is not
likely to commit any offence while on bail. The conditions are
cumulative and not alternative. The satisfaction contemplated
regarding the accused being not guilty has to be based on
reasonable grounds.
means
something
The expression “reasonable grounds”
more
than
prima
facie
grounds.

It
contemplates substantial probable causes for believing that the
accused is not guilty of the alleged offence. The reasonable
belief contemplated in the provision requires existence of such
facts and circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged offence.”
9.

The expression “reasonable grounds” means something
more than prima facie grounds.

It contemplates substantial
probable causes for believing that the accused is not guilty of the
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alleged offence. The reasonable belief contemplated in the
provision requires existence of such facts and circumstances as
are sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence.
10.

To sum up, the expression “ reasonable grounds” used in
clause (b) of Sub-section (1) of Section 37 would mean credible,
plausible and grounds for the Court to believe that the accused
person is not guilty of the alleged offence. For arriving at any
such conclusion, such facts and circumstances must exist in a
case that can persuade the Court to believe that the accused
person would not have committed such an offence. Dove-tailed
with the aforesaid satisfaction is an additional consideration that
the accused person is unlikely to commit any offence while on
bail.
11.

In the present case 50 bottles was seized from accused. He
did not have any document to show that some were possessed
for therapeutic purpose. No reason is made out for possessing
those bottles in huge numbers.
12.

In my opinion the meter of available section 37 of NDPS
Act have not been satisfied in the fact of instant case. At this
stage, it is not safe to conclude that the accused has successfully
demonstrate that there are reasonable ground to believe that he
is not guilty of the offence alleged against him to have being
admit to guilt in the even of period of the custody could not be
ground for engaging him or doing away with provision of
section 37 of NDPS Act. Hence, following order is passed.

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ORDER
Bail Application No.1590 of 2022 is rejected.
Bail Application No.1590 of 2022 stands disposed of.

Date : 26.07.2022
(A. V. KHARKAR)
N.D.P.S. Special Judge
City Civil & Sessions Court,
Gr. Bombay (C.R.42)
Dictated on
: 26.07.2022
Transcribed on : 27.07.2022
HHJ signed on :
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
28/07/2022
4.20pm
(Mrs.P. P. Khanvilkar)
UPLOAD DATE AND TIME
NAME OF STENOGRAPHE
Name of the Judge (With Court
SHRI A.V.Kharkar
room no.)

(C.R. No.42)
Date
of
Pronouncement
of 26/07/2022
JUDGMENT/ ORDER
JUDGMENT/ORDER signed by P.O. 28/07/2022
on
JUDGMENT/ORDER uploaded on
28/07/2022