Bail Application No. 245/2022
MHCC020012012022
IN THE SPECIAL COURT FOR NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY
NDPS BAIL APPLICATION NO. 245 OF 2022
IN
F. NO. NCB/MZU/C.R.-37/2021
CNR NO.:- MHCC02-001201-2022
Sahil Shah @ Sahil Flacko
S/o Sanjay Shantilal Shah
… Applicant
Versus
Narcotic Control Bureau
(F. NO. NCB/MZU/C.R.-37/2021)
… Respondent
Appearances :Ld. Adv. Mr. Ayaz Khan for the applicant/accused.
Ld. SPP Ms. Geeta Nayyar for the State.
CORAM : H.H. THE SPECIAL JUDGE (NDPS)
DR. A. A. JOGLEKAR (C.R.NO.42)
DATED : 03RD FEBRUARY, 2022
ORDER
By this application the applicant Sahil Shah @ Sahil Flacko
S/o Sanjay Shantilal Shah being accused in F. NO. NCB/MZU/C.R.37/2021 registered with NCB, Mumbai Zonal Unit for the offences
punishable under Sections 8 (c) read with Sections 20(b)(ii)(A), 28 and
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Bail Application No. 245/2022
29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as, “The NDPS Act”) seeks bail under Section
439 of the Code of Criminal Procedure, 1973 (In short, “CrPC”).
THE CASE OF PROSECUTION IN SHORT ENSUES AS UNDER;
2.

The sleuth of NCB upon specific information had arranged
campaign as on 12.04.2021 wherein accused No. 1 Ganesh Shere and
accused No. 2 Siddharth Amin were apprehended and intercepted and
during the search 310 grams of Ganja and Rs.1,50,000/- were seized
under panchanama dated 12.04.2021. Thereafter, the statements of the
accused were recorded under Section 67 of the NDPS Act wherein the
either accused had named the applicant/accused as the main person
behind the seized contraband. In the said matter charge-sheet was filed
as on 12.10.2021 which reflected name of the applicant/accused as a
wanted accused.

The applicant/accused as on 27.01.2022 has
surrendered before the sleuth of NCB and recorded his voluntary
statement and thereafter, he was put under arrest.
3.

The Ld. Advocate for applicant/accused state that he is
falsely implicated and there is no recovery from the applicant/accused
and except otherwise the co-accused have named the applicant/accused
in the present crime. It is further stated that, the co-accused who were
found with the alleged contraband have been granted bail and
considering the same the Ld. Advocate for applicant/accused prayed for
enlargement of the applicant/accused on bail.
4.

Per contra the prosecution has filed their reply vide Exh.2
and inter alia have resisted the application thereby stating that the
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Bail Application No. 245/2022
applicant/accused remained absconding, wherein he already had
applied for anticipatory bail in the Sessions Court and thereafter in the
High Court and both the applications were rejected, therefore, his
fleeing from investigation shows the complicity of the applicant/accused
in the present crime. Non recovery of contraband is not a ground for
grant of bail and that the applicant is a Ganja trafficker and has no
parity with the co-accused. In this regard, the investigation is under
progress and considering the same the Ld. Prosecutor prayed for
rejection of application.
5.

Heard Ld. Advocate for applicant/accused and Ld. SPP for
NCB. Perused application and reply.
6.

On meticulous examination of the case record it evinces to
me that the applicant/accused hereinbefore has moved an application
for grant of anticipatory bail before the Ld. Sessions Court as well as
before the Hon’ble High Court and both his applications were rejected.
This Court has made a specific query post argument of the either parties
for placing the said orders passed by the Ld. Sessions Court and the
Hon’ble High Court. I have minutely perused the order of the Hon’ble
Bombay High Court and it will be profitable to reproduce paragraph No.
6 which ensues as under,
“The Respondents have also filed affidavit-in-reply to
oppose this application for anticipatory bail. I have
perused the document pointed out by the learned
counsel for the Respondents in the nature of the
statements of the witnesses documents relating to the
investigation of the present case. The whatsapp
message, statement of arrested accused and the
investigation conducted by the respondents reveal the
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Bail Application No. 245/2022
complicity of the applicant in the crime. This is not a
fit case to exercise the powers under Section 438 of
the Code of Criminal Procedure to grant anticipatory
bail to the applicant. Hence, no case is made out to
grant relief in the application. The application stands
rejected.”
7.

Thus, the Hon’ble Bombay High Court has categorically
mentioned of the whatsapp message, statement of the arrested accused
and that the investigation conducted by the respondents to reveal for
the complicity of the applicant/accused under crime. Therefore, in view
of the observations of the Hon’ble Bombay High Court, it is evident that
since 11.06.2021 the applicant/accused evaded from co-operating the
Investigating Agency and post filing of charge-sheet has appeared
before the Investigating Agency.

The Investigating Agency while
dealing with the anticipatory bail application before the Hon’ble High
Court has also mentioned for the involvement of the applicant/accused
in another two C.R.s pertaining to similar offences. It is also evident
that while filing reply in the present matter the Investigating Agency
has failed to mention such prior antecedents and also has failed to
mention about the whatsapp messages held between either accused.
This kind of practice opted by the Investigating Agency is highly
deprecated.

Upon this, this Court has raised query with the
Investigating Officer and the Investigating Officer and the Investigating
Officer has filed pursis vide Exh.3 thereby stating that since there was
no admissible evidence available except the statement of accused No. 1
Ganesh, this fact was mentioned in bail reply.

Considering this
particular fact palpably the whatsapp messages are at this juncture of
no assistance to the prosecution as such.

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Bail Application No. 245/2022
8.

Considering the quantum of contraband recovered it is
below small quantity and that to from the co-accused.

There is no
recovery from the applicant/accused. The applicant/accused is held in
the present crime only upon the statements of the co-accused. As per
the Government Notification attached to the Schedule the small
quantity of Ganja is 1000 grams, while commercial quantity is 20 Kgs.
Undoubtedly, the contraband recovered from applicant/accused is
below small quantity, therefore, rigours of Section 37 of the NDPS Act
are not attracted.
9.

The Ld. Advocate for applicant/accused has relied on
following case laws.
10.

In the case of State by (NCB) Bengaluru Vs. Pallulabid
Ahmad Arimutta & Anr., Petition for Special Leave to Appeal (Crl.) No.
242/2022 (Arising out of Diary No. 22702 of 2020), decided on
10.01.2022, wherein the Hon’ble Supreme Court has observed that,
“10. It has been held in clear terms in Tofan Singh Vs.
State of Tamil Nadu, (2021) 4 SCC 1, that a
confessional statement recorded under Section 67 of
the NDPS Act will remain inadmissible in the trial of
an offence under the NDPS Act. In the teeth of the
aforesaid decision, the arrests made by the petitionerNCB, on the basis of the confession/voluntary
statements of the respondents or the co-accused under
Section 67 of the NDPS Act, cannot form the basis for
overturning the impugned orders releasing them on
bail. The CDR details of some of the accused or the
allegations of tampering of evidence on the part of one
of the respondents is an aspect that will be examined
at the stage of trial.”
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11.

In the case of Dheeren Kumar Jaina Vs. Union of India,
Criminal Appeal No. 965 of 2021 (Arising out of SLP (Cri.) No. 4432 of
2021), decided on 07.09.2021, wherein the Hon’ble Supreme Court
while relying upon the judgment in Tofan Singh has observed that the
statements of accused recorded under section 67 of the NDPS Act
cannot by themselves be relied upon to return an order of conviction
against the concerned accused.
12.

So considering the conspectus of the aforesaid case laws it
is evident that the same deals with the statement of the co-accused as
such. Undoubtedly, the quantity recovered from the co-accused is in
below small quantity and therefore the rigours of Section 37 are not
attracted. Apart from the same, considering the complicity of the
applicant/accused the apprehension of the prosecution can be taken
care of by saddling stringent condition on the applicant/accused
including marking his presence before the Investigating Agency until
disposal of trial. In the backdrop of the aforesaid facts, I hold that the
application deserves consideration. Hence, order infra :ORDER
1. NDPS Bail Application No. 245/2022 is allowed.
2. The applicant Sahil Shah @ Sahil Flacko S/o Sanjay
Shantilal Shah who is the accused in F. NO.
NCB/MZU/C.R.-37/2021 registered with NCB,
Mumbai Zonal Unit for the offences punishable under
Sections 8(c), 20(b)(ii)(A), 28 r/w Section 29 of the
NDPS Act, be released on furnishing P. R. bond of
Rs.50,000/- (Rupees Fifty Thousand Only) with one or
two sureties in the like amount.
3. The applicant Sahil Shah @ Sahil Flacko S/o Sanjay
Shantilal Shah and his surety shall provide their
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respective residential addresses, mobile numbers and
email addresses, if any.
4. The applicant Sahil Shah @ Sahil Flacko S/o Sanjay
Shantilal Shah shall not directly or indirectly make
any inducement, threat or promise to any person
acquainted with the facts of the present case to
dissuade them from disclosing such facts to the Court.
5. The applicant Sahil Shah @ Sahil Flacko S/o Sanjay
Shantilal Shah shall not tamper with the prosecution
evidence in any manner.
6. The applicant Sahil Shah @ Sahil Flacko S/o Sanjay
Shantilal Shah shall attend the concerned agency on
first Monday of each month between 11.00 am to 4.00
pm until disposal of trial.
7. The applicant Sahil Shah @ Sahil Flacko S/o Sanjay
Shantilal Shah shall surrender his passport if any with
the investigating officer. If the applicant doesn’t have
passport, he will furnish an affidavit to that effect.
8. The applicant Sahil Shah @ Sahil Flacko S/o Sanjay
Shantilal Shah shall not leave Mumbai without
permission of this Court.
9. Breach of any condition in this order would entail
cancellation of order forthwith.
10.
NDPS Bail Application No. 245/2022 stands
disposed of accordingly.

ABHAY
AVINASH
JOGLEKAR
Date : 03.02.2022
Digitally signed
by ABHAY
AVINASH
JOGLEKAR
Date: 2022.02.03
15:43:09 +0530
(DR. A. A. JOGLEKAR)
Special Judge, N.D.P. S.
City Civil & Sessions Court,
Gr. Bombay (C.R.42)
Dictated on
: 03.02.2022
Transcribed on : 03.02.2022
HHJ signed on : 03.02.2022
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Bail Application No. 245/2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
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JOGLEKAR