CRI. BA No.85/2024 in C.R. No.105/2023 MHCC020005932024 Presented on : 09-01-2024
Registered on : 09-01-2024 Decided on : 11-03-2024 Duration : 02 M, 02 Days

IN THE SPECIAL COURT FOR NARCOTIC DRUG AND PSYCHOTROPIC SUBSTANCES ACT, 1985, AT GR. BOMBAY CRIMINAL BAIL APPLICATION NO.85 OF 2024 IN C.R. NO.105 OF 2023

Vivek Gulabchand Chaube)
Aged : 49 years, Occ: Driver)
R/at : A Wing Room No 303 Ganesh )
Complex Ganesh Chowk, Opp Anand )
Medical Charkop Kandivali (West), )
Mumbai. ) .. Applicant/Accused

V/s.

The State of Maharashtra )
(At the instance of ANC, Kandivali Unit, )
Mumbai, vide C.R. No.105/2023). ) .. Respondent/Prosecutor

Appearance :
Ld. Adv. Mr. Himanshu Shinde, for applicant/accused.
Ld. APP Mr. Tarange, for the respondent/prosecution.

CORAM : K.P. KSHIRSAGAR ADDL. SESSIONS JUDGE (C.R.43)

DATE : 11/03/2024 ORAL ORDER

This is an application taken out by applicant/accused Vivek Gulabchand Chaube under section 439 of Code of Criminal Procedure for enlarging him on bail in C.R. No.105/2023 registered at ANC,
Kandivali Unit, Mumbai for the offences punishable under section 8(c) r/w section 20(c) and section 29 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 learned Advocate for applicant/accused and learned APP.

3.Learned Advocate for applicant/accused argued that, this is the first bail application taken out by the applicant/accused and no other bail application of the applicant/accused is pending in any higher
Court in respect of the above crime or rejected by Higher court. Ld. Advocate for the applicant/accused argued that, as per the prosecution case on 30/12/2023, Co-accused No.1 Shankar Teji Patel and coaccused No.2 Avinash Ravindra Bedekar were found in suspicious condition and during their search 150 gram Charas was recovered from the possession of the co-accused No.1 and 40 gram Charas was
recovered from the possession of the co-accused No.2. During investigation co-accused No.2 disclosed that, he had procured the said contraband from the co-accused No.3 Tunir Vijay Mulik and therefore, co-accused No.3 was apprehended and 750 gram Charas was recovered in C.R. No.105/2023
from his possession. Co-accused No.3 disclosed that, co-accused No.4 i.e. applicant/accused had supplied the said contraband to him and at that time applicant/accused had been there and during his search 500 gram Charas was recovered from the applicant/accused. Individual quantity of contraband recovered from the possession of the applicant/accused is intermediate quantity. There is no independent positive material to indicate nexus between applicant/accused and coaccused. Therefore, provision of section 29 of the NDPS Act is not applicable to the case of the applicant/accused. Applicant/accused is resident of Mumbai and he is not having any criminal antecedents. Applicant/accused 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 Sagar Nana Borkar Vs. The State of Maharashtra, in Criminal Bail Application No.3636/2022, dated 15.09.2023 of Hon’ble Bombay High Court. Court has gone through the observations made therein.

4.On the other hand, Ld. APP argued that, 150 gram Charas was recovered from the possession of the co-accused No.1 Shankar Teji Patel and 40 gram Charas was recovered from the possession of the coaccused No.2 Avinash Ravindra Bedekar from the same spot. During investigation the co-accused No.2 disclosed that, he had procured the said contraband from the co-accused No.3 Tunir Vijay Mulik and on interception of the co-accused No.3, 750 gram Charas was recovered CRI. BA No.85/2024
in C.R. No.105/2023 from his possession. Co-accused No.3 disclosed that, he had procured the said contraband from the applicant/accused and on interception of the applicant/accused 500 gram Charas was recovered from the applicant/accused. The cumulative quantity of contraband recovered
from the possession of the accused persons is of commercial quantity. Statement of the co-accused is admissible for the purpose of investigation. Investigation is not completed yet. Material on record prima facie show nexus between applicant/accused and co-accused No.3. Therefore, rigours under section 37 of the NDPS Act are also applicable.

Applicant/accused has not demonstrated reasonable grounds to believe that, he is not guilty of the offence alleged to have been committed by him. Therefore, Ld. APP submitted that, application
be rejected.

5.From the appreciation of the material on record it appears that, applicant/accused is alleged to have committed offence punishable under section 8(c) r/w section 20(c) and section 29 of NDPS Act. The
punishment provided for the offence may extend upto 20 years imprisonment and also fine which may extend upto One Lakh rupees. Admittedly, the cumulative quantity of contraband alleged to be recovered from the possession of the applicant/accused and co-accused is commercial quantity. Statement of the co-accused is admissible for the purpose of investigation. Therefore, there is positive material on record to show nexus between applicant/accused and the co-accused No.3. Considering the quantity of contraband recovered in the present crime rigours of section 37 of the NDPS Act are applicable to the case of the applicant/accused. From the appreciation of the material on record it
appears that, applicant/accused and co-accused are part of the chain of the drug trafficking and therefore, there is positive material to indicate the nexus between applicant/accused and co-accused.

6.As per section 37 of the NDPS Act burden is upon the applicant/accused to show that there are reasonable grounds to believe that, he is not guilty of the offence and to satisfy the Court that
applicant/accused is not likely to commit similar offence.

Applicant/accused has not demonstrated any material to show that there are reasonable grounds to believe that applicant/accused is not guilty of offence alleged to have been committed by him. 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 20(c) and section 29 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 coaccused and 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.

7.Considering the facts of the present case and above discussion in the humble opinion of this court facts of the judgment cited supra relied by applicant/accused are different than the facts of
the present case and therefore, in the humble opinion of this court same are not applicable to the facts of the present case.

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, 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 20(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 and co-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. 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.Cri. BA No.85/2024 of applicant/accused Vivek Gulabchand Chaube in C.R. No.105/2023, is rejected.

2.Cri. BA No.85/2024 is disposed of accordingly.

(Pronounced in open Court) Date : 11/03/2024. (K.P. Kshirsagar) N.D.P.S Special Judge City Civil & Sessions Court, Gr. Bombay (CR.43) Dictated on : 11/03/2024 Transcribed on : 11/03/2024 Checked on : 12/03/2024 Signed on : 13/03/2024 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER” UPLOAD DATE 13.03.2024 TIME NAME OF STENOGRAPHER 05.50 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.11.03.2024 Judgment/order signed by P.O on 13.03.2024 Judgment/order uploaded on 13.03.2024