CRI. BA No.85/2024
..1..

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.

CRI. BA No.85/2024
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in C.R. No.105/2023
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
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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
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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
CRI. BA No.85/2024
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in C.R. No.105/2023
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
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in C.R. No.105/2023
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
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in C.R. No.105/2023
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
CRI. BA No.85/2024
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in C.R. No.105/2023
“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