Mumbai, Maharashtra [India] – [September 23, 2023]: A Special Court for Narcotic Drugs and Psychotropic Substances Act, 1985, in Greater Bombay, has rejected the bail application of Mohammad Bilal Musa Shaikh, a 41-year-old resident of Kurla (West), who was arrested for allegedly possessing a substantial quantity of codeine-based cough syrup. The order, passed by Additional Sessions Judge K.P. Kshirsagar (C.R.43), was delivered on September 14, 2023.
Shaikh was apprehended in connection with Spl. LAC/C.R. No.63/2023 registered at the Kurla Police Station, Mumbai, for offences punishable under Section 8(c) read with Section 22(c) of the Narcotic Drug and Psychotropic Substances Act, 1985 (NDPS Act). These sections pertain to the prohibition of the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use, or consumption of any narcotic drug or psychotropic substance, and the punishment for contravention involving commercial quantities.
According to the prosecution’s case, on May 12, 2023, during patrolling, the police recovered 816 bottles, each containing 100 ml of Chlorpheniramine Maleate & Codeine Phosphate syrup under the brand name “PHENSIREST,” from the possession of Mohammad Bilal Musa Shaikh. This amounts to a total of 81.6 liters of the syrup.
The applicant’s advocate, Mr. Prasad Sawant, argued that this was Shaikh’s first bail application and no other similar application was pending in higher courts. He contended that codeine phosphate syrup is exempted from the purview of narcotic drugs or psychotropic substances and that only the pure quantity of codeine phosphate in the mixture should be considered. Furthermore, he argued non-compliance with Section 50 of the NDPS Act (search of persons) and stated that Shaikh had no prior criminal record, was a resident of Mumbai, and was ready to abide by all conditions imposed by the court. The Chemical Analyzer’s report was also yet to be received at the time of the application. The defense relied on several judgments from the Delhi and Punjab & Haryana High Courts regarding the interpretation of codeine-based cough syrups under the NDPS Act.
However, the prosecution, represented by Ld. APP Mr. Rajput, strongly opposed the bail, asserting that the recovered quantity of 81.6 liters of the syrup constituted a commercial quantity under the NDPS Act. They argued that the recovery was made during routine patrolling from a rickshaw in Shaikh’s possession in a public place, thus negating the applicability of Section 50 of the NDPS Act. The prosecution contended that considering the commercial quantity, the stringent conditions of Section 37 of the NDPS Act, which restricts the grant of bail in such cases, were applicable. They argued that Shaikh had failed to demonstrate reasonable grounds to believe he was not guilty of the alleged offence.
Additional Sessions Judge K.P. Kshirsagar, after perusing the records and hearing both sides, ruled against the applicant. The court noted that the recovery was from an auto-rickshaw in Shaikh’s possession in a public place, thus dismissing the argument of non-compliance with Section 50 of the NDPS Act as the recovery was not from Shaikh’s person.
The court also cited the judgment in the case of Hira Singh and Another Vs. Union of India and Another, stating that in cases of mixtures containing narcotic drugs or psychotropic substances with neutral substances, the entire quantity of the mixture is to be considered for determining the quantity of the contraband. Therefore, the argument that only the pure quantity of codeine phosphate should be considered was rejected.
Furthermore, the court found no substance in the contention that codeine phosphate is exempted from the NDPS Act, referring to the relevant notification issued by the Central Government. Based on the material on record, the court concluded that the quantity of the recovered syrup was indeed a commercial quantity. The court highlighted that the punishment for such an offence could extend up to 20 years imprisonment and a fine of up to One Lakh rupees, indicating the grievous nature of the alleged crime. Consequently, the rigors of Section 37 of the NDPS Act were deemed applicable.
The court emphasized that under Section 37 of the NDPS Act, the burden lies on the accused to demonstrate reasonable grounds to believe that he is not guilty of the alleged offence and that he is unlikely to commit any offence while on bail. The court found that Shaikh had failed to provide such grounds. Moreover, considering the large quantity of the recovered contraband, the court was not satisfied that Shaikh would not commit a similar offence if released.
The court also distinguished the facts of the present case from the judgments cited by the applicant’s counsel. It noted that the investigation was still ongoing and releasing Shaikh could potentially hamper further investigation, allowing for the possibility of tampering with evidence or influencing witnesses.
In conclusion, the court found no justifiable grounds for releasing Mohammad Bilal Musa Shaikh on bail at this stage, stating that such a release would likely be prejudicial to the interest of society.
Order:
- NDPS Bail Application No.735/2023 of applicant/accused Mohammad Bilal Musa Shaikh in Spl. LAC/C.R. No.63/2023 in NDPS RA No.623/2023 is rejected.
- NDPS Bail Application No.735/2023 is disposed of accordingly.
The order was pronounced in open court on September 14, 2023, and the certified copy was made available on September 18, 2023.
This case underscores the strict approach taken by the courts in matters involving commercial quantities of narcotic and psychotropic substances under the NDPS Act. The judgment highlights the importance of considering the total quantity of the mixture in codeine-based cough syrup cases and the stringent conditions for bail under Section 37 of the Act.