Mumbai, September 4, 2023 – In a significant development, the Special Court for Narcotic Drug and Psychotropic Substances Act, 1985, at Gr. Bombay, presided over by Additional Sessions Judge K.P. Kshirsagar (C.R.43), granted bail to Mohmad Yunus Khwaja Mohinuddin Shaikh, a 42-year-old labourer, who was arrested in connection with a case involving the seizure of 10 grams of Mephedrone (MD).
The order came in response to NDPS Bail Application No. 670 of 2023, filed by Shaikh against NDPS Remand Application No. 976 of 2023, pertaining to C.R. No. 255/2023 registered at the Meghwadi police station in Mumbai. Shaikh was booked under Section 8(c) read with Section 22(b) of the Narcotic Drug and Psychotropic Substances Act, 1985 (NDPS Act).
The prosecution’s case, as presented in court, stated that on August 1, 2023, 10 grams of Mephedrone were recovered from the possession of Shaikh, leading to his arrest and the registration of the aforementioned charges.
Advocate Mr. Himanshu Shinde, representing the applicant/accused, argued for bail, emphasizing that this was Shaikh’s first bail application and no other such application was pending in higher courts. A key argument put forth by the defense was that the quantity of contraband recovered from Shaikh was “intermediate,” and therefore, the stringent conditions of Section 37 of the NDPS Act, which typically restrict the granting of bail in cases involving commercial quantities, would not be applicable in this instance.
Advocate Shinde further highlighted that Shaikh is a permanent resident of Mumbai with no prior criminal record. He assured the court that his client was willing to abide by any conditions imposed. Consequently, he urged the court to release Shaikh on bail.
Conversely, the Learned APP Mr. P.J. Tarange, representing the prosecution, vehemently opposed the bail application. He argued that the alleged offence was of a serious nature and pointed out that the individual from whom Shaikh had reportedly procured the seized contraband was yet to be apprehended. The prosecution contended that releasing Shaikh on bail at this stage could lead to him continuing such illegal activities and that the investigation was still ongoing.
After carefully considering the arguments from both sides and perusing the application, relevant documents, the prosecution’s reply, and the material on record, Additional Sessions Judge K.P. Kshirsagar delivered the oral order granting bail to Shaikh.
In his order, the Judge noted that Shaikh was accused of an offence punishable under Section 8(c) read with Section 22(b) of the NDPS Act, which carries a potential punishment of up to 10 years imprisonment and a fine of up to Rupees One lakh. However, the crucial point highlighted by the court was that the quantity of Mephedrone recovered was admittedly non-commercial and fell within the “intermediate quantity” bracket. This distinction is vital as it exempts the case from the rigorous bail conditions stipulated under Section 37 of the NDPS Act, which are typically applied in cases involving commercial quantities of drugs.
The court also took into account the fact that Shaikh had been in custody since August 1, 2023, and that nothing further appeared to be recoverable from him at this stage. Furthermore, the court observed that the investigation concerning Shaikh seemed to be nearing completion. Notably, the prosecution did not present any evidence suggesting that Shaikh had a history of involvement in similar offences.
Justice Kshirsagar emphasized the fundamental right to personal liberty and the presumption of innocence until guilt is proven. He stated that the primary objective of bail is to ensure the accused’s presence during the trial, and it should not be used as a punitive or preventive measure. The court noted that prima facie, Shaikh had cooperated during the investigation and had undertaken to continue his cooperation throughout the trial.
Considering the material on record, the court was of the opinion that Shaikh’s presence could likely be secured even if he were released on bail. The court also believed that the prosecution’s interests could be adequately safeguarded by imposing certain conditions on his release.
Therefore, taking into account the nature and gravity of the offence, Shaikh’s age, his lack of prior criminal record, and the prima facie assessment of the evidence, the court concluded that releasing him on bail at this stage was unlikely to prejudice the ongoing investigation or the interests of society at large.
Consequently, the court passed the order allowing NDPS Bail Application No. 670/2023. Mohmad Yunus Khwaja Mohinuddin Shaikh was ordered to be released on bail in C.R. No. 255/2023 upon furnishing a personal bond of ₹50,000/- (Rupees Fifty thousand only) with one surety of a like amount, subject to the following conditions:
(a) Shaikh shall cooperate with the Investigating Officer and shall make himself available for interrogation by the concerned Investigating Officer as and when required.
(b) Shaikh shall not tamper with prosecution evidence or influence the prosecution witnesses in any manner.
(c) Shaikh shall cooperate in the early disposal of the trial.
(d) Shaikh shall not commit any criminal offence while on bail.
(e) Shaikh and his surety shall provide their respective mobile numbers and present address and proof of residence at the time of execution of the bail bond/surety bond.
The order concluded by stating that NDPS Bail Application No. 670/2023 was disposed of accordingly. The order was pronounced in open court on September 4, 2023, and subsequently signed and uploaded on September 8, 2023.
This judgment highlights the crucial distinction made under the NDPS Act between different quantities of drugs seized and the corresponding implications for bail considerations, particularly concerning the applicability of the stringent Section 37. The granting of bail in this case underscores the court’s adherence to the principles of personal liberty and the presumption of innocence, especially when the quantity of the alleged contraband falls below the commercial threshold.