Mumbai, July 28, 2022 – Nihal Ahmed Shaikh’s bail application has been rejected by the Special Court for Narcotic Drugs and Psychotropic Substances (NDPS) Act in Mumbai. Shaikh was arrested in connection with Crime No. 139/2022, registered with the Anti-Narcotics Cell (ANC) Azad Maidan Unit, for offenses under Section 8(c) read with Sections 22(c) and 29 of the NDPS Act, 1985.

The Allegations

According to the prosecution, on June 15, 2022, during a patrolling duty, the police found Shaikh and co-accused Maula Mehboob Makandar carrying polythene gunny bags. Upon search, they seized 50 bottles of Maxcoff cough syrup (100 ml each) containing codeine phosphate from Shaikh and another 50 bottles from Makandar. Subsequently, based on Makandar’s information, the police raided the house of absconding accused Asif Memon and seized an additional 150 bottles.

Shaikh’s Defense and Arguments

Advocate S.S. Adsul, representing Shaikh, argued that his client was innocent. He pointed out that co-accused Makandar had stated that they obtained the bottles from Asif Memon of Kashimira, implying that Shaikh did not have conscious possession of the seized articles. He also argued that the quantity of codeine in each bottle (2.3 grams) and the total quantity seized from him (50 bottles) did not constitute an offense.

Prosecution’s Objections

Additional Public Prosecutor (APP) Geeta Nayyar opposed the bail application, arguing that the total seizure of 230 bottles, containing approximately 4 kg of codeine phosphate, constituted a commercial quantity. Therefore, the stringent bail conditions under Section 37 of the NDPS Act applied.

Court’s Observations and Decision

Special Judge (NDPS) A.V. Kharkar considered the submissions and the documents on record. The court noted that 50 bottles were recovered from Shaikh on the spot, and a total of 230 bottles were recovered in the entire operation. The court emphasized that if an accused fails to show that the contents of the bottles were meant for therapeutic purposes, the entire codeine phosphate content falls under the NDPS Act.

“It is settled law that then the applicant does not show that contents of the bottle were meant for therapeutic purpose then in that event the entire content Codeine Phosphate of the syrup falls within provision of NDPS Act,” Judge Kharkar stated in the order.

The court concluded that the possession of 230 bottles, each containing 100 ml, constituted a commercial quantity, and therefore, the stringent bail conditions under Section 37 of the NDPS Act applied.

The court discussed the limitations imposed by Section 37, which require the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is unlikely to commit any offense while on bail.

“The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence,” Judge Kharkar stated.

The court found that Shaikh had failed to demonstrate reasonable grounds for believing he was not guilty and that he possessed the bottles for therapeutic purposes.

“In my opinion the meter of available section 37 of NDPS Act have not been satisfied in the fact of instant case. At this stage, it is not safe to conclude that the accused has successfully demonstrate that there are reasonable ground to believe that he is not guilty of the offence alleged against him,” Judge Kharkar stated.

Order

Bail Application No. 1590/2022 was rejected.

Key Points

• Commercial Quantity: The court determined that the seized quantity of codeine phosphate constituted a commercial quantity.
• Section 37 NDPS Act: The court emphasized the stringent bail conditions under Section 37 of the NDPS Act.
• Lack of Therapeutic Purpose: Shaikh failed to show that the bottles were possessed for therapeutic purposes.
• Conscious Possession: The court inferred conscious possession of the bottles.
• Stringent Bail Conditions: The court emphasized that the conditions for bail under NDPS act are very stringent.
• Cumulative Conditions: The court clarified that the conditions under section 37 are cumulative.