Mumbai, September 5, 2023 (Gr. Bombay Special Court): The Special Court for Narcotic Drug and Psychotropic Substances (NDPS) Act, 1985, at Gr. Bombay, presided over by Additional Sessions Judge K.P. Kshirsagar (C.R.43), has rejected the bail application of Asif @ Batla Yunus Qureshi, a 32-year-old accused in a drug possession case.
The order, dated September 5, 2023, addressed NDPS Bail Application No. 700 of 2023, filed by Qureshi under Section 439 of the Code of Criminal Procedure (Cr.P.C.) in relation to C.R. No. 310/2023 registered at Mankhurd police station, Mumbai. Qureshi was booked under section 8(c) read with section 22 of the NDPS Act, 1985.
Applicant’s Plea for Bail:
Advocate Ms. Jyoti Pangerkar, representing the applicant, argued that this was Qureshi’s first bail application. She stated that according to the prosecution, 23 bottles of 100 ml each containing Chlorpheniramine Maleate & Codeine Phosphate syrup (PHENSIREST) were recovered from Qureshi’s possession on May 16, 2023. The defense contended that only the pure quantity of codeine phosphate in the seized bottles should be considered, which would not amount to a commercial quantity. The applicant, a resident of Mumbai with no prior criminal record, was ready to abide by all conditions imposed by the court. Therefore, the defense prayed for bail.
Prosecution’s Strong Opposition:
The learned APP, Mr. P.J. Tarange, argued that the entire quantity of the seized syrup, including the neutral substance mixed with codeine, should be considered when determining the quantity of the contraband. Given that the total weight of the recovered syrup exceeded 1 kg, it qualified as a commercial quantity. Consequently, the stringent provisions of Section 37 of the NDPS Act were applicable. The prosecution argued that Qureshi had failed to demonstrate any grounds to believe he was not guilty of the alleged offense. On the contrary, the material on record suggested reasonable grounds to believe his guilt, thus he had not satisfied the conditions for bail under Section 37 of the NDPS Act.
Court’s Observations and Reasoning:
Additional Sessions Judge K.P. Kshirsagar referred to the judgment in the case of Hira Singh and Another Vs. Union of India and Another, stating that in cases involving the seizure of a mixture of narcotic drugs or psychotropic substances with one or more neutral substances, the entire quantity, including the neutral substance, must be considered for determining the quantity of the contraband. Therefore, the court found no merit in the applicant’s contention that only the pure quantity of codeine should be considered.
Based on this, the court concluded that the quantity of contraband recovered from Qureshi appeared to be of commercial quantity. The punishment for such an offense could extend up to 20 years imprisonment and a fine of up to One Lakh rupees, indicating a serious offense with severe punishment. Considering the commercial quantity recovered from Qureshi’s conscious possession, the rigors of Section 37 of the NDPS Act were indeed applicable.
The court emphasized that under Section 37(2) of the NDPS Act, the limitations on granting bail are in addition to those under the Cr.P.C. or any other law. To grant bail, the twin conditions under clause (b) of sub-section (1) of Section 37 must be satisfied: there must be reasonable grounds to believe that the accused is not guilty, and that he is unlikely to commit any offense while on bail.
The court found that Qureshi had failed to demonstrate any reasonable grounds to believe he had not committed the alleged offense. The material on record provided reasonable grounds to believe his involvement. Furthermore, considering the nature of the offense and the large quantity of contraband recovered, the court was not satisfied that Qureshi would not commit a similar offense if released on bail. Thus, the conditions under Section 37 of the NDPS Act were not met, and the embargo on granting bail was not lifted.
The court also noted that the investigation was still ongoing, and Qureshi’s release could hamper further investigation. There was no prima facie material to doubt the genuineness of the prosecution’s case, and the possibility of Qureshi tampering with evidence or influencing witnesses could not be ruled out. Therefore, the court found a continued necessity for Qureshi’s detention.
Considering the facts, discussion, and prima facie appreciation of the material, the court concluded that releasing Qureshi at this stage would likely be prejudicial to the interest of society at large, and a liberal approach to bail in such NDPS offenses was unwarranted.
The Order:
Additional Sessions Judge K.P. Kshirsagar passed the following order:
- NDPS Bail Application No. 700/2023 of applicant/accused Asif @ Batla Yunus Qureshi is rejected.
- NDPS Bail Application No. 700/2023 is disposed of accordingly.
The rejection of bail highlights the strict stance of the court in cases involving the recovery of commercial quantities of drugs under the NDPS Act, particularly concerning the limitations imposed by Section 37 of the Act.