Greater Bombay, September 18, 2023 – The Special Court for Narcotic Drug and Psychotropic Substances Act, 1985 (NDPS Act), at Gr. Bombay, presided over by Additional Sessions Judge K.P. Kshirsagar (C.R.43), has rejected the bail application of Mustafa Fakir Mohammed Shaikh (aged 31), accused in Spl. LAC/C.R. No.415/2023 registered at Shivaji Nagar police station, Mumbai. Shaikh was arrested for offences punishable under section 8(c) read with section 22 of the NDPS Act, 1985. The order in NDPS Bail Application No. 686 of 2023 was pronounced on September 14, 2023, and uploaded on September 18, 2023.
Ld. Adv. Mr. Saquib Shaikh appeared for the applicant/accused, and Ld. APP Mr. Rajput represented the respondent/prosecution.
Prosecution’s Case:
According to the prosecution, on May 10, 2023, 15 grams of Mephedrone (MD) were recovered from the possession of the applicant/accused. Further investigation, based on the applicant’s information, led to the recovery of 50 bottles of 100 ml each containing Chlorpheniramine Maleate & Codeine Phosphate syrup (PHENSIREST). Consequently, an offence punishable under section 8(c) read with section 22 of the NDPS Act was registered against the applicant.
Applicant’s Arguments for Bail:
The learned Advocate for the applicant argued that the applicant was a permanent resident of Mumbai and a young person. He stated that the applicant was ready to abide by all conditions imposed by the court and had no prior criminal antecedents under the NDPS Act. He relied on citations from the Bombay High Court and the Apex Court.
Prosecution’s Opposition:
The learned APP argued that a commercial quantity of Codeine Phosphate (present in the recovered syrup) and 15 grams of Mephedrone (MD) were recovered from the applicant. Due to the commercial quantity, the stringent provisions of Section 37 of the NDPS Act were applicable. The APP also stated that a wanted accused in the case was yet to be arrested, the investigation was ongoing, and the applicant had several criminal antecedents. The prosecution argued that the applicant had not demonstrated reasonable grounds to believe he was not guilty and that there were reasonable grounds to believe he was guilty. They contended that the conditions under Section 37 of the NDPS Act were not satisfied and that releasing the applicant could hamper the investigation.
Court’s Reasoning for Rejecting Bail:
The Special Judge noted that the applicant was accused of offences under Section 8(c) read with Section 22 of the NDPS Act, 1985. Considering the recovery of a commercial quantity of contraband from the applicant’s conscious possession, the court held that the stringent provisions of Section 37 of the NDPS Act were applicable.
The court referred to Section 37(2) of the NDPS Act, emphasizing that the limitations on granting bail under this section are in addition to those under the Code of Criminal Procedure or any other law. The legislature incorporated these limitations in public interest to control and eradicate the menace of drugs. Therefore, for granting bail, the twin conditions under clause (b) of sub-section (1) of Section 37 must be satisfied. The court clarified that a detailed examination of evidence was not necessary at the bail stage, and the negation of bail is the rule, while the grant is an exception under this clause.
The court found no prima facie violation of any mandatory provision of law. It stated that the question of substantial compliance with Section 42 or Section 50 of the NDPS Act was a matter of fact to be determined during the trial.
The Special Judge emphasized that under Section 37 of the NDPS Act, the burden was on the accused to show reasonable grounds to believe that he was not guilty. The court found that the applicant had failed to demonstrate such reasonable grounds. Based on the material on record, the court found reasonable grounds to believe that the applicant had committed the alleged offence. Furthermore, considering the nature and quantity of the contraband recovered and the applicant’s criminal antecedents, the court was not satisfied that the applicant would not commit a similar offence if released. Thus, the conditions under Section 37 of the NDPS Act were not fulfilled, and the embargo on granting bail was not lifted.
The court found no prima facie material to doubt the genuineness of the prosecution case or any inherent infirmities or improbabilities. Considering the nature of the offence, the court could not rule out the possibility of the applicant tampering with evidence, influencing witnesses, or becoming involved in similar offences if released. With the investigation still pending, the court found a necessity for the applicant’s further detention.
Considering the above factors and the prima facie appreciation of the material on record, the court concluded that releasing the applicant at this stage was likely to be prejudicial to the interest of society at large, and a liberal approach to bail in such NDPS Act offences was unwarranted.
Order of the Court:
Special Judge K.P. Kshirsagar passed the following order:
- NDPS BA No.686/2023 of applicant/accused Mustafa Fakir Mohammed Shaikh in Spl. LAC/C.R. No.415/2023 in NDPS RA No.659/2023 is rejected.
- NDPS BA No.686/2023 is disposed of accordingly.
This order underscores the strict approach taken by the court in cases involving commercial quantities of narcotics under the NDPS Act, where the stringent conditions for bail under Section 37 must be met by the accused. The applicant’s failure to demonstrate reasonable grounds of not being guilty and the recovery of a commercial quantity were key factors in the rejection of his bail application. The court also considered the applicant’s criminal antecedents and the potential for obstruction of justice if released.