Bombay High Court
Ajaz Mohd Shafi Khan vs The State Of Maharashtra on 7 December, 2018
Author: Prakash D. Naik
Bench: Prakash D. Naik
Sknair 904-ba-3022-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3022 OF 2018
Ajaz Mohd. Shafi Khan ... Applicant
Vs.
The State of Maharashtra ... Respondent
...
Mr. Ayaz Khan a/w Ms. Zehra Charania and Ms. Sheetal Shah for
the applicant.
Mr. A.R. Kapadnis, APP for the Respondent-State.
Mr. S.R.Mutkule, API, Crime Branch, Navi Mumbai is present.
...
CORAM : PRAKASH D. NAIK, J.
DATE : 7th DECEMBER, 2018.
P.C.
1. This is an application for bail under Section 439 of Code of
Criminal Procedure. The applicant was arrested on 23rd October,
2018 in connection with C.R. No. 210 of 2018 registered with
C.B.D. Belapur Police Station for the offence punishable under
Section 8(c) read with 22(b) of N.D.P.S. Act.
2. The prosecution case is that Complainant attached to Anti
Narcotic Cell and Property Cell of Crime Branch, Navi Mumbai had
received an information that accused is coming to sell MDMA to
his customers at Hotel K-State, Sector-11, CBD Belapur between
22.00 hours to 23.00 hours. The complainant furnished the said
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information to Police Inspector Ravindra Budhwant and reduced
the same in the station diary. The information was conveyed to
ACP & DCP of Crime Branch, Navi Mumbai. The copy of
information was also forwarded to superior officer for permission
to conduct the raid. After receiving the permission to conduct the
raid, the panchas were called in the office, the raiding material
was taken in custody and a pre-trap panchanama was prepared
which was completed at 21.00 hours on 23 rd October, 2018. The
raiding party left the police station and reached Hotel K-Start at
21.40 hours. On inquiry at the reception counter, the officer
learnt that the accused was occupying the room No. 6003 of said
Hotel and on knocking the door the applicant had opened the
door. Raiding party introduced themselves and entered into the
room. On being searched 8½ pills of contraband substance
alleged to be MDMA were recovered from the pant pocket of the
applicant. The said pills were found to be weighing 2.30 gms.
Officer drew one sample of 0.20 gms. (1 pill) and kept the same in
a plastic pouch by stapling the same. The plastic pouch was again
kept in a khakhi envelope and the label was affixed thereon which
was signed by the officer and the panchas and the same was sealed
and marked as A-1. The other remaining bulk quantity was
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weighed alongwith plastic pouch and it was found to be 2.10 gms.
The same was stapled, kept in an envelope, labels were affixed,
the same was packed and sealed. The applicant was arrested and
taken into custody. Subsequently, he was produced before the
competent Court for remand. By order dated 23 rd October, 2018,
applicant was remanded in police custody till 25th October, 2018.
On the next date he was remanded to judicial custody.
3. Applicant had preferred an application for bail before the
Sessions Court which was rejected by order dated 2nd November,
2018.
4. Learned counsel for the applicant submitted that the
contraband which was recovered from the applicant was weighing
2.30 grams of MDMA which is non-commercial quantity. It is also
submitted that after the seizure of the contraband the sample was
drawn from one pill which was weighing 0.20 grams. The sample
drawn in present case is in violation of the mandate of Hon'ble
Supreme Court. Section 37 of NDPS Act will not be attracted as
the seized contraband is non-commercial quantity. Learned
counsel for the applicant relied upon the several decisions.
Particularly, he also placed reliance of the Hon'ble Supreme Court
in the case of Birbal Prasad @ Birbal Prasad Sah @ Birbal
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Prasad Sao @ Birbal Sah V/s State of Bihar 1, in the said case
bail was granted in respect to contraband of non-commercial
quantity. Learned advocate also relied on several decisions of the
Court wherein it was observed that when the contraband does not
fall within category of commercial quantity rigors of Section 37 of
NDPS Act would not apply. In the factual matrix of this case, the
applicant is found to be in possession of non-commercial quantity
and in view of settled principles of law the rigors of Section 37
would not attract. There are no criminal antecedents under the
NDPS Act against the applicant.
4. Learned APP submitted that the applicant was found in
possession of the 2.30 grams MDMA. The co-accused is
absconding.
5. The Sessions Court, while rejecting application for bail has
observed that one Lalit resident of Punjab is absconding. His
address and full name is not yet revealed. The said absconding
accused is to be traced and arrested in this case. If the applicant is
released on bail there is every possibility that the applicant will
help the absconding accused and tamper with the prosecution
evidence. Although, the applicant has been in custody since the
1. (2018) 2 SCC (Cri) 672
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date of arrest, no details of such person were revealed. The
applicant contends that he is social activist and runs an NGO. He
is an actor and running production house. In the light of legal
principles and factual aspects of the matter, case for grant of bail is
made out. Hence, I pass the following order.
ORDER
i. Criminal Bail Application is allowed; ii. Applicant is directed to be released on bail in connection with C.R. No. 210 of 2018 registered with C.B.D. Belapur Police Station on furnishing P.R. Bond in the sum of Rs.25,000/- with one or more sureties in the like amount; iii. Applicant is permitted to furnish cash security in the sum of Rs.25,000/- for a period of four weeks; iv. Applicant shall report to the concerned Police Station once in a month on first Saturday between 10 a.m. to 12 noon till further order.
v. Applicant shall not tamper with the evidence. vi. Criminal Bail Application stands disposed off.
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