Bombay High Court
Khan Abusufiyan Shakil Ahmed vs Union Of India And Anr on 2 November, 2023
Author: M. S. Karnik
Bench: M. S. Karnik
2023:BHC-AS:33264
Urmila Ingale 930-ba-884-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 884 OF 2023
KHAN ABUSUFIYAN SHAKIL AHMED ..APPLICANT
VS.
1. UNION OF INDIA
2.THE STATE OF MAHARASHTRA ..RESPONDENT
Mr. Dilip Mishra a/w Mr. Ayaz Khan, for the Applicant.
Ms. Manisha Jagtap, for Respondent No.1.
Ms. Rutuja Ambekar, APP for the State- Respondent No.2.
CORAM : M. S. KARNIK, J.
DATE : NOVEMBER 2, 2023
P.C. :
1. Heard learned counsel for the applicant, learned
counsel for the respondent no.1 and learned APP for the
State.
2. This is an application for bail in respect of the ofence
punishable under sections 22(b), 27, 27A, 28, 29, 30 and 35
of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereafter 'the NDPS Act' for short) registered vide
C.R. No. NCB/MZU/CR-73/2021 registered with Narcotic
Control Bureau, Mumbai Zonal Unit.
3. The applicant is the accused no.3. The applicant was
arrested on 26/08/2021.
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4. The accused nos. 1 and 2 were initially arrested. The
accused no.1 was found with commercial quantity of
contraband Mephedrone (MD). The accused no. 2 was not
found in possession but according to prosecution, he was
actively involved in dealing in contraband. The accused
no.4 and accused no. 5 are the accused from whom the
accused no.1 procured supply of contraband. The applicant
is the accused no.3. The accused no. 5 who is alleged to be
the mastermind of the cartel and is the main supplier of MD,
during the course of investigation, it was revealed that the
accused no.5 is doing MD trafcking business through one
of his main peddler namely Khan Abusufyan Shakil Ahmed
i.e. is the present applicant-accused no.3. The house of
applicant was searched on 26/08/2021. From the person of
the applicant quantity of 10.2 grams of MD is recovered.
The same is an intermediate quantity.
5. Learned counsel for the respondent no.1 Ms. Jagtap
opposed the application. My attention is invited to the
afdavit-in-reply fled on behalf of the respondents. It is
submitted that the applicant is a part of the chain and
involved in serious ofence including illicit drug trafcking.
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It is submitted that the applicant has nexus with other co-
accused who are already arrested in the said C.R.. It is
submitted that commercial quantity of the contraband was
recovered from the other accused and therefore even the
applicant is concerned with the commercial quantity and
therefore the rigours of section 37 of NDPS Act will apply. It
is further submitted that the applicant was found in
possession of contraband and it is the contention that the
applicant is involved in illicit drug trafcking. Learned
counsel submitted that there are materials to indicate the
nexus and role of the applicant in the conspiracy of
fnancing, peddling, distribution, preparation, consumption,
dealing, procurement, transportation for the purposes of
narcotic drugs and psychotropic substance. My attention
is invited to the criminal antecedents which the applicant
has in respect of similar ofence when he was found in
possession of non-commercial quantity. The applicant has
been enlarged on bail in that C.R.
6. I have heard learned counsel. The accusation of the
prosecution is that the applicant and the accused no. 5 who
is mastermind of the cartel and is the main supplier of MD is
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doing his MD trafcking business through one of his main
peddler i.e. the applicant. The accused no.5 fled an
application for bail before the Special Court. By an order
dated 21/06/2023, the accused no.5 has been enlarged on
bail. It will be pertinent to refer the relevant portion of the
order passed by the Special Court while enlarging the
accused no.5 on bail. Paragraphs 5 to 7 of the said order
read thus :
"5. The counsel for the accused has taken the Court
through the reply fling by the Intelligence Ofcers
A.K. Singh. He has pointed out that in the reply
except vague and general allegations that the
applicant was dealing in narcotics, there is no
specifc role attributed to the applicant. SPP for State
has taken the Court through the complaint para 65 in
particular in which it is mentioned that one of the co-
accused Shariq Wali Sayed has stated that the
applicant is a supplier of Mephedrone and that this
Shariq Wali Sayed has sold 52 grams of Mephedrone
to applicant Vijay Kumar Singh, an amount of
Rs.78,000/- was paid to him through mobile number
of the wife of the applicant. This role is conspicuously
absent in the reply fled by the Intelligence Ofcer.
The counsel for the accused has taken me through
the statement of Shariq Wali Sayed at page 258 of
the compilation as well as the statement at 278 of
the compilation. In none of the statement there is
mentioned of the name of the accused no.1. So also
in the lists of documents there is no document which
shows that any amount was transferred from the
account of the wife of the applicant to any of the co-
accused.
6. On going through the charge-sheet, there is
nothing on record in form of Whatsapp chat or any
other documents to show that any of the accused
was in contact with the applicant or that there was
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any transferred of money either by the applicant or
any transfer of money from the account of the wife of
the applicant no.1 at the instance of the applicant.
7. In such case there is no evidence which would
prima facie show the involvement of the accused
no.1. There are reasons to believe that the accused
no.1 is not guilty of the ofences. Further, it is not the
case of the Intelligence Ofcer that the accused is
having any criminal antecedents. This would lead the
Court to believe that if released on bail, he would not
commit ofence of similar nature.䉼
7. Except section 67 statement of the applicant, which
according to the learned counsel for the respondent no.1
demonstrates that the applicant is involved in these
activities, prima facie, there is no other material placed on
record to show his involvement with the other co-accused
who were found in possession of the commercial quantity of
contraband. Furthermore, there is nothing on record to
show that order dated 21/06/2023 enlarging accused no.5
on bail has been challenged. It appears that the order
dated 21/06/2023 passed by the Sessions Court has
attained fnality. It is the prosecution's case that the
accused no.5 is the head of the cartel who is doing his
business through the present applicant. As the accused
no.5 has been enlarged on bail, even the present applicant
can be enlarged on bail. In any case, what is found in
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possession of the present applicant is an intermediate
quantity i.e. 10.2 grams of contraband MD. Though there is
criminal antecedent against the applicant where he was
found in possession of non-commercial quantity, that by
itself should not be a factor to deprive the applicant the
facility of bail in the facts and circumstances of the present
case. The applicant can be enlarged on bail by imposing
stringent conditions. Hence, the following order :-
ORDER
(a) The application is allowed.
(b) The applicant- Khan Abusufyan Shakil Ahmed in connection with C.R. No.NCB/MZU/CR-73/2021 registered with Narcotic Control Bureau, Mumbai Zonal Unit, shall be released on bail on his furnishing P.R. Bond of Rs.1,00,000/- with one or more solvent sureties in the like amount.
(c) The applicant shall attend the investigating Ofcer of Narcotic Control Bureau, Mumbai Zonal Unit once in fortnight on every frst and third Tuesday of the month between 10.00 a.m. and 1.00 p.m.
(d) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from 6/7 Urmila Ingale 930-ba-884-23.doc disclosing the facts to Court or any Police Ofcer. The applicant shall not tamper with evidence.
(e) On being released on bail, the applicant shall furnish his contact number and residential address to the Investigating Ofcer and shall keep him updated, in case there is any change.
(f) The applicant shall attend the trial regularly. The applicant shall co-operate with the trial Court and shall not seek unnecessary adjournments.
(g) The applicant shall not leave Mumbai, Mumbai Suburban District without permission of the trial Court till the trial concludes.
(h) The applicant shall surrender his passport, if any, to the investigating ofcer.
8. The application is disposed of.
(M. S. KARNIK, J.) 7/7 Signed by: Urmila P. Ingale Designation: PS To Honourable Judge Date: 02/11/2023 20:54:28