Junaid Shamshuddin Shaikh vs State of Maharashtra

By way of the present application filed under Section 439 of the Code of Criminal Procedure, 1973, the applicant is seeking his release on regular bail in connection with Crime Register No.240 of 2024 registered with Santacruz Police Station, for offences punishable under Sections 8(c), 22(c), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "NDPS Act").

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The case of the prosecution, in brief, is that, on the intervening night of 19th and 20th February 2024, a police officer, while on patrolling duty, noticed the applicant standing near a drain in a suspicious manner. On being questioned, the applicant allegedly gave evasive replies, which raised further suspicion. The said officer then called two panch witnesses and, after following

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due procedure, inquired the name of the applicant, which he revealed. It is alleged that a white transparent plastic bag was found in the pocket of the jacket worn by the applicant. Upon inspection of the said bag, it was found to contain white coloured powder, which the applicant disclosed to be M.D. (Methedrone). The said substance, along with the plastic bag, was weighed and found to be 64 grams. After completing the panchnama and sealing procedure, the applicant was arrested on 20th February 2024.

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Learned Advocate appearing for the applicant submitted that the entire seizure is vitiated due to non-compliance of mandatory provisions of Section 50 of the NDPS Act. It is submitted that the applicant was not informed of his legal right to be searched in presence of a Gazetted Officer or Magistrate, thereby causing breach of procedural safeguards. It is further submitted that the applicant has no past criminal antecedents, is a permanent resident of Mumbai, and has deep roots in society. It is urged that continued detention of the applicant is not necessary, and that he is willing to abide by any conditions that may be imposed by this Court. On these grounds, prayer is made for grant of regular bail.

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On the other hand, learned APP for the State has opposed the application, by submitting that the contraband allegedly recovered from the applicant is of commercial quantity as defined under the NDPS Act, and therefore the rigours of Section 37 are squarely attracted. It is further submitted that during investigation, the applicant's statement has disclosed possible links with a larger drug distribution network, which is under investigation. Attention

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is drawn to the panchanama of the scene of offence, where it is recorded that the applicant was informed of his right under Section 50 of the NDPS Act and that he declined to exercise the same, and signed a written declaration in the presence of panch witnesses. It is, therefore, submitted that the requirements of Section 50 have been duly complied with. Learned APP also placed reliance on the presumption of culpable mental state under Section 35 of the NDPS Act, and urged that the applicant has failed to rebut the same. On these grounds, it is prayed that the present bail application be rejected.

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I have carefully considered the rival submissions advanced by the learned counsel for the applicant and the learned APP for the State. I have also perused the material placed on record, including the FIR, panchanama, and the relevant provisions of the NDPS Act.

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At the outset, it must be noted that the quantity of contraband allegedly recovered from the possession of the applicant is 64 grams of Methedrone (M.D.), which falls within the category of commercial quantity as per the Notification issued under the NDPS Act. In such a case, the statutory bar contained in Section 37(1)(b) of the Act becomes applicable. As per the said provision, no person accused of an offence involving commercial quantity shall be released on bail unless the Court is satisfied that (i) there are reasonable grounds for believing that the accused is not guilty of such offence, and (ii) that he is not likely to commit any offence while on bail.

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The the conditions under Section 37 are not mere procedural formality, but are mandatory and substantive in nature, and must be strictly complied with before granting bail in offences involving commercial quantity.

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Coming to the present case, the seizure panchanama, prima facie, indicates that the applicant was informed of his right under Section 50 of the NDPS Act. The record reflects that he declined to be searched before a Gazetted Officer or Magistrate and signed the necessary declaration in presence of two independent panch witnesses. At this stage, there is no material to conclude that the said procedure was not followed. The veracity or admissibility of such declaration is a matter for trial and cannot be determined at this preliminary stage.

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The statement of the applicant allegedly reveals possible links to a larger narcotic distribution network. The question of conspiracy under Section 29 of the NDPS Act is also under probe. The presumption under Section 35 regarding the existence of culpable mental state operates against the applicant, and there is no material brought on record to rebut such presumption at this stage.

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In view of the seriousness of the allegations, the nature and quantum of the contraband, and the bar under Section 37 of the NDPS Act, I do not find this to be a fit case for exercise of discretion in favour of the applicant for grant of bail. The applicant has failed to make out a case that there are reasonable grounds to believe that he is not guilty of the offence, and that he is not likely

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to commit any such offence while on bail.

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Accordingly, the bail application stands rejected.

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(AMIT BORKAR, J.)

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Junaid Shamshuddin Shaikh v. State of Maharashtra

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Junaid Shamshuddin Shaikh v. State of Maharashtra

Case brief

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