Bombay High Court
Mohd Hussain Shaikh @ Shivchand vs The State Of Maharashtra on 1 August, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:32576
ba915-2025-Final.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.915 OF 2025
Mohd. Hussain Shaikh @ Shivchand ... Applicant
V/s.
The State of Maharashtra ... Respondent
ATUL Mr. Vikas Kolekar with Mr. Kunal U. Shirgire, Ms.
GANESH
KULKARNI
Digitally signed by
Mitalee Gaikwad, and Ms. Neeta Kolekar for the
ATUL GANESH
KULKARNI
Date: 2025.08.01
applicant.
13:36:40 +0530
Ms. Supriya I. Kak, APP for the respondent-State.
Mr. Awale, PSI, ANC, Azad Maidan Police Station, is
present.
CORAM : AMIT BORKAR, J.
DATED : AUGUST 1, 2025
P.C.:
1. The present application is filed by the applicant under
Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as "BNSS"), seeking grant of regular bail in
connection with NDPS Special Case No. 752 of 2024, arising out of
Crime Register No. 87 of 2023, registered with the Anti-Narcotics
Cell (ANC), Azad Maidan Unit, for offences punishable under
Sections 8(c) read with 22(c) and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as the
"NDPS Act").
ba915-2025-Final.doc
2. As per the case of the prosecution, on 18th October 2023,
the officers of ANC, Azad Maidan Unit, while on patrolling duty,
around 18:45 hours, noticed one person acting suspiciously near
Electric Pole No. TIR 002/062 A 468, situated close to Link Road,
Goregaon, Mumbai. The said person, who was later identified as
accused No.1, was apprehended and searched. Upon such search,
100 grams of a contraband substance, namely Mephedrone, was
recovered from him. During the course of investigation, accused
No.1 disclosed the name of co-accused No.2, who was
subsequently traced and searched. From the possession of accused
No.2 also, 100 grams of Mephedrone was recovered. Further
investigation led to the arrest of co-accused No.3, from whom yet
another 100 grams of Mephedrone was seized.
3. After the arrest of accused No.3, he is alleged to have
disclosed the involvement of the present applicant in the chain of
illegal supply of narcotic substance. It is alleged that the applicant
was acting as one of the links in the chain, by supplying the
contraband through the co-accused to customers. Based on this
disclosure, a trap was laid and the present applicant was
apprehended at Swaraj Hind Building Compound, Malad Malwani,
during late night hours, while he was allegedly waiting to deliver
the contraband. It is further alleged that in compliance with the
mandatory provisions of Section 50 of the NDPS Act, the applicant
was duly searched and found to be in possession of 20 grams of
Mephedrone.
4. Learned Advocate appearing on behalf of the applicant has
submitted that, as per the case of the prosecution, the present
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applicant has been allegedly found in possession of 20 grams of
Mephedrone (MD), which falls within the category of non-
commercial quantity as defined under the Narcotic Drugs and
Psychotropic Substances Act, 1985. It is, therefore, contended that
the stringent conditions imposed under Section 37 of the NDPS Act
are not attracted to the present case. It is further submitted that
the investigation in the matter is complete, and the charge-sheet
has already been filed before the competent Court. Hence, no
further custodial interrogation of the applicant is warranted. The
applicant has been arrested on 30th April 2024 and has undergone
sufficient period of incarceration. Therefore, it is prayed that the
applicant be released on regular bail, subject to such conditions as
may be deemed fit by this Court.
5. On the other hand, learned APP for the State vehemently
opposed the bail application and submitted that though the
applicant has been found in possession of only 20 grams of
Mephedrone, the case of the prosecution is not restricted to the
individual recovery from the applicant. It is submitted that the role
of the applicant surfaces from the disclosure statement of accused
No.3, wherein he revealed that the contraband was handed over to
the present applicant for being further delivered to a wanted
accused, namely Javed Siddiqui. Acting upon such disclosure, the
present applicant was apprehended.
6. It is submitted that during investigation, the mobile handset
of the applicant came to be seized, and upon examination of the
said device, photographs of Mephedrone packets were found.
These photographs, according to the prosecution, indicate the
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active involvement of the applicant in the handling and possible
distribution of the contraband substance. Further, it is submitted
that the applicant led the investigating team to the house of
wanted accused Javed Siddiqui, from where another mobile phone
was recovered, allegedly containing incriminating chats and
obscene videos.
7. The learned APP also pointed out that the applicant is
already implicated in Crime No. 40 of 2022 registered with Vaidya
Police Station for offences punishable under Sections 8(c), 22-B
and 29 of the NDPS Act. It is, therefore, submitted that the
applicant is a habitual offender, having nexus with narcotics trade
and plays a continuing role in the illicit trafficking of psychotropic
substances. It is further contended that although the applicant was
not individually found in possession of commercial quantity, his
role as a conspirator under Section 29 of the NDPS Act is clear and
prima facie established through statements and circumstantial
evidence. Hence, the applicant cannot claim to be treated
differently or separately from accused Nos.1, 2, and 3, each of
whom were allegedly found in possession of commercial quantity
of Mephedrone.
8. In support of the prosecution's case, the learned APP placed
reliance on the decision of a Coordinate Bench of this Court in Bail
Application No. 3791 of 2023, in the case of Erum Mohamed Iqbal
Bashey v. Union of India, decided on 18th April 2024, wherein it
has been observed that even if the applicant is not found in
physical possession of the contraband, the bar under Section 37 of
the NDPS Act would apply if the case involves commercial
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quantity, and the applicant is arraigned as an accused under
Section 29 along with co-accused from whom commercial quantity
is recovered. In the said decision, the Court held that the absence
of physical possession by the applicant is not of decisive
significance when the applicant's role in the conspiracy is prima
facie made out.
9. I have given my thoughtful consideration to 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 charge-sheet and relevant
statements.
10. It is not in dispute that the present applicant was found in
possession of 20 grams of Mephedrone (MD), which is admittedly
a non-commercial quantity. As per the Notification dated
19.10.2001 issued under the NDPS Act, the commercial quantity
for Mephedrone is 50 grams and above. Therefore, by itself, the
contraband allegedly recovered from the present applicant would
not attract the bar under Section 37(1)(b) of the NDPS Act.
11. The prosecution, however, has invoked Section 29 of the
NDPS Act, alleging that the present applicant is a part of a larger
conspiracy involving co-accused Nos. 1 to 3 and one absconding
accused, Javed Siddiqui, from whom substantial quantity of
contraband was either recovered or connected. It is the case of the
prosecution that the applicant acted as one of the links in the chain
of procurement and supply, and that his disclosure led the police to
Javed Siddiqui, from whose premises a mobile phone with alleged
ba915-2025-Final.doc
chats and videos was recovered.
12. At this stage, it is necessary to bear in mind that Section 29
makes a person liable for conspiracy to commit offences under the
NDPS Act. However, even in cases alleging conspiracy, the Court is
required to examine whether there is prima facie material to
connect the applicant with the recovery of commercial quantity, or
if the allegations are vague and inferential. The mere fact that the
co-accused were found in possession of commercial quantity
cannot be mechanically used to deny bail, especially when the
present applicant is not shown to be directly involved in
procurement or possession of commercial quantity, and the
material against him is largely circumstantial.
13. The reliance placed by the learned APP on the judgment of
the Coordinate Bench in Erum Mohamed Iqbal Bashey (supra) is
noted. However, the facts in that case were distinct, as the Court
had found specific and direct material indicating the applicant's
controlling hand in the entire narcotic transaction involving
commercial quantity. In the present case, however, no recovery of
commercial quantity is made from the applicant, and his
complicity is sought to be established only on the basis of
disclosure statements and mobile phone photographs, the
evidentiary value of which shall be tested during trial.
14. It is also relevant to note that the charge-sheet has been
filed, and investigation is complete. The applicant has been in
custody since 30th April 2024. The trial is not likely to conclude in
the immediate future.
ba915-2025-Final.doc
15. The applicant is not shown to have played a dominant role in
the actual procurement or financing of the contraband. While it
may be true that he is implicated in one prior case under the NDPS
Act, no conviction has been recorded. In the absence of any
substantial material indicating habitual trafficking or prior
convictions, bail cannot be denied solely on the basis of previous
implication.
16. In light of the above, and considering that the quantity
allegedly recovered from the applicant is non-commercial, the
rigours of Section 37 NDPS Act are not attracted, the evidence is
primarily documentary and recovery-based, the trial is likely to
take time, and the applicant is in custody for nearly three months,
this Court is of the considered view that the applicant deserves to
be enlarged on bail, subject to stringent conditions to ensure his
availability during trial and to prevent any further unlawful
activity.
17. The applicant, Mohd. Hussain Shaikh @ Shivchand, shall be
released on regular bail in connection with NDPS Special Case No.
752 of 2024, arising out of Crime Register No. 87 of 2023,
registered with ANC, Azad Maidan Unit, for offences punishable
under Sections 8(c), 22(c), and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, on his executing a personal
bond in the sum of ₹50,000/- (Rupees Fifty Thousand only) with
one or two solvent sureties in the like amount, subject to the
following conditions:
ba915-2025-Final.doc
(i) The applicant shall not tamper with the prosecution
evidence or attempt to influence any witnesses in any
manner.
(ii) The applicant shall not leave the jurisdiction of
Mumbai without prior permission of the trial Court.
(iii) The applicant shall attend the trial Court on every date
of hearing unless specifically exempted.
(iv) The applicant shall furnish his mobile number and
residential address to the Investigating Officer, and shall
inform the Investigating Officer and the trial Court in case of
any change in the same.
(v) The applicant shall cooperate with the trial
proceedings and shall not commit any offence of like nature
during the pendency of the trial.
18. If any of the above conditions are found to be violated, it
shall be open for the prosecution to move for cancellation of bail.
19. Bail application is accordingly disposed of.
(AMIT BORKAR, J.)
