Bombay High Court
Mohd Hussain Abdullal Khan vs State Of Maharashtra on 25 September, 2025
2025:BHC-AS:40801
Prasad Rajput
(P.A.) 902-BA-734-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.734 OF 2025
Mohd Hussain Abdullal Khan ...Applicant
Versus
State of Maharashtra ...Respondent
Ms. Ashwinii Achari, for the Applicant.
Mr. Yogesh Y.Dabke, APP for the Respondent - State.
CORAM DR. NEELA GOKHALE, J.
DATED: 25th SEPTEMBER 2025
PC:-
1. By this Application, the Applicant seeks his
enlargement on bail in connection with C.R.No.714 of 2023
registered with the Mumbra Police Station, for the offences
punishable under Sections 8(c), 22(c) and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 ('NDPS').
2. It is the case of the prosecution that on 11 th July,
2023, while police staff were on patrolling duty, they received
specific information regarding the Applicant i.e., the Accused
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No.3 and the co-accused selling narcotic substance under Y
Junction Bridge. After receiving the information, the same
was conveyed to the superiors and upon directions from the
superiors, the patrolling party went to the spot of incident.
They found three suspicious persons one of whom was a
foreigner, in one corner giving a plastic bag to one of the other
two persons. Thereafter, the foreigner and the other persons
were apprehended by the police and the panchas were called.
After complying with all the requirements of the Act, all three
accused including the Applicant herein were arrested.
Approximately, 110 grams of Mephedrone (MD) was found
with the Accused No.2, which is of commercial quantity as per
the NDPS Act. Accused No.2 informed the police that the said
substance was given to him by Accused No.1, for himself and
for Accused No.3 i.e. the Applicant herein. The narcotic
substance was seized and sealed alongwith the mobile phones
and some cash was recovered from one of the accused. After
preparing an inventory, the charge-sheet was filed.
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3. The Applicant made a bail application before the
Special Judge, however, by order dated 4th February, 2025 the
said application was rejected. Hence, the Applicant is before
this Court for the reliefs as prayed.
4. Ms.Achari, learned counsel for the Applicant, at
the very outset, brought to my notice, orders dated 22 nd
August, 2022 and 12th December, 2024, passed by this Court
allowing bail applications filed by the co-accused persons.
Thus, Ms.Achari's first contention is that the present Applicant
whose role is much less in degree than the role attributed to
the co-accused, must also be enlarged on bail. She submits
that the Applicant was arrested on 11th July, 2023 and till date
no charges have been framed. She thus submits that even on
the ground of long incarceration the Applicant deserves to be
released on bail.
5. Mr.Dabke, learned APP representing the State,
contests the present Application. He submits that although the
co-accused are enlarged on bail for non-compliance of
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requirements under the Act, the police officials have complied
with all the requirements of the NDPS Act. He also places
reliance on the decisions of the Supreme Court in the matter
of Narcotics Control Bureau v. Kashif 1 and Bharat Aambale v.
State of Chhattisgarh2. In the case of Kashif (supra), the
Supreme Court has summarized its observations in paragraph
No.39 (v). Paragraph No.39 (v) of the said judgment reads
thus:-
"39. (i) ........
(ii) ........
(iii) ........
(iv) ........
(v) Any procedural irregularity or illegality found to
have been committed in conducting the search and
seizure during the course of investigation or thereafter,
would by itself not make the entire evidence collected
during the course of investigation, inadmissible. The
Court would have to consider all the circumstances and
1 (2024) 11 SCC 372
2 (2025) SCC OnLine SC 110
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find out whether any serious prejudice has been caused
to the accused."
6. The decision in the case of Bharat Aambale
(supra) follows the decision of Kashif (supra). Paragraph
No.50 (V) and (VI) read thus:-
"50. .....
(I) ....
(II) ....
(III) ....
(IV) ....
(V) Mere non-compliance of the procedure under
Section 52A or the Standing Order(s) / Rules thereunder will
not be fatal to the trial unless there are discrepancies in the
physical evidence rendering the prosecution's case doubtful,
which may not have been there had such compliance been
done. Courts should take a holistic and cumulative view of
the discrepancies that may exist in the evidence adduced by
the prosecution and appreciate the same more carefully
keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the
prosecution, oral or documentary inspires confidence and
satisfies the court as regards the recovery as-well as conscious
possession of the contraband from the accused persons, then
even in such cases, the courts can without hesitation proceed
to hold the accused guilty notwithstanding any procedural
defect in terms of Section 52A of the NDPS Act."
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7. He thus submits that even if there is an allegation
of non-compliance of any provision of the NDPS Act, merely
on technicality the Applicant must not be enlarged on bail. He
further submits that the Applicant was present at the spot and
he was very well conscious of the fact that there was an
exchange of the narcotic substance. He thus, states that the
Bail Application of the Applicant be rejected.
8. I have heard learned counsels for both the parties
and perused the record with their assistance.
9. Undoubtedly, as on date the settled law is that, if
other material on record adduced by the prosecution, inspires
confidence and satisfies the Court as regards the recovery as
well as the conscious possession of the contraband from the
accused persons, then even in such case the Court can without
hesitation, proceed to hold the accused guilty notwithstanding
any procedural defect.
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10. However, in the present case the co-accused are
enlarged on bail by this Court holding non-compliance of
Section 52A (2) (c) of the NDPS Act. The role attributed to
the co-accused who are enlarged on bail by this Court is of
higher degree than the role of the present Applicant inasmuch
as there was nothing recovered from the person of the
Applicant. On the contrary, 110 grams of Mephedrone (MD)
was recovered from the co-accused yet he was released.
Hence, considering the principle of parity, I am inclined to
grant bail to the Applicant.
11. In any case, admittedly while being incarcerated
for 2 years and 1 month, till date charges are not framed. The
Supreme Court in a series of its decisions, held that,
prolonged incarceration generally militates against the most
precious fundamental right guaranteed under Article 21 of the
Constitution of India and in such a situation the conditional
liberty must override the statutory embargo to created under
Section 37(1)(d)(ii) of the NDPS Act.
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12. In view of the aforesaid discussions, I am of the
view that this is a fit case for grant of bail. Hence, the
following order is passed:-
ORDER
A) The Applicant shall be released on bail in
connection with FIR No.714 of 2023 registered on
the same date at Mumbra Police Station, District
Thane for offence under Sections 8(c) and 22(c) read
with 29 of the Narcotic Drugs and Psychotropic
Substance Act, 1985, on furnishing P.R. Bond of
Rs.50,000/ with one or two local sureties in the like
amount to the satisfaction of the Trial Court;
B) The Applicant shall report to the Mumbra
Police Station, District: Thane, on first Monday of
every month between 10:00 a.m. and 12:00 noon,
during the pendency of the trial;
C) The Applicant shall not tamper with the
evidence in any manner. He shall not influence the
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informant, witnesses or any other persons concerned
with the case;
D) The Applicant shall attend the proceedings
before the Trial Court on every date, except when
exempted, for reasons to be recorded in writing.
13. Needless to say, violation of any of the aforesaid
conditions may lead to cancellation of the present order.
14. Application is allowed in the above terms and is
accordingly disposed of.
15. It is made clear that the observations made herein
are prima facie and are confined to this Application and the
learned Trial Judge to decide the case on its own merits,
uninfluenced by the observations made herein.
(DR. NEELA GOKHALE, J)
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