IMPORTANT POINT
Statement recorded under Section 67 of NDPS Act, 1985 cannot be used as a confessional statement in trial for offence under NDPS Act, 1985.

ORDER

The applicants who are arraigned in NCB/MZU/CR-18/2021 registered with Narcotics Control Bureau, Mumbai for the offences punishable under sections 20(b), 22(c), 27, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act, 1985) seek to be enlarged on bail.

2. On 27th February, 2021 an information was received that Amjad Shaikh (A/1), the applicant in Bail Application No. 215 of 2022, and Aijaz Supariwala (A/2) had in their possession narcotic drug/ psychotropic substance at Room No. 37, Arab Galli, Amtullah Apartment, C wing, Mumbai-8 and Room No. 27-B, Pathawadi, Piru Lane, Imam Wada, Mumbai-9 and were selling the same to their purchasers, in small quantity. After complying with the procedural requirements and obtaining authorization under section 41(2) of the NDPS Act, 1985, a team of NCB conducted raid at Room No. 37. The applicant Amjad Shaikh (A/1) was present in the said room. In the search of the said room, a black bag was found in an Alimirah. Upon opening, three small polythene pouches containing powder were found kept therein. The applicant Amjad Shaikh (A/1) claimed the said bag and stated that the substance contained in three polythene pouches was Mephedrone (MD). The substance was mixed and kept in one polythene bag. The net weight of contraband substance was 53.4 gms. Three more packets containing black substance were found in the said bag. The applicant Amjad Shaikh (A/1) disclosed that the said substance was Charas. It was tested with drug detection kit. The test turned out positive for Charas. It weighed 7 gms.

3. During the course of investigation, it transpired that the applicant Amjad Shaikh (accused No. 1) had procured the contraband substance, from Aijaz Supariwala (A/2) and Iqra Qureshi (A/3), the applicant in Bail Application No. 390 of 2024. The complicity of the applicants and the co-accused Aijaz Supariwala (A/2) was revealed during the course of investigation and from the statements recorded under section 67 of the NDPS Act, 1985. The learned Special Judge declined to exercise the discretion in favour of the applicants. Hence, this application.

4. I have heard Mr. Ayaz Khan, the learned counsel for the applicant in BA No. 215 of 2022, Mr. Rishabh Botadra, the learned counsel for the applicant in BA No. 390 of 2024 and Mr. Shreeram Shirsat, learned special PP, for the Union of India-NCB.

5. Mr. Khan, the learned counsel for the applicant Amjad Shaikh submitted that the applicant cannot be said to have been found in actual and conscious possession of the contraband substance. Evidently, one Sarfaraz Shaikh was the occupant of the said room. He had opened the door. Sarfaraz Shaikh has not been arraigned as an accused. Thus, the applicant cannot be fastened with exclusive possession of the contraband substance. Secondly, the search and seizure stood vitiated as on the own showing of the prosecution the substance found in three pouches was mixed together and thereafter samples were collected. There is no material to indicate that the investigating officer had found that the contraband substance in each of the pouches was identical. Therefore, the sample which came to be drawn out of the said mixture cannot be said to be a representative sample. Thirdly, there was an inordinate delay in conducting the proceedings under section 52A of the NDPS Act, 1985. Lastly, it was submitted that the applicant has been in custody since 27th February, 2021. More than three years period has elapsed and it is extremely unlikely that the trial can be concluded within a reasonable period. Thus, on the count of long incarceration as well the applicant deserves to be enlarged on bail.

6. Mr. Rishabh Botadra, the learned counsel for the applicant Iqra Qureshi (A/3), submitted that no contraband was recovered from the possession of Iqra. In fact the applicant Iqra Qureshi (A/3) was in custody of NCB in C.R. No. 32 of 2021 when she came to be arraigned in this case. There is not a shred of