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Bombay High Court

SHAHABAZ SHAMIM KHANversusSTATE OF MAHARASHTRA

Decided
Disposal
Allowed

Holding

The court held that bail should be granted to the applicants, finding that the procedural deficiencies and prolonged detention satisfied the conditions for bail under Section 37 of the NDPS Act.

Summary

The applicants, Shahabaz Shamim Khan and Abubakr Mehandi Hasan Khan, were arrested after police found two bags containing approximately 51.5 kg of ganja in a Maruti WagonR parked at Wadala Depot. The prosecution alleged possession of a commercial quantity under Sections 8(c), 20(b)(ii)(C) and 29 of the NDPS Act, while the defence highlighted procedural deficiencies, including lack of prior secret information processing, absence of mobile phone call data records, delayed recording of the car owner's statement, and non‑compliance with Rule 10 of the NDPS‑SSSD Rules for sampling. The court examined whether the conditions of Section 37 for bail were satisfied, noting the irregularities in evidence collection and the prolonged pre‑trial detention of over a year. Relying on the Supreme Court’s decision in Bablu Singh v. State of Madhya Pradesh, the judge found that the procedural lapses and the lack of a conclusive forensic report justified granting bail. Consequently, the court ordered the release of both applicants on bail with specified conditions.

Issues considered

  • Whether the applicants are entitled to bail under Section 37 of the NDPS Act despite alleged possession of a commercial quantity of ganja.
  • Whether the seizure, sampling, and inventory procedures complied with the NDPS‑SSSD Rules, 2022.
  • Whether the delay in recording the car owner's statement and the absence of mobile CDRs affect the prima facie case.
  • Whether the prolonged pre‑trial detention without a conclusive forensic report warrants bail.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • commercial quantity
  • procedural lapse
  • sampling rules
  • pre‑trial detention
  • Section 37

Judgment

P.H. JAYANI                                        907 BA1200 WITH 1209.DOC


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

               BAIL APPLICATION NO. 1200 OF 2026

Shahabaz Shamim Khan                                  ….Applicant
      V/s.
The State of Maharashtra                              .…Respondent


                             WITH
                BAIL APPLICATION NO. 1209 OF 2026

Abubakr Mehandi Hasan Khan                            ….Applicant
      V/s.
The State of Maharashtra                              .…Respondent



Ms. Shaikh Afreen a/w. Ms. Nikhat Shaikh for the applicant.
Ms. Veera Shinde, APP for the Respondent - State.


                           CORAM:        SHYAM C. CHANDAK, J.
                           DATED :       3rd SEPTEMBER, 2026

1.       Heard learned Counsel for the parties. Perused the record.

2.       The applicants seek their release on bail in NDPS Special
Case No.2656/2025 pending on the file of learned NDPS Special
Judge, City Civil & Sessions Court, Gr. Bombay arising out of
Cr.No.559/2025 registered with Wadala T.T. Police Station,
Mumbai for the offence punishable under Sections 8 (c), 20 (b)(ii)
(C) and 29 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (‘NDPS Act’) on the Report dated 22.08.2025 filed by
Mr. Gopichand Nerkar, API.

3.       Briefly stated, the prosecution case is that on 22.08.2025 at
about 14:40 hours, the informant was patrolling on his private
bike within his jurisdictional area. When he arrived at Wadala

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P.H. JAYANI                                     907 BA1200 WITH 1209.DOC



Depot Monorail Station, a white colour Maruti Wagonr Car
bearing registration No.MH-01-EE-3013 was standing there and
the applicants were seated in the car. On inquiry, the applicants
gave evasive replies. Therefore, the informant called Mr.
Madhavendra Yewale, PSI at the spot. Thereafter Mr. Yewale
arrived there and inquired with the applicants. During search of
the car, Mr. Yewale found two bags on the rear seat. Each
containing 25 packets of Ganja. Therefore, PHC was called along
with other police, two panchas and sealing material i.e., weighing
machine etc. Thereafter, the Ganja found in two bags was
separately weighed. One bag was containing total 25.760 kgs of
Ganja and another was found containing total 25.740 kgs. Then,
the said Ganja was seized and a detailed panchanama was
recorded. It was followed by lodging of the Report by the
informant, leading to registration of the aforesaid crime and arrest
of the applicants. Police submitted the charge-sheet. The trial
Court declined to release the applicants on bail. Hence, these
applications.

4.       Ms. Shaikh, learned Counsel for the applicant submitted
that as per the record, the police had received a prior secret
information about the Ganja. However, said information was not
processed as required under Section 42 of the NDPS Act. No
mobile phones of the applicants were seized to show that they had
travelled from a particular place carrying Ganja up-to the spot,
where they were apprehended. Even the statement of the owner of
the said car is not recorded to ascertain whether he had given the
car to the applicants. All this create doubt about the veracity of
prosecution case. Additionally, Ms. Shaikh submitted that the
samples of the Ganja were not drawn as required in law. The



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P.H. JAYANI                                        907 BA1200 WITH 1209.DOC



Report of the C.A. is yet not filed in the case. Therefore, the
applicants are entitled for bail.

5.       In reply, Ms. Shinde, the learned APP submitted that the
applicants were found in possession of commercial quantity of
Ganja, which they failed to explain. Therefore, there is a prima
facie case against the applicants of having committed the present
crime and in view of the rigours of Section 37 of NDPS Act, they
are not entitled for bail.

6.       I have considered these submissions. Although the
informant claims that the car was found standing at the spot and
the applicants were present in the car, there is no investigation as
to from where the car had travelled up-to the spot. No
investigation was made with the owner of the car till 06.08.2026
to ascertain whether he had given his car to the applicants or not.
In fact, when this Court asked the reason for not recording the
statement of the owner of the car, the Investigating Officer Ms.
Anuradha Bhosale, PI recorded the statement of the owner on
06.08.2026. Although mobile phone numbers of the applicants
were mentioned in the arrest form, the CDRs of their mobile
phone numbers were not obtained to ascertain as to from where
they had collected the Ganja and, from where they were travelling.

7.       Rule 10 of the      the (Seizure, Storage, Sampling and
Disposal) Rules, 2022 (“NDPS-SSSD Rules”) provides for the
procedure for drawing samples. Said Rule 10 read as under :

         “10. Drawing the samples.– (1) One sample, in duplicate,
         shall be drawn from each package and container seized.

         (2) When the packages and containers seized together are
         of identical size and weight bearing identical marking and
         the contents of each package give identical results on colour
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P.H. JAYANI                                        907 BA1200 WITH 1209.DOC


         test by the drugs identification kit, conclusively indicating
         that the packages are identical in all respects, the packages
         and containers may carefully be bunched in lots of not more
         than ten packages or containers, and for each such lot of
         packages and containers, one sample, in duplicate, shall be
         drawn: Provided that in the case of ganja, poppy straw and
         hashish (charas) it may be bunched in lots of not more than
         fourty packages or containers.

         (3) In case of drawing sample from a particular lot, it
         shall be ensured that representative sample in equal
         quantity is taken from each package or container of that lot
         and mixed together to make a composite whole from which
         the samples are drawn for that lot.

8.       In the present case, there were total 50 similar packets each
containing about 1 Kg of Ganja. The Inventory procedure was
undertaken after 81 days, i.e., on 12.11.2025. The prosecution case
is that, from the 1st lot of 25 packets, one sample of 30 grams
Ganja was taken for the purpose of CA and another sample of 30
grams of Ganja was taken as a representative sample. The same
procedure was followed in respect of the 2nd lot. However, the
Inventory Certificate does not clearly indicate that equal quantity
of Ganja was taken from each package or container of each lot and,
mixed together to make a composite whole from which the
samples were drawn for that lot.

         Thus, it appears that, sub Rule (3) of Rule 10 of the NDPS-
SSSD Rules is not properly followed. If the delay in getting the
Inventory done is considered in conjunction with the non-
compliance of the guidelines in the matter of collection of samples,
which may vitiate the seizure, the first condition of Section 37 of
the NDPS Act can be said to have been met.




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P.H. JAYANI                                         907 BA1200 WITH 1209.DOC



9.        The investigation is completed and further detention of the
applicants in jail will not serve any purpose. The applicants are in
jail for more than one year. Ms. Shaikh made a statement that, till
the date, the Report of C.A. is not produced to show that the
contraband seized from possession of the applicants was Ganja. In
similar circumstances, bail is granted in the case of Bablu Singh v.
The State of Madhya Pradesh, Special Leave to Appeal (Crl.) No.
631/2024 by the Hon’ble Supreme Court. Therein, the accused
was charged for possession of 28 kg of Opium. He was in custody
for more than 3 years and five months. There was one criminal
antecedent of similar nature against the said accused.

10.      In the wake of above, the applicants may be released on bail.
Thus, I am inclined to allow the application. Hence, Order :-

         (i)    The applicants        – Shahabaz Shamim Khan and
         Abubakr Mehandi Hasan Khan be released on bail in NDPS
         Special Case No.2656/2025 pending on the file of learned
         NDPS Special Judge, City Civil & Sessions Court, Gr.
         Bombay arising out of Cr.No.559/2025 registered with
         Wadala T.T. Police Station, Mumbai, on their executing P.R.
         Bond in the sum of Rs.1,00,000/- each with one or more
         sureties in the like amount.

         (ii)   The applicants shall mark their attendance at Wadala
         T.T. Police Station, Mumbai twice i.e., on 1 st and 16th day of
         each calender month between 11:00 a.m. to 2:00 p.m. till
         conclusion of the trial.

         (iii) The applicants shall regularly attend the proceedings
         before the jurisdictional Court unless exempted by the said
         Court.

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                      P.H. JAYANI                                         907 BA1200 WITH 1209.DOC



                               (iv)   The applicants shall not reside in the Wadala area,
                               Mumbai till conclusion of the trial.

                               (v)    The applicants shall not indulge in identical activities
                               for which they have been arraigned in this case.

                               (vi)   The applicants shall not tamper with the prosecution
                               evidence and shall not directly or indirectly influence upon
                               the prosecution witnesses to prevent them from deposing
                               against him.

                               (vii) On being released from jail, the applicants shall
                               furnish their contact number and residential address to the
                               Investigating Officer and shall keep him updated, in case
                               there is any change.

                               (viii) It is clarified that any observation made in the present
                               order are for the purpose of deciding the present Bail
                               Application and should not influence the outcome of the
                               trial and also not be taken as an expression of opinion on
                               merits of the case.

                      11.      Bail Applications stand disposed of in aforesaid terms.


  PREETI
  HEERO                                                 (SHYAM C. CHANDAK, J.)
  JAYANI
Digitally signed by
PREETI HEERO
JAYANI
Date: 2026.09.09
13:11:45 +0530




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