Actor Ajaz Khan Prima Facie Connected To Subsequent Recoveries: Bombay HC Refuses Bail Despite Possession of Small Quantity Contraband

Justice Bharti Dangre in the order observed, "It can thus be seen that though there is recovery of small quantity of contraband from the applicant, he is connected to recovery of commercial quantity from the co-accused and, therefore, the case sought to be projected by the learned counsel Mr. Maneshinde, cannot be accepted."

Khan is facing charges of financing for illicit trade in drug after 31 tablets (approximately 4.5 grams) of Alprazolam, were allegedly seized from his house in a raid. Khan was charged with sections 8(c), 22(a), 25, 27, 27A, 28, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The bail application was filed on the ground that there is no material to support allegation of financing for illicit drug trade. Further, since the investigation is complete and the charge-sheet is filed, further incarceration is unnecessary.

Advocate Satish Maneshinde for Khan submitted that he has been roped in the case in a mala fide manner. Even accepting prosecution's case, the quantity of drugs recovered is 'small quantity' under section 22(a) of the, and Khan can at most be imprisoned for 1 year or can be levied fine or both. He submitted that the witness statements are extremely vague and contain bald allegations without any corroboration. Further, there are contradictions in the prosecution story regarding arrest time.

Advocate Shreeram Shirsat for the Union of India submitted that the prosecution's case is not only that Khan possessed small quantity of Alprazolam. He was also involved in the chain of procurement, distribution, and transport of the commercial quantity of drugs seized from his co-accused. Khan may tamper evidence and influence witnesses and once again get involved in drug trafficking if released on bail.

The court perused the complaint file before the Special NDPS Judge by NCB. Court noted that on the basis of specific information, NCB raided the house of Khan's co-accused Shahrukh and recovered 1.973 kg of Mephedrone as well as Indian and foreign currencies. Information received from him led to another accused from whom 61 grams of Mephedrone and 160 grams Ephedrine was recovered.

The court recorded that NCB team raided Khan's house and recovered Alprazolam tablets on information from co-accused. Khan in his statement under section 67 of the Act disclosed that he demanded 5 grams of Mephedrone from accused no. 2. Khan led to another accused Gaurav Dixit from whom 8 grams of Mephedrone, 20 grams of Charas and 9 tablets weighing 0.6 gram of Ecstasy were seized.

Court noted that Khan is not only accused of possession of Alprazolam but his voluntary statement reveals connections with the co-accused. Co-accused Dixit revealed in his statement that Khan was keeping the substance found in his place by threatening him and his girlfriend.

Court noted that Khan has submitted prescription from Dr. Chirag Shah in the name of his wife but Dr. Shah denied having treated his wife or writing a prescription for her.

Court took note of another witness statement which revealed that Khan paid Rs. 5000 to him to procure Charas. Khan also pressurized him for bringing Hash. "…he was exploiting young boys and girls, by supplying them drug", the witness said in his statement.

The court observed that though the recovery is of small quantity of contraband, Khan is connected to recovery of commercial quantity from the co-accused.

The Court further noted that in the past also Khan had been released on bail in an NDPS case but he continued to indulge in similar activities leading to the present case.

Court held that Khan's involvement in the alleged conspiracy with the co-accused in illicit drug trafficking is established prima facie from the charge sheet.

It is not necessary to meticulously weigh the evidence and conclude whether Khan committed the offence or not; it is sufficient that there is a reasonable ground for not believing that he is not guilty of the charges levelled against him, the court said.

The court said that the length of period of custody or the fact that the charge sheet has been filed but the trial has not started itself cannot be a ground for releasing Khan on bail as he has failed to cross the rigors of section 37 of the NDPS Act.

Case no. – Bail Application No. 423 of 2022

Case title – Ajaz Mohammad Shaf Khan v. Union of India & Anr.

Citation: 2022 LiveLaw (Bom) 356