MOHAMED IQBAL USMAN GANI Vs. NARCOTICS CELL CUSTOMS

JUDGEMENT

(1.) THIS is an application for bail. Prayer for bail in appeal was rejected earlier by this Court. However, the applicant has moved again in view of the judgment of the Apex Court reported in 2001 (5) Bombay Cases Reporter Page 264 = 2000 Cr.L.J, page 4619 (Dadu @ Tulsidas etc. Vs. State of Maharashtra) wherein vires of section 32-A of the NDPS Act, 1985 was challenged. The Supreme Court has held that the executive transgressed reasonable limits while completely taking away the powers of the Appellate Court (High Court) in suspending sentence. Section 32-A imposed a blanket ban on such powers and to that extent it was found ultra vires. The Apex Court pointed out in para 24 as under:

(2.) IN order to appreciate the applicant's case a brief statement of facts is necessary. On 19.6.1998 a specific information was received at 3.00 p.m. that appellant Mohammed Iqbal Usman Gani dealing in narcotic drugs, has stored 1 kg. of narcotic drugs in room No.1-A, Tinwala Building, Yakoob Galli, Mumbai. This information was received by Neeraj Rai, P.W.1, an officer of the Narcotic Cell of the Customs and was forwarded to the Superior Officer, Superintendent Mr.Sanchis. P.W.7. Thereafter P.W.1 visited the premises. He called two panchas on reaching the building and found 350 grams of hashish from the said room. On 19.8.1998 first confessional statement of the applicant was recorded and on the next day second confessional statement was recorded. Thereafter on the basis of information disclosed by the accused, search of the premises of his supplier, viz. a woman by name Zarina Begum Gulam Mohd. Bhatt, was taken and from that room cash of Rs.28,400/- was seized. The name of the woman found there was Zarina Khan Afrozbee, and she was identified by the applicant not as Zarina Begum Mohd. Bhat. He stated that the women present there was his niece. Incidently her name is also Zarina. Thereafter no attempt appears to have been made to find out the woman who was the alleged supplier and the cash was seized from Zarina Khan Afrozbee, niece of the applicant. That cash has been forfeited at the end of the trial.

(3.) IN this Court Mr.Tulpule, learned Counsel appearing for the applicant strenuously contended that in view of the aforesaid judgment of the Apex Court, it is now the duty of this Court to consider the prayer for bail. This proposition was not disputed by the learned Counsel for the prosecution. He however laid stress on the provisions of section 37 of the NDPS Act. As the legal position is not in dispute, it is not necessary to have further discussion on that aspect of the matter.