RAKESH M SHARMA Vs. M D KALE

JUDGEMENT

(1.) The Applicant/Accused is facing charges for having committed offences u/s 8(c) 21, 29 of NDPS Act 1985 before the Court of Special Judge in NDPS Special Case No.349 of 1996. The Applicant/Accused is in judicial custody and seeks bail by this application. The Applicant/Accused came to be arrested on 8.7.1996 along with one Bhavani Ram at the Reception Counter of Hotel Tunga International, M.I.D.C Central Road, Andheri, by the Officers of the Narcotic Control Bureau on the basis of a specific information. On search being carried out on the Accused, he was found to be carrying green coloured polythene bag containing 100 grams of heroin. According to the Complainant, the Accused has come to Bombay along with one Mr. Bhavani Ram on being sent by one Mr.Bhure who deals in heroin at Bhesoda Mandi and has his family business at Heena General Stores and that he was given 100 grams of heroin to be supplied to a person in Mumbai who was to meet him at the reception of Hotel Tunga International and that the Accused was to collect Rs.12,000/- for the same out of which he was to pay Rs.10,000/- to Mr.Bhure and the balance Rs.2,000/- was to be shared by the Accused and Bhavani Ram. But before the Accused could deliver the 100 grams of heroin, he came to be intercepted by the Officers of Narcotic Control Bureau and arrested. The accused preferred an application for bail before the learned Special Judge, which came to be rejected on 24.10.1996.

(2.) Mr.Ghare, learned Counsel appearing for the Accused contended that the Applicant/Accused is a young boy born on 25.12.1981, though his School Certificate shows his date of birth as 4.7.1979 and on the date of the alleged offence i.e. on 8.7.1996, the Accused was below the age of 18 years and so the Accused is entitled for bail as his case would be governed by Section 33 of the N.D.P.S Act. Mr.Ghare submitted that the decision rendered by this Court in the case of Devendra Chaganlal Pandya v/s. State of Maharashtra, 1993 1 MhLJ 652 , by Dudhat, J. requires reconsideration. Mr.Ghare submitted that in the said judgment, it was observed by the Court as under:

(3.) Mr.Agarwal, learned Special P.P. submits that in the case of Devendra Pandya , this Court has already considered the various aspects of the matter and has come to a finding that the benefit of section 33 of the N.D.P.S Act need not be given to an accused who is under the age of 18 at interim stage, i.e. at the time of grant or refusal of bail. He further submitted that in the present case, there is sufficient material collected by way of evidence to show that the Applicant/Accused has indulged in drug trafficking with full knowledge of the consequences and the case of the Applicant/Accused does not fall within section 33 and section 37(2) of the N.D.P.S. Act and he cannot be granted bail.