2809ba498.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (BA) NO. 498 OF 2011 (Ruksana w/o Ejajuddin Kazi Vs. The State of Maharashtra) WITH CRIMINAL APPLICATION (BA) NO. 505 OF 2011 (Faridabano wd/o Abdul Hakim Vs. The State of Maharashtra) ................................................................................................................................................................................................................. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions Court's or Judge's Order and Registrar's orders ................................................................................................................................................................................................................. S/Shri A. K. Bhangde & S. M. Bhangde, Advocates for the applicants. Shri N. R. Rode, A.P.P. for the State. CORAM : U. V. BAKRE, J. DATED : 28TH SEPT., 2011 Heard. 2. Both the applicants were arrested in Crime No. 3063/2011 registered at police station Badnera for offence punishable under Sections 20, 22, 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act). 3. On 3/8/2011, upon secret information received by Sanjay Dahake P.S.O. of Badnera police station, raiding party arranged Nakabandi near Gandhi Vidyalaya, Badnera and after some time accosted five persons, out of which three were male and two were ladies. On search of bags and luggage of the said persons, Sheikh Ayub Sheikh Karim was allegedly found in possession of 10 Kgs. of Ganja, Shakilkhan Ayubkhan was found with 10 Kgs. of Ganja, Sheikh Hanif Sheikh Amir was found with 3.00 kgs. of Ganja and Faridabanoo and Rukhsana (present applicants) were found in possession of respectively 10 Kgs. and 2.5 Kgs. of Ganja. 4. It is alleged by the prosecution that the total quantity found 2809ba498.11.odt 2/3 with all the five persons is 35.500 Kgs. which is more than commercial quantity. It is, therefore, the contention of the prosecution that Section 37 of the NDPS Act is applicable. It is further alleged that the investigation is in progress and that such activities are lethal to the society and it is in the interest of the society to keep such persons behind the bar. 5. It is seen that Section 29 of the NDPS Act has not been made applicable in the present crime, which is applicable if there is abetment and criminal conspiracy. 6. Learned Advocate for the applicants has relied upon the case of Sangeeta Y. Gaikwad Vs. State of Maharashtra reported in 2006 ALL MR (Cri) 2405, wherein the learned Single Judge of this Court has refused to accept the contention that if the quantity of all the accused persons is clubbed together then each of them must be said to have committed an offence relating to commercial quantity. The learned Judge has relied upon the ruling of the Hon’ble Apex Court in Amarsingh Ramjibhai Barot Vs. State of Gujrat – 2006 ALL MR (Cri) 229 (S.C.), wherein it has been held that where two accused persons were found together with heroin more than the commercial quantity but individually less than the commercial quantity, Section 29 is not attracted. Similar view has also been taken by the Kerala High Court in the case of Mutthu Kumar Vs. Station House Officer reported in 2008(4) Crimes 722 (Ker.), also relied upon by the learned Advocate for the applicant. 7. In the present case also both the applicants are individually found with Ganja respectively weighing 10 Kgs. and 2.500 Kgs., which is 2809ba498.11.odt 3/3 admittedly less than the prescribed commercial quantity. In the circumstances above, Section 37 of the NDPS Act is not applicable. 8. Though it is alleged that the investigation is in progress, since Ganja has been already attached and further since presently the applicants are in magisterial custody, no purpose will be served by keeping them in custody. Besides the above, the applicants are women. 9. Hence, both the applications are allowed, however, with conditions. 10. The applicants shall be released on bail in Crime No. 3063/2011 registered at police station Badnera for offence punishable under Sections 20, 22 and 27 of the NDPS Act upon execution of personal recognition bond in the sum of Rs.50,000/- (Rupees fifty thousand only) each with one solvent surety in the like amount under the following conditions, namely :- (i) The applicants shall attend Badnera police station twice a week, i.e. on Monday and Thursday from 12.00 noon to 2.00 p.m. until further orders; (ii) The applicants shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) The applicants shall not commit any offence while on bail. (iv) The applicants shall not leave India without previous permission of this Court. Both the applications are disposed of accordingly. JUDGE wwl