IMPORTANT POINT
Bail can be granted in cases where applicant is not found in possession of any contraband article and there is no criminal antecedent as well as no apprehension that applicant is likely to commit any offence while on bail.

ORDER (ORAL)

Umesh A. Trivedi, J.—The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the applicant for regular bail post submission of charge-sheet in connection with an FIR being C.R. No. 11191012211362 of 2021 registered with Danilimda Police Station, District : Ahmedabad for the offences under Sections 8(C), 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, ‘the Act’).

2. Mr. Rahul Dholakia, learned advocate for the applicant submitted that going through the entire papers of charge-sheet except the call data records showing that in an around the time of offence, applicant was in contact with co-accused. Over and above that, prosecution relies on Whatsapp chat in between the present applicant and the accused. He has further submitted that, as claimed by the prosecution, material Whatsapp chats are deleted from the devices and therefore, it has been sent for FSL for the purpose of retrieving. He has further submitted that though quantity seized from two of the accused found in possession of Methamphetamine about 62 gram, which is commercial quantity, nothing is recovered or found in possession of applicant either at the time of arrest or subsequent thereto while searching even his premises. He has further submitted that based on statement of co-accused the arrest of the applicant is effected. The other connecting material sought to be relied on by the prosecution, according to submission of Mr. Dholakia, learned advocate for the applicant, is insufficient to bring home charge against the applicant. At any rate, according to him, the applicant cannot be said to have conspired together along with other co-accused based on material collected during the course of investigation to be a part of conspiracy as under Section 29 of ‘the Act’. He has further submitted that similarly situated co-accused of this very offence came to be released on regular bail vide an order passed in Criminal Misc. Application No.1764 of 2022 dated 23.2.2022 in the case of co-accused, Rajin Abdulandim Saiyed, and therefore, even on the ground of parity, he submitted that applicant may also be released on bail.

3. Mr. Dholakia, learned advocate for the applicant relied on a decision in the case of Bharat Chaudhary V/s. Union of India reported in 2021 SCC OnLine SC 1235 in support of his submission that in absence of any possession of contraband article and the print outs of whatsapp messages downloaded from the mobile phone and devices seized from the mobile phone were not treated to be sufficient material to establish live link between the co-accused and the accused whose bail was under consideration before the Supreme Court as Scientific reports in respect of the said devices was still awaited.

4. Ms. Maithali Mehta, learned APP submitted that in an around the time of the incident, the applicant was in live contact with the arrested accused and from whom contraband is found. She has further submitted that, according to the case of the prosecution, the applicant had ordered for the same and before it could be delivered to him, the two accused have been arrested in possession of contraband in a commercial quantity. She has further submitted that though screenshot of one Whatsapp chat available on devices / mobile phone of the applicant is not in clear terms indict the applicant, since Whatsapp chat came to be deleted by the applicant, it has been sent to FSL for retrieving it. However, no such report based on examination by FSL is yet available. Ms. Mehta, learned APP further submitted that in view of Section 35 of ‘the Act’, there is a presumption of culpable mental state of the accused. Considering the material available with the prosecution, it is urged that, the presumption of culpable mental state of the accused may be inferred from the Whatsapp chat between the accused as also the call data records. Therefore, she has submitted that the applicant be denied bail.

5. Havin