Sultan Habib Lodhda vs State Of Gujarat

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Guj) 289

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
DIVYESH A. JOSHI, J.
Sultan Habib Lodhda - Appellant
Versus
State Of Gujarat – Respondent
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL – AFTER CHARGESHEET) NO. 20310 of 2023
Decided on : 01-03-2024

Advocates:
Advocate Appeared:
For the Appellant : MR NASIR SAIYED, MRS MUMTAZ SAIYED
For the Respondent: MR. RONAK RAVAL

Headnote:
NDPS Act - Bail Application - Section 439 - Sections 8(c), 21(c), 23(c), 25 and 29 of the NDPS Act - Summary of Acts and Sections: The court discussed the provisions and objective of the NDPS Act, particularly Section 37, which makes offences under the Act cognizable and non-bailable. The court emphasized the stringent parameters for the grant of bail under the NDPS Act and the legislative intent to prevent drug trafficking and its devastating impact on society. The court also highlighted the interpretation of 'reasonable grounds' for granting bail under Section 37, emphasizing the need for substantial probable causes to believe that the accused is not guilty and will not commit a similar offence while on bail.
Fact of the Case:
The case involved a bail application under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with a FIR registered under Sections 8(c), 21(c), 23(c), 25 and 29 of the NDPS Act. The accused was implicated in a drug trafficking case involving a huge cache of heroin being brought into India from Pakistan via sea route.
Finding of the Court:
The court found that the accused's role in the drug trafficking operation was established from the material available on record. The court emphasized the seriousness of the offence and the accused's involvement as the mastermind behind the entire conspiracy. The court also cited the interconnectedness of the present case with a previous incident, indicating organized criminal networks engaged in illegal drug trafficking.
Issues: The primary issue was whether discretion should be exercised in favor of the applicant-accused indicted for the offence under the NDPS Act, particularly considering the stringent parameters for granting bail under Section 37 of the Act.
Ratio Decidendi: The court's decision was based on the interpretation of Section 37 of the NDPS Act, emphasizing the need for substantial probable causes to believe that the accused is not guilty and will not commit a similar offence while on bail. The court also considered the legislative intent to prevent drug trafficking and its devastating impact on society.
Final Decision: The court rejected the bail application, citing the accused's established role in the drug trafficking operation, the seriousness of the offence, and the interconnectedness of the present case with a previous incident involving organized criminal networks engaged in illegal drug trafficking.

JUDGMENT :

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.III-02 of 2022 registered with the Anti-Terrorist Squad Police Station, Ahmedabad of the offence punishable under Sections 8(c), 21(c), 23(c), 25 and 29 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”).

BRIEF BACKGROUND

2. The complaint was filed on 26.04.2022 through J.M. Patel, Police Inspector, Anti-Terrorist Squad, Ahmedabad stating that on 23.04.2022 Shri Bhavesh P. Rojiya, Deputy Superintendent of Police, received a secret information at 20:00 hours that one Mustufa Aiyub Miyana of Karachi Pakistan has supplied a huge cache of narcotic substance heroin in a rowboat called ‘Al-Haj’ to be delivered to one person named Kali on 24.04.2022 between 22:00 and 24:00 hours in the night at Channel No.88 of VHF Radio which comes within the coastal territory of Jakhau Port, India, which narcotic substance would then be delivered to one Avtarsingh and Raj hailing from Okhla Vihar, South Delhi. The information was reduced into writing and forwarded to Shri Sunil Joshi, Superintendent of Police, A.T.S., Gujarat.

2.1 Acting upon such tip-off, a combined team of A.T.S. officers and the coastguard police of Jakhau Port was formed.

2.2 Then, the members of the raiding party, after following due procedure of raid, decided to conduct a joint operation and reached at the pointed place in the mid-sea in a rowboat and kept a watch of the hinted boat coming from Pakistan by shutting down the lights of the boat. While in surveillance, on 25.04.2022 at around 00:15 hours, upon hearing some conversation in Hindi language on Channel No.88, the navigation light of the boat got on and when seen towards the radar area, one boat carrying a Pakistani flag boarded with about eight to ten persons was found near to the boat of the coastguard in a suspicious condition. Therefore, it was announced on a loudspeaker to the onboard persons in the Pakistani boat not to move, however, they did not pay any heed to such an announcement and sailed the boat towards the coastal territory of Pakistan in an excessive speed. They were chased by the members of the A.T.S and though several rounds were fired, they did not stop. However, due to an excessive speed, the engine of the Pakistani boat got ablaze and, therefore, all the onboard persons in the Pakistani boat stopped the boat, raised their hands and surrendered to the police.

2.3 Thereafter, some members of the raiding party went to the Pakistani boat where total nine Pakistani nationals named in the FIR were found in the boat. A search was conducted in the presence of a gazetted officer in view of the provisions of Section 50 of the NDPS Act but nothing objectionable was recovered in the course of the personal search. However, upon searching the boat, total 56 small packets in three polythene bags were found. Thereafter, when the accused persons were asked about the narcotic substance found from the packets in Hindi language, they admitted it to be heroin. Then, samples were taken and upon testing with the drug detection kit, the samples tested positive for heroin. Hence, the present FIR.

2.4 The application for bail moved by the applicant-accused was rejected by the 6th Additional Sessions Judge & Special Judge (NDPS), Bhuj-Kachchh on 21.07.2023, observing that a huge commercial quantity of heroin was recovered and that having regard to the seriousness and gravity of the crime, no case for the grant of bail was established. The applicant is, thus, before this Court.

Submissions on behalf of the applicant-accused:-

3. Learned advocate Mr. Nasir Saiyed representing the applicant-accused has submitted that the applicant-accused was arrested on 13.10.2022 and since then he is in jail. Learned advocate Mr. Saiyed has also submitted that in the present case, investigation has already been completed and charge-sheet