Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Guj) 567

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Divyesh A. Joshi, J.
Khubedi @ Raja S/o Khurshid Sailani – Applicant
Versus
State of Gujarat – Respondent
R/Criminal Misc. Application (For Regular Bail - After Chargesheet) No. 5373 of 2024
Decided On : 18-04-2024

Advocates:
Advocate Appeared:
For the Applicant : Mr. Vatsal D. Ruparel
For the Respondent: Mr. Hardik Soni, Ld. Addl. Public Prosecutor

IMPORTANT POINT
The main legal principle established in the judgment is the stringent conditions for granting bail under Section 37 of the NDPS Act in drug trafficking cases, emphasizing the gravity of the offence, the accused's role in the drug trafficking operation, and the legislative intent to prevent the accused from repeating the offence while on bail.

Headnote:
NDPS Act - Regular Bail - Section 8(C), 22(C) and 29 - 37
Fact of the Case:
The applicant-accused sought regular bail under Section 439 of the Code of Criminal Procedure, 1973, in connection with an FIR registered under Sections 8(C), 22(C) and 29 of the NDPS Act. The accused was implicated in a case involving the possession of contraband Mephedrone, and the prosecution presented evidence linking the accused to the crime.
Finding of the Court:
The court analyzed the provisions of Section 37 of the NDPS Act, which makes offences under the Act cognizable and non-bailable. The court emphasized the gravity of drug trafficking offences and the stringent conditions for granting bail under the Act. It considered the accused's involvement in a larger drug trafficking operation, including the possession of a commercial quantity of contraband, and the accused's financial transactions and communications with co-accused individuals. The court concluded that the conditions stipulated under Section 37 were not satisfied and rejected the bail application.
Issues: The key issue was whether the accused should be granted bail under Section 37 of the NDPS Act, considering the gravity of the offence, the accused's role in the drug trafficking operation, and the legislative intent behind the Act.
Ratio Decidendi: The court's decision was influenced by the provisions of Section 37 of the NDPS Act, which impose stringent conditions for granting bail in drug trafficking cases. The court emphasized the legislative intent to curb drug trafficking and the need to prevent the accused from repeating the offence while on bail. It considered the accused's role in the larger drug trafficking operation and the gravity of the offence in denying the bail application.
Final Decision: The court rejected the bail application, stating that the conditions stipulated under Section 37 of the NDPS Act were not satisfied, and there were no "reasonable grounds" to presume the accused as not being guilty of the offence.

JUDGMENT :

1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.

2. 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.11210046221329 of 2022 registered with the Puna Police Station, Surat CIty of the offence punishable under Sections 8(C), 22(C) and 29 of the NDPS Act.

3. The factual matrix in the instant case, as submitted by the prosecution, is as under:

3.1 One Vilesh Jaswantbhai Gamit, an unarmed Police Constable, Buckle No.2188, serving at Puna Police Station, Surat City has filed the present complaint stating that he received a secret information from his very reliable sources that on 28.09.2022, between 10:30 and 12:00 O’clock in the night hours, one person, namely, Afzal @ Guru, a resident of Ajmer will bring the contraband Mephedrone to Surat all the way from Mumbai by passing through Niyol Check Post, who is having a beard and will be in a blue coloured white dotted round necked t-shirt and Navy blue coloured track pant carrying a black coloured traveling bag. Thereafter, the said information was reduced into writing and forwarded to the Police Inspector Shri V.M. Koladra.

3.2 Thereafter, as the raid had to be carried out, Panchas were also called for. Then, after following necessary legal procedure of carrying out a raid, all the members of the raiding party reached at Niyol Check post and took their individual positions for keeping a watch.

3.3 Thereafter, as per the information, one person having a beard and carrying a traveling bag on his back side was found to be coming walking on a service road from the Kadodara Cross Road wearing a blue coloured white dotted round necked t-shirt and navy blue coloured track pant. Therefore, all the members of the raiding party came out and cordoned the said person at around 23:10. Thereafter, upon asking about his identity, the said person identified himself as Afzal @ Guru S/o. Subrat Ali Saiyed, a resident of Ajmer.

3.4 Thereafter, the said person got acquainted with such secret information by the police and after following due procedure in accordance with law, a personal search of the said person was carried out, however, nothing objectionable was found from his personal search. Thereafter, upon the black coloured traveling bag being searched by the police, from the middle pocket of the bag, some cloths were found and below the cloths, one light green coloured fabric bag was found and from the said light green coloured fabric bag, one black coloured plastic bag was also found containing some white coloured powder. Thereafter, when the person caught by the police was being asked about the said powder, he admitted it to be the contraband Mephedrone. Thereafter, samples were taken and upon testing with the drug detection kit, the samples tested positive for Mephedrone. The total quantity of contraband Mephedrone recovered was 1.670 k.g. Hence, the present FIR.

4. Learned advocate Mr. V.D. Ruparel appearing for the applicant has submitted that the applicant-accused is an innocent young man, aged about 27 years languishing in the judicial custody since 17.04.2023. It is further submitted that the investigation has already been completed and charge- sheet has also been filed. Learned advocate Mr. Ruparel has also submitted that the first information report came to be lodged against one Afzal @ Guru as well as wanted accused Ballu and an unknown person. It is further submitted that the applicant-accused has not been named in the FIR and after a period of almost seven months, on the basis of the statement of the co-accused, the present applicant-accused has been implicated in the present case. Learned advocate Mr. Ruparel has further submitted that there is no recovery or discovery of any incriminating material at the instance of the applicant- accused. Even he was not found at the place of occurrence and was not caught red-hand