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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Divyesh A. Joshi, J.
Fatema Moiz Sayarawala - Appellant
Vs.
State Of Gujarat & Anr. - Respondent
Criminal Misc. Application (For Regular Bail - After Chargesheet) No. 18194 of 2023
Decided On : 28-02-2024
Narcotic Drugs & Psychotropic Substances Act - Regular Bail - Sections 21(c), 23(c), 25, 27, 27A, 27B, 28, 29,30, 31, 31A , 32, 32B(c), 32B(e) read with Section 8(c), 8A of the Narcotic Drugs & Psychotropic Substances Act, 1985 and Rule 53, 54 and 55 of the Narcotic Drugs & Psychotropic Substances Rules, 1985 and Section 120B of the Indian Penal Code
Fact of the Case:
The case involved the arrest of an individual in connection with the recovery of a commercial quantity of contraband substance heroin from an import consignment at Mundra port. The accused sought regular bail, claiming innocence and lack of knowledge about the illegal substance.
Finding of the Court:
The court found that the accused had actively participated in the conspiracy to illegally import the contraband substance, based on evidence including WhatsApp chats and the nature of the import. The court also noted the commercial quantity of the substance and its impact on society, leading to the dismissal of the bail application.
Issues: The main issue was whether the accused should be granted bail despite the recovery of a commercial quantity of contraband substance and the evidence indicating her active participation in the conspiracy.
Ratio Decidendi: The court applied the provisions of Section 37 of the NDPS Act, which require reasonable grounds to believe that the accused is not guilty of the alleged offence. The court emphasized the gravity of the offence, the impact of the illicit drug trade, and the concept of conscious possession in determining bail eligibility.
Final Decision: The court dismissed the bail application, ruling that no ground for bail was made out against the accused based on the facts, circumstances, and evidence presented.
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 registered at D.R.I. Gandhidham File No.DRI/AZU/GRU/NDPS-3/2022 of the offence punishable under Sections 21(c), 23(c), 25, 27, 27A, 27B, 28, 29,30, 31, 31A , 32, 32B(c), 32B(e) read with Section 8(c), 8A of the Narcotic Drugs & Psychotropic Substances Act, 1985 and Rule 53, 54 and 55 of the Narcotic Drugs & Psychotropic Substances Rules, 1985 and Section 120B of the Indian Penal Code.
FACTUAL MATRIX
3. The complaint was filed by the Senior Intelligence Officer of the Directorate of Revenue Intelligence (henceforth “DRI”), Gandhidham Regional Unit, Plot No.193, Sector-4, Gandhidham stating that following the inputs received by the DRI regarding one import consignment under IGM No.2311391 dated 12.05.2021, suspected to have some restricted or prohibited goods, the container was put on hold by the DRI at Mundra port vide communication dated 21.05.2022.
4. Then between 24.05.2022 and 26.05.2022, the officials of the DRI raided at the place of Mundra port where the consignment was lying. The raiding team comprised of Shri Vikram Meena (Seizing Officer), two independent Panchas, representative of CFS & Shipping line, namely, Shri Shashidharan Nair (Manager (Operations), M/s Speedy Multimodes Warehousing Corporation (CWC) CFS, Adani Ports & SEZ, Mundra and Shri Bharat Himmatlal Parmar, Branch Manager, M/s. Sea Care Shipping P. Ltd., Gandhidham.
5. The Intelligence Officer then introduced himself to the person present over there and acquainted them about the illegal contraband substance lying in the consignment and informed them about the search to be carried out in presence of two independent Panch witnesses.
6. After that, the goods destuffed from the container and sent the same in the godown for detailed examination. However, before shifting the bags to the godown, each bag was being weighed by the officer which was found to be exactly of the same weight as was written/disclosed on the bag. During such process, just to know the colour, texture and odour/smell of the goods filled in the bag, each of the bags were incised from the middle.
7. During the course of weighment, one bag was found to be of lesser weight, i.e., 17.980 kg against the weight mentioned on the bag, i.e, 25 kg. Which created suspicion in the mind of the officers, and as such, they decided to separate the said bag from other bags. After that, four more bags were found to be lesser in quantity against the weight mentioned on the respective bags and, therefore, they were kept separate in the godown. Thus, total five bags were found under suspicion.
8. Then the said five bags were brought for examination. The bag weighing 17.980 kg was first incised from the middle portion which was found to have coarser powder of brownish colour and was also found to be having pungent smell different than the cargo of rest of the bags under examination. Upon such process being followed on each of the five bags, total three bags were found to be having the same coarser powder.
As the officers present found those three bags to be of suspicious nature, they decided to ascertain the identification of the said goods by using the Drug Detection Kit, and after preliminary testing, the samples were tested positive for psychotropic substance heroin which was also confirmed by the FSL. The said narcotic substance weighing 54.488 kg was then seized by the intelligence officer and complaint came to be registered, pursuant to which, later the applicant-accused was arrested.
Earlier proceedings:-
9. The applicant-accused approached the Sessions Court by filing an application under Section 439 of the Cr.P.C. for regular bail being Criminal Misc. Application No.1542 of 2022 which was nixed by the 3rd Additional Sessions Judge & (Special NDPS Court
The judgment established that the gravity of the offence, the impact of the illicit drug trade, and the concept of conscious possession are crucial factors in determining bail eligibility under the N....
The judgment establishes the stringent parameters for granting bail under the NDPS Act, emphasizing the need to satisfy reasonable grounds for believing in the innocence of the accused and ensuring t....
The main legal point established in the judgment is the stringent parameters for granting bail under the NDPS Act, emphasizing the legislative intent to prevent drug trafficking and the societal impa....
The judgment establishes the importance of substantial probable causes and conscious possession in determining guilt under the NDPS Act.
In narcotic offences, bail is only granted when it is proven that the accused is not involved with the contraband, with a stringent evaluation of public safety interests.
The court upheld the presumption of conscious possession under the NDPS Act, emphasizing the burden on the accused to prove otherwise, and denied bail due to the commercial quantity of narcotics invo....
The court ruled that bail under the NDPS Act requires clear evidence of innocence and no likelihood of reoffending, emphasizing the serious nature of drug trafficking.
The main legal point established in the judgment is the stringent parameters for granting bail under the NDPS Act, emphasizing the gravity of drug trafficking offences and the legislative intent to p....
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