Anticipatory bail cannot be granted to absconders under Section 438 of the Code of Criminal Procedure.

ORDER

1. This is an application by the applicant under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of his arrest in connection with FIR registered at III-C.R. No.07 of 2009 before A.T.S. Police Station, Ahmedabad for the offence under Sections 8(c), 20(b)(c), 29 and 31A(1) of the Narcotic Drugs and Psychotropic Substances (for short “the N.D.P.S.”) Act.

2. Learned counsel appearing for the applicant submitted that the applicant is innocent and is not connected even remotely in any manner whatsoever with the alleged commission of offence. He submitted that one Javed Ahmad Dar was shown as absconding / wanted and moreover, in the supplementary charge-sheet also one Javed Ahmad Dar is shown as wanted and the present applicant – suspect accused is not Javed Ahmad Dar. He submitted that the police is out to arrest the present applicant after a period of 13 years with some ulterior motive. He further submitted that there is no question of avoiding warrant under Section 70 of the Code of Criminal Procedure, 1973 . He submitted that the present applicant has no connection at all even remotely with the contraband alleged to be seized from the alleged possession of the previously tried accused Nos.1, 2 and 3, and prayed that the applicant may be enlarged on anticipatory bail by imposing suitable conditions.

3. On the other hand, Ms.C.M. Shah, the learned Additional Public Prosecutor appearing for the respondent- State has strongly opposed this application and granting anticipatory bail to the applicant looking to the nature and gravity of the offence.

4. I have heard the learned Advocates appearing for the respective parties and perused the investigation papers and have also taken into consideration the facts of the case, nature of allegations, role attributed to the applicant–accused. I have also perused the police papers, wherein the role attributed to the present applicant is clearly mentioned. Considering the fact that the applicant is facing serious charges under the N.D.P.S. Act and there are allegations that huge quantity of contraband substance is brought into the State of Gujarat from Jammu & Kashmir and that the present applicant who is shown as absconding since long and the process under Section 70 of the Code of Criminal Procedure is initiated against him and the order is passed against the present applicant.

Considering the recent decision of the Apex Court in case of Prem Shankar Prasad Vs. State of Bihar in Criminal Appeal No.1209 of 2021 decided on 21^st October, 2021, wherein, the Apex Court has observed that the person who is absconding as an absconder and the process under Section 70 and 82 and 83 is initiated, is not entitled to any protection under Section 438 of the Code of Criminal Procedure. The relevant observations made by the Apex Court are as under :-

“7.2 Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that respondent No.2 – accused is absconding and even the proceedings under sections 82-83 of Cr.PC have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to respondent No.2 – accused by observing that the nature of accusation is arising out of a business transaction.

The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under sections 82-83 of Cr.PC by simply observing that “be that as it may”. The aforesaid relevan