R/CR.MA/11291/2022 ORDER DATED: 12/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11291 of 2022
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MOHAMMED ABDUL AZIZ KHAN @ ABDUL AZIZ KHAN PATHAN
Versus
UNION OF INDIA
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Appearance:
AADITYA D BHATT(8580) for the Applicant(s) No. 1
CHANDNI S JOSHI(9490) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 1
MR MANAN MEHTA, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 12/10/2022
ORAL ORDER
1. Heard learned advocate Mr. Aaditya D. Bhatt for the applicant, learned advocate Mr. Kartik V. Pandya for respondent No.1-Narcotic Control Bureau and learned APP Mr. Manan Mehta for the respondent-State.
2. By way of this application under Section 439 of Code of Criminal Procedure, the applicant has prayed for his release on regular bail in connection with C.R. No.NCB/AZU/CR-02/2021 registered with Narcotic Control Bureau, Ahmedabad on 10.02.2021.
3. It is the case of the prosecution that the present applicant was traveling from Jammu in a train carrying a Page 1 of 11 Downloaded on : Wed Oct 19 20:01:33 IST 2022 R/CR.MA/11291/2022 ORDER DATED: 12/10/2022 contraband charas which was to be delivered to the accused Nos.1 and 3 on based on that information NCB set up a raid and caught the present applicant and seized the plastic bag containing the contraband charas. The quantity of charas was 2.143 kilograms which is commercial quantity as any quantity beyond one kilogram is considered to be a commercial quantity and that is how the present applicant was arrested on 10.02.2021.
4. Learned advocate Mr. Aaditya Bhatt made submissions mainly on two grounds 1st by stating that though the commercial quantity which is recovered by the NCB the rigors of Section 34 would not apply in the present case for the reasons that mandatory provisions of Section 42 has not been complied with by the NCB while carrying out the contraband. He submitted that though the raid trap was held at public place considering the fact that at the time when the contraband was seized, co-accused Nos.1 Page 2 of 11 Downloaded on : Wed Oct 19 20:01:33 IST 2022 R/CR.MA/11291/2022 ORDER DATED: 12/10/2022 and 3 were on a private vehicle. The said fact is required to be considered at the time of considering the application of the present applicant as the exception of Section 43 would not be applicable if the vehicle is a private vehicle.
5. Learned advocate Mr. Aaditya Bhatt relied upon the judgment in the case of Boota Singh v. State of Haryana reported in AIR 2021 SC 1913, wherein, the Hon'ble Supreme Court in para-12 observed as under:-
"12. The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to Accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression "public place" as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa MANU/SC/0704/2016 : (2016) 11 SCC 687, the relevant provision would not be Section 43 of the NDPS Act but the case would come Under Section 42 of the NDPS Act."
6. Learned advocate Mr. Bhatt further submitted that though he is aware about the fact that the co-accused application for bail is rejected by this Court vide order Page 3 of 11 Downloaded on : Wed Oct 19 20:01:33 IST 2022 R/CR.MA/11291/2022 ORDER DATED: 12/10/2022 dated 21.09.2022 passed in Criminal Misc. Application No.4140 of 2022 on the medical ground also the case of the present applicant is required to be considered as the age of present applicant is 65 years and he is a retired army man and suffering from multiple illness for which he is not being provided proper treatment by the jail authorities, and therefore, on medical ground also the case of the present applicant is required to be considered.
7. Further in support of submissions in respect of fact that the prosecution has not followed the mandatory provisions of Section 42. Learned advocate Mr. Aaditya Bhatt relied upon one judgment by Panjab and Haryana High Court dated 14.06.2022 in CRM-M-25498 of 2021 in case of Pankaj V. State of Punjab, and more particularly, by relying upon para-12 of the aforesaid judgment, submitted that in case if the mandatory provisions of Section 42 are not complied with by the prosecution in Page 4 of 11 Downloaded on : Wed Oct 19 20:01:33 IST 2022 R/CR.MA/11291/2022 ORDER DATED: 12/10/2022 that case the applicant is entitled to be released on bail. Learned advocate Mr. Bhatt also submitted that there are no past antecedents as far as the present applicant is concerned. By making the aforesaid submissions, he prayed for enlarging the present applicant on bail. Except the aforesaid submissions no other submissions were made by learned advocate Mr. Bhatt nor any decisions were relied upon by him.
8. Learned advocate Mr. Kartik Pandya appearing for respondent - NCB vehemently opposed the bail application and submitted that the present applicant was the person who brought the commercial quantity of contraband from Jammu to Vadodara and at the time when the aforesaid contraband was delivered to accused No.1 and 3, he was arrested in respect of a trap made by the NCB. He further submitted that the trap was led outside the railway station which is a public place and the vehicle used by the Page 5 of 11 Downloaded on : Wed Oct 19 20:01:33 IST 2022 R/CR.MA/11291/2022 ORDER DATED: 12/10/2022 accused Nos.1 and 3 was a scooter, and therefore, reliance placed by the learned advocate for the applicant on judgment in case of Boota Singh v. State of Haryana would not be applicable in the present case. Learned advocate Mr. Kartik Pandya further submitted that considering the commercial quantity of the contraband recovered from the accused persons the rigors of Section 37 would be applicable in the present case. Learned advocate Mr. Kartik Pandya further submitted that at the time when the present applicant was arrested he was found with conscious possession of the contraband which was handed over to accused Nos.1 and 3 who on receipt of the contraband used the two wheeler to ran away from the place.
9. Learned advocate Mr. Kartik Pandya relied upon the judgment of the Hon'ble Supreme Court in case of Union of India through Narcotics Control Bureau v. Mohammad Page 6 of 11 Downloaded on : Wed Oct 19 20:01:33 IST 2022 R/CR.MA/11291/2022 ORDER DATED: 12/10/2022 Navaj and submitted that in para-28 of the said judgment, the Hon'ble Supreme Court has considered the judgment in case of Boota Singh (supra) relied upon by the learned advocate for the applicant and held that whether the compliance of procedure laid down under Section 42 of NDPS Act or not is a question of fact and by making aforesaid submission he submitted that the case of the present applicant in respect of non compliance about Section 42 of the Act may not be considered at this stage as the same is a question of fact which can be tested at the time of trial by leading the evidence.
10. As far as the submissions of learned advocate for the applicant in respect of medical condition of the present applicant is concerned, both learned advocates Mr. Kartick Pandya and learned APP Mr. Manan Mehta oppose the application by stating that proper medical treatment is being given by the Jail Authorities and even in case if Page 7 of 11 Downloaded on : Wed Oct 19 20:01:33 IST 2022 R/CR.MA/11291/2022 ORDER DATED: 12/10/2022 applicant's condition requires any further medical assistance or treatment, the Jail Authorities shall take care of the health of the present applicant and that cannot be a ground to release the applicant on bail for an offence for which if the present applicant is held guilty, the punishment would be up to 20 years. Further, both learned advocates Mr. Pandya and Mr. Mehta appearing for the respondent submitted that considering the fact that the contraband which was recovered from the present applicant was of commercial quantity rigors of Section 37 also would be applicable in the present case, and therefore, unless it is shown by the applicant that unless the applicant satisfied the Court that there are reasonable grounds for believing that he is not guilty of such an offence and he is not likely to commit any offence while on bail, he should not be released on bail.
11. I have considered the submissions made by learned Page 8 of 11 Downloaded on : Wed Oct 19 20:01:33 IST 2022 R/CR.MA/11291/2022 ORDER DATED: 12/10/2022 advocates appearing for the parties and I have perused the record which is made available by the learned advocate for the parties. As far as the submission of learned advocate Mr. Aaditya Bhatt about non compliance of Section 42 is concerned, as submitted by learned advocate Mr. Pandya, relying upon the judgment in case of Union of India through NCB, Lakhnow v. Mohammad Navaj Khan, the question related to compliance of Section 42 of NDPS Act, is a question of fact and once it is held to be a question of fact by the Hon'ble Supreme Court, the same cannot be considered at this stage as it is a matter of evidence which can be considered by leading the evidence at the stage of trial, and therefore, to accept the aforesaid contention of the learned advocate for the applicant would be premature at this stage considering the judgment of the Hon'ble Supreme Court in the case of Union of India v. Mohammad Navaj Khan.
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R/CR.MA/11291/2022 ORDER DATED: 12/10/2022
12. Further as far as the reliance place upon by learned advocate for the applicant in case of Pankaj v. State of Punjab, and more particularly, para-12 of the said judgment is concerned, the observation made in para-12 of the said judgment is based upon various stage about non compliance of Section 42 of NDPS Act. However, now in view of the latest judgment of the Hon'ble Supreme Court in the case of Union of India v. Mohammad Navaj Khan as the said question is now held to be a question of fact and as observed in foregoing paragraphs, this Court does not deem it appropriate to go into the details about the observations made by Panjab and Haryana High Court.
13. As far as the submission of the learned advocate for the applicant in respect of deteriorating health and medical condition of the present applicant is concerned, the same can be taken care of by directing the Jail Authorities to give proper treatment to the present applicant and that Page 10 of 11 Downloaded on : Wed Oct 19 20:01:33 IST 2022 R/CR.MA/11291/2022 ORDER DATED: 12/10/2022 cannot be the sole ground for enlarging the present applicant on bail. Further, this Court has also taken into consideration the fact that the co-accused, namely, Kalim Mohammad Husen Kureshi, who has preferred a bail application before this Court being Criminal Misc. Application No.4140 of 2022 has already been dismissed by this Court vide order dated 21.09.2022 and there is not much difference between the role of present applicant and the applicant whose bail application was dismissed by this Court considering the fact that all the accused persons were arrested by the NCB at the time when the quantity of contraband was supplied by the present applicant to the co-accused persons whose bail application has already been rejected by this Court, and therefore, on that ground also the present application is required to be dismissed and the same is dismissed. Rule discharged. No order as to costs.
(NIRZAR S. DESAI,J) Manoj Kumar Rai Page 11 of 11 Downloaded on : Wed Oct 19 20:01:33 IST 2022