NEUTRAL CITATION
R/CR.MA/11915/2023 ORDER DATED: 18/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11915 of 2023
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ATULBHAI SURESHBHAI PATIL
Versus
STATE OF GUJARAT
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Appearance:
MR DIPESH D SONI(9996) for the Applicant(s) No. 1
MS. SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 18/08/2023
ORAL ORDER
1. This application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR registered as CR No.II-11210004211758 of 2021 with Amroli Police Station, District-Surat for the offence punishable under Sections 8(C), 20(B)(II)(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Learned advocate appearing on behalf of the applicant submits that considering the nature of offence, the applicant may be enlarged on regular bail by imposing suitable conditions.
3. Learned Advocate for the applicant has submitted that the case of the applicant deserves consideration on the ground of parity. It is submitted that the co-accused, who are having almost identical role, have been enlarged on regular bail.
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4. Learned Advocate for the applicant has drawn attention of this Court to the order dated 17-01-2022 passed in Criminal Misc. Application No.20780 of 2021 and order dated 13-10-2021 passed in Criminal Misc. Application No.15529 of 2021.
5. Learned Advocate for the applicant has submitted that the applicant is the only driver of the vehicle, in which contraband article was found and in the vehicle, two other accused persons were also sitting on the back seat and therefore, the applicant cannot be considered to be in conscious possession of the contraband article.
6. Learned Advocate for the applicant has further submitted that the applicant is not involved in the offence, as the applicant has not received any monetary benefit with regard to the investigation about the rented car. The applicant has not paid any rent nor any amount is transferred to and from the Bank account of the applicant and it is only Bank account of the co-accused, which has been utilized.
7. Learned Advocate for the applicant has submitted that there is no evidence also with regard to the Call Detail Record, as only the Call Detail Record of the applicant is with co-accused; Jainish and Nikita on whose behalf, the applicant was driving the car.
8. Learned Advocate for the applicant has relied upon the decision of the Apex Court in case of Mohd Muslim @ Hussain Versus State (NCT of Delhi) passed in Criminal Appeal No(S). of 2023 [@ Special Leave Petition (CRL.) NO(S). 915 of 2023] dated March 28, 2023 to submit that the trial is prolonged and therefore, even if it is the case under N.D.P.S. Act attracting the provision of Section-37 of the N.D.P.S. Act, right to speedy trial shall prevail and in case of prolonged trial, the applicant is entitled to grant of bail.
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9. On the other hand, the learned Additional Public Prosecutor appearing for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP also submitted that contraband involved is 'Charas' weighing 4.684 Kgs. and therefore, clearly attracting the provision of Section-37 of the N.D.P.S. Act and therefore, the applicant cannot be enlarged on regular bail.
10. It is submitted that after the investigation, charge-sheet is filed and from the papers of the charge-sheet, sufficient evidence has come on record against the present applicant especially, the applicant was in the very car, in which contraband article 'Charas' was found.
11. Learned APP has further submitted that the applicant may not rely upon the ground of parity, as in case of the co-accused, who have been enlarged, the Court has observed the roles of those accused persons, which cannot be compared with the present applicant.
12. Having heard learned Advocates for the parties and having perused documents on record, it appears that F.I.R. came to be registered on 02-06-2021, when the Police intercepted the vehicle (four wheel vehicle), which was driven by the present applicant and occupied by the accused Nos.2 and 3 mentioned in the F.I.R. Upon interception and having undertaken the procedure required under the provision of the N.D.P.S. Act, black bag containing contraband article 'Charas' weighing 4.684 Kgs. was seized. The quantity thus of the contraband is more than commercial quantity and therefore, clearly attracts the provision of Section-37 of the N.D.P.S. Act.
13. The Court has examined the evidence in the form of running panchnama executed upon interception of the vehicle on 01-06-2021, wherein it is recorded in front of the panch-witnesses that the Page 3 of 5 Downloaded on : Sun Sep 17 01:32:42 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2023 ORDER DATED: 18/08/2023 undefined applicant was present in the vehicle with other accused persons carrying bag containing contraband article.
14. The Court has taken into consideration the statement of witness recorded on 06-06-2021; Hiteshbhai Chandulal Kokhra, whose vehicle was used for the purpose of offence and in his statement, he has stated that on 28-05-2021, accused persons, which included the present applicant and two other co-accused occupying the car and had come to his office and taken the vehicle in question on rent. Thereafter, this car was not returned for long period and even upon inquiry made by this witness for return of the car, he was not able to get back the car and thereafter, he came to know that it is his vehicle, which was involved in the present offence, which was being driven by the applicant and occupied by the co-accused.
15. In view of the aforesaid, apparently the present applicant was from the beginning with the co-accused persons, when they hired the car and till time, that car was intercepted and was found with contraband article. Therefore, there is prima facie evidence against the applicant in this regard. The Court has taken into consideration the role attributed to the other co-accused persons, who have been enlarged on bail, wherein this Court has recorded that co-accused; Hardikbhai Ishwarbhai Patel was implicated in the offence on the basis of the statement of co-accused, whereas the co-accused; Jignesh @ Montu Kiritbhai Patel has been implicated only on the basis of Call Detail Record with other co-accused persons. Role attributed to the present applicant being distinctly different, no parity can be drawn. In so far as the judgment relied upon in case of Mohd Muslim @ Hussain (supra), the Court finds that the applicant was apprehended on 02-06- Page 4 of 5 Downloaded on : Sun Sep 17 01:32:42 IST 2023
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16. In the aforesaid case, the Apex Court has also taken into consideration the facts of the case, which indicated that the appellant before the Apex Court was arrested on the basis of statement of co-accused. Therefore, the evidence against the appellant before the Apex Court was in the form of statement of co-accused as well as confessional statement of the appellant therein (Para-17).
17. In view of the aforesaid facts and circumstances, no case is made out for the exercise of discretion in favour of the applicant for the grant of regular bail in connection with aforesaid C.R. Hence, the application is dismissed. Rule is discharged.
(A.Y. KOGJE, J) PARESH SOMPURA Page 5 of 5 Downloaded on : Sun Sep 17 01:32:42 IST 2023