R/CR.MA/23914/2022 ORDER DATED: 13/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23914 of 2022
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KALURAM SHIVLAL GUJJAR
Versus
STATE OF GUJARAT
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Appearance:
MR DHARMESH C GURJAR(5170) for the Applicant(s) No. 1
REKHABEN C GURJAR(7360) for the Applicant(s) No. 1
MS VRUNDA C SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 13/03/2023
ORAL ORDER
1. This successive bail application is filed under Section 439 of Cr.P.C., 1973 in connection with the FIR being C.R. No.11994001220187 of 2022 registered with Ahmedabad Railway Police Station, Dist: Ahmedabad City for the offences punishable under Sections 8(C), 20(b)(ii)(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Facts and circumstances giving rise to filing of present application are that, on 28.07.2022, the applicant Kaluram Shivlal Gujjar and co-accused Hetram Jagdishbhai Shahu, caught red handed by the police official of S.O.G., Ahmedabad with commercial quantity of contraband ganja weighing 38.396 kilograms. As per the prosecution case, the accused along with absconding accused Narendra Jadusinh Gurjar, came at Ahmedabad Railway Station, along with trolley bags filled with contraband ganja as it had to be handover to the concerned Page 1 of 5 Downloaded on : Thu Mar 16 20:36:53 IST 2023 R/CR.MA/23914/2022 ORDER DATED: 13/03/2023 person so it could reach at Rajasthan. However, before it could be handed over, the police official of S.O.G., Ahmedabad, who were on watch, caught red handed the applicant and accordingly, after following the procedure, the contraband ganja seized and recovered from the conscious possession of the applicant.
3. In the aforesaid facts, FIR came to be registered for the offences as referred above and after completion of investigation, the chargesheet came to be filed against the accused. Bail application after filing of chargesheet has been rejected by the Sessions Court concerned. Dissatisfied with the order, the instant application is preferred by the applicant herein.
4. Mr. Dharmesh Gurjar, learned counsel appearing for and on behalf of the applicant submitted that, the applicant has been falsely implicated in the alleged offence. The trolley bags seized by the investigating officer are not belongs to the applicant herein and as such, the applicant had no knowledge about the contraband ganja. He has urged that, the applicant is in custody since July, 2020. That, the applicant having a responsibility to fed the family as he is the only bread winner of the family. That, trial would take considerable time and after filing the chargesheet, further custody of the applicant has not been claimed by the prosecution and therefore, when the applicant is easily available at the trial, keeping him behind bar would not serve further purpose.
5. In the aforesaid contentions, learned counsel for the Page 2 of 5 Downloaded on : Thu Mar 16 20:36:53 IST 2023 R/CR.MA/23914/2022 ORDER DATED: 13/03/2023 applicant has prayed that, discretion may kindly be exercised by enlarging the applicant on bail imposing suitable conditions.
6. Learned APP Ms. Vrunda Shah, appearing for the State vehemently opposed the bail application and contended that the applicant has been found in possession of commercial quantity of contraband and keeping in view the restriction imposed by Section 37 of NDPS Act, no case for grant of bail is made out. She would further submits that where prima facie case is made out for the offence which is grave in nature, the Court may not enlarge the accused on bail and therefore, she prays that no case is made out to exercise discretion of this Court.
7. I have considered the rival submissions addressed before this Court.
8. The contention of the applicant is that, he has been falsely implicated in the alleged offence and the trolley bags were not belong to him. In this connection, upon perusal of the contents of FIR and chargesheet case papers, it prima-facie appears that, the applicant along with the co-accused found with commercial quantity of ganja weighing 38.396 kilograms, allegedly carried in the trolley bags as referred in the chargesheet case papers. The trolley bags carried by the applicant herein, wherein the police official found 19.471 kilogram ganja, whereas, in the trolley bags carried by the co- accused Hetram, 18.925 kilogram ganja was found. In such circumstances, the total recovery of ganja is 38.396 kilogram which is admittedly a commercial quantity. At this stage, Page 3 of 5 Downloaded on : Thu Mar 16 20:36:53 IST 2023 R/CR.MA/23914/2022 ORDER DATED: 13/03/2023 individual recovery for the purpose of determining the quantity whether it is commercial or below commercial cannot be considered and when the accused found together at the place, it can be presumed the knowledge on their part. Thus, therefore, this Court is of considered opinion that prima-facie it proves that, the applicant was found with the commercial quantity of contraband ganja. So far contention raised by the applicant with regard to false implication, there is nothing on record to suggest that he has been falsely implicated. The Hon'ble Apex Court in case of State of Kerala Vs. Rajesh Kumar [AIR 2020 SC 721] has reiterated the legal position as regard the limitation imposed by Section 37 of the Act and has further held that liberal approach in the matters of bail in an offence under the NDPS Act is uncalled for. It is the contention of the applicant that, he is in custody since 2019 and trial is still not commenced and therefore, he may be enlarged on bail. The Hon'ble Supreme court in a very recent judgment rendered in case of Narcotics Control Bureau Vs. Mohit Agarwal [Cri. Appeal Nos.1001-1002/2022], while deciding an appeal filed by NCB challenging grant of bail to an accused by the High Court cancelled the bail while reiterating the view that provisions of Section 37 of the Act have to be strictly complied with and that mere a length of custody cannot be a consideration for grant of bail. Paragraphs 14 and 18 of the said judgment reads as follows:
"14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused Page 4 of 5 Downloaded on : Thu Mar 16 20:36:53 IST 2023 R/CR.MA/23914/2022 ORDER DATED: 13/03/2023 person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe Criminal Appeal Nos. ............ of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021 that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act."
9. For the foregoing reasons and considering the peculiar facts and circumstances of the case, more particularly the role attributed to the applicant herein and evidence in support of charge, there are reasonable grounds for believing that the applicant has committed the offence and applicant has not been able to satisfy the Court that there are reasonable grounds to believe that he is not guilty of such an offence and therefore, no case for grant of bail exists, more particularly having regard to the provisions of Section 37 (1)(b)(ii) of NDPS Act.
10. No ground, is therefore, found to grant bail to the applicant. The application is therefore rejected. Rule is discharged. Nothing in this order shall tantamount to the findings of the merits of the case.
(ILESH J. VORA,J) TAUSIF SAIYED Page 5 of 5 Downloaded on : Thu Mar 16 20:36:53 IST 2023