Gujarat High Court
Paramjit Singh S/O Balvir Singh vs State Of Gujarat on 30 November, 2023
NEUTRAL CITATION
R/CR.MA/18474/2023 ORDER DATED: 30/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 18474
of 2023
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PARAMJIT SINGH S/O BALVIR SINGH
Versus
STATE OF GUJARAT
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Appearance:
MR ANMOL S PUROHIT(10058) for the petitioner(s) No. 1
MR TIRTHRAJ PANDYA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 30/11/2023
ORAL ORDER
1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11200050221024 of 2022 registered with Nanapondha Police Station.
2. Brief facts of the case are that upon information received by SOG Valsad of Vapi Camp, upon interception and search of a TATA closed body Container vehicle no. MH 04 GF 8493 with driver - Laxman Motilal Chavan and cleaner Ratanlal Narayan Regar, 108 plastic bags of poshdoda (poppy straws) totally weighing 2148.930 kgs were found. Upon interrogating regarding the same, the arrested accused stated the consignment was for delivery in Silvassa on the say of wanted accused one Sunny @ Gora and other Gurudas Singh Sardar @ Page 1 of 6 Downloaded on : Thu Nov 30 20:47:23 IST 2023 NEUTRAL CITATION R/CR.MA/18474/2023 ORDER DATED: 30/11/2023 undefined Gurudas Rai @ Gyani who are residents of Moga, Punjab. Hence, impugned FIR is filed.
2.1 That, after completion of investigation, a chargesheet is filed by the investigation agency before this Hon'ble Court and the same is registered and numbered as Sp. NDPS No. 01/2023 on 14/02/2023. That in the said chargesheet at Sr.no.12 (Particulars of accused not charge-sheeted) at page 12, the name of the petitioner is added with the alleged alias of accused named "Sunny" and "Gora" as stated by the arrested accused and is further declared as 'Farari Jaher Karayel' i.e. proclaimed Offender.
2.2 The present petitioner preferred an application for Anticipatory Bail before the Ld. Additional Sessions & NDPS Special Judge of Valsad at Dharampur vide Criminal Misc. Application No. 237 of 2023 and the Ld. Additional Sessions Judge, Valsad at Dharampur rejected the said application of the petitioner by the order dated 22.08.2023.
3. Learned advocate Mr. Purohit for the petitioner would submit that the petitioner is not Sunny @ Gora named in the FIR, but, the name of the present petitioner is Paramjit Singh Balvir Singh and he has nothing to do with the accused namely, Sunny @ Gora. Placing reliance upon the certificate issued by the Sarpanch of concerned village, he would submit that the Sarpanch has clearly certified that the petitioner is not Sunny @ Gora. Therefore, he would submit that there is classic case of mis-identity or identity of the accused not matching with the Page 2 of 6 Downloaded on : Thu Nov 30 20:47:23 IST 2023 NEUTRAL CITATION R/CR.MA/18474/2023 ORDER DATED: 30/11/2023 undefined present petitioner. Yet, the Police is running behind the petitioner to arrest him for the alleged offence. He would further submit that the petitioner has never met accused Nos.1 and 2, who are the prime culprits of the offence. The mobile number, which is shown in the investigating report is also not belonged to the present petitioner and in these given facts and circumstances, the police is not arresting the petitioner since long and therefore, he submits to allow this petition and grant anticipatory bail to the petitioner.
4. Opposing grant of bail, learned APP firstly pressed section 37 of the NDPS Act to submit that the petitioner has failed to clear bar envisaged u/s 37 of the NDPS Act. He would further submit that in view of affidavit filed by the investigating officer before the learned trial Court, it is clear that the present petitioner is on run and is absconding. He would further submit that two antecedents of identical nature of offence under the NDPS Act are also registered against the petitioner. He would further submit that the present petitioner is one of the persons involved in the chain of entire sequence of purchasing and selling poppy straws. The petitioner has purchased the same from wanted accused Kala and then he has supplied it to accused Nos.1 and 2. Thus, considering the role of the petitioner and further considering the aspect that commercial quantity of the contraband substance is involved in the offence, the petitioner could not be given anticipatory bail. Upon his submission, he requests to dismiss the petition.
5. Having heard learned advocates appearing for the Page 3 of 6 Downloaded on : Thu Nov 30 20:47:23 IST 2023 NEUTRAL CITATION R/CR.MA/18474/2023 ORDER DATED: 30/11/2023 undefined respective parties and going through the documents on record as well as order passed by the learned Session Judge, it appears that the police / investigating officer has visited the residence of the petitioner on 21.9.2022 and recorded the statement of mother of the petitioner, who has categorically stated that her son is not present at home since last 10 to 12 days. The learned Session Judge has also recorded that the statement of other witnesses indicates that the accused has used mobile No.7087568891 for commission of the offence. What more appears that the accused is on run and is not available for investigation. The contraband substance poppy involved in the offence is weighing 2148.93 kg valued at Rs.64,46,790/-. Thus, it is commercial quanity of the poppy straws being contraband substance. The accused is involved in such offence, which is not only against the society, but also ruing the youth of the country. Moreover, there is bar of section 37 of the NDPS Act and the petitioner could not make out a case to override that bar.
6. In State of Haryana Vs. Dharamraj reported in 2023 INSC 784, the Hon'ble Apex Court, after referring earlier judgment, in para 16 and 17 observed as under:-
"16. What the High Court (also) lost sight of was that the respondent was a declared proclaimed offender. The High Court notes, at Paragraph 28, that it was not dealing with the prayer seeking quashing of the proclamation proceedings as the same were not made part of the petition before it. As things were, the respondent was declared a proclaimed offender on 05.02.2021, and sought anticipatory bail from the High Court only in October, 2021. As such, it was not correct for the High Court to brush aside such factum, on the basis of averments alone, purporting to explain the backdrop of such declaration by mere Page 4 of 6 Downloaded on : Thu Nov 30 20:47:23 IST 2023 NEUTRAL CITATION R/CR.MA/18474/2023 ORDER DATED: 30/11/2023 undefined advertence to a similar-sounding name, in the petition before it, as recorded at Paragraphs 9 and 10 of the Impugned Order. The declaration of the respondent as a proclaimed offender, and such declaration subsisting on the date of the Impugned Order, we are unable to agree with the High Court that the respondent was entitled to 'reform and course correct'.
17. The respondent, without first successfully assailing the order declaring him as a proclaimed offender, could not have proceeded to seek anticipatory bail. Looking to the factual prism, we are clear that the respondent's application under Section 438, CrPC should not have been entertained, as he was a proclaimed offender. We may note that in Lavesh v State (NCT of Delhi), (2012) 8 SCC 730, this Court was categoric against grant of anticipatory bail to a proclaimed offender. In the same vein, following Lavesh (supra) is the decision in State of Madhya Pradesh v Pradeep Sharma, (2014) 2 SCC 171, where this Court emphasised that a proclaimed offender would not be entitled to anticipatory bail. Of course, in an exceptional and rare case, this Court or the High Courts can consider a plea seeking anticipatory bail, despite the petitioner being a proclaimed offender, given that the Supreme Court and High Courts are Constitutional Courts. However, no exceptional situation arises in the case at hand. Following Pradeep Sharma (supra), in Prem Shankar Prasad v State of Bihar, 2021 SCC OnLine SC 955, this Court was unequivocal that the High Court therein erred in granting anticipatory bail ignoring proceedings under Sections 82 and 83, CrPC. In Abhishek v State of Maharashtra, (2022) 8 SCC 282, this Court concluded:
"'68. As regards the implication of proclamation having been issued against the appellant, we have no hesitation in making it clear that any person, who is declared as an "absconder" and remains out of reach of the investigating agency and thereby stands directly at conflict with law, ordinarily, deserves no concession or indulgence. By way of reference, we may observe that in relation to the indulgence of pre-arrest bail in terms of Section 438 CrPC, this Court has repeatedly said that when an accused is absconding and is declared as proclaimed offender, there is no question of giving him the benefit of Section 438 CrPC. [For example, Prem Page 5 of 6 Downloaded on : Thu Nov 30 20:47:23 IST 2023 NEUTRAL CITATION R/CR.MA/18474/2023 ORDER DATED: 30/11/2023 undefined Shankar Prasad v. State of Bihar, (2022) 14 SCC 529: 2021 SCC OnLine SC 955]'."
7. The accused is on run that is unquestioned aspect. In view of the dictum of the Hon'ble Apex Court, the petition does not hold merit. In premise of above, I do not find any reason to exercise judicious discretion in favour of the petitioner.
8. Resultantly, the petition fails and stands dismissed at admission stage.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 6 of 6 Downloaded on : Thu Nov 30 20:47:23 IST 2023