Gujarat High Court
Mohmmad Rizvan @ Ustad Abdulkadar ... vs State Of Gujarat on 14 August, 2025
NEUTRAL CITATION
R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025
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Reserved On : 05/08/2025
Pronounced On : 14/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 11338
of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
No
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MOHMMAD RIZVAN @ USTAD ABDULKADAR BOMBAYWALA
Versus
STATE OF GUJARAT
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Appearance:
MR AMIT D SHAH(11232) for the Applicant(s) No. 1
MS. SARIKA S. SALVE(14441) for the Applicant(s) No. 1
MR. HARDIK SONI, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of notice of rule for respondent - State of Gujarat.
2. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the applicant has prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No.11210007250296 of 2025 registered with Jahangirpura Police Station, Surat for the alleged offences as mentioned in the FIR.
3. According to the FIR, which has been lodged by one Imtiyaz Fakrumohammed, A.S.I., Buckle No.2645, serving at S.O.G., Surat, while he was present at the S.O.G. Field Office along with Page 1 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025 NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined the other police personnel, he received a secret information from the reliable sources that one person, namely, Sufiyan @ Sibu S/o Huasain Shaikh is indulged in the business of selling drugs in the Surat City, who is supposed to pass on the road heading towards Swastik Villa, situated opposite Jahangirpura Sarnam Residency on his Splender Bike bearing its Registration No.GJ-05-LL-5535 during the period between 1:00 p,m and 2:00 p.m., and accordingly, acting swiftly upon the said information, a raiding party was constituted. Then, after following certain requisite procedure regarding carrying out the raid, the complainant along with the other staffers left the police station. It is alleged that at around 13/30 hours, the raiding party intercepted one Splender two-wheeler bearing its registration No.GJ-05-LL-5535 driven by one person, and upon the said person being asked about his name, he identified himself as Sufiyan @ Sibu S/o Hussain Shaikh. Then, upon search being carried out of the said person, one black coloured plastic made polythene was found from the right side rear pocket of the pant of the said person, from which, two small push-lock plastic bags were found, and upon opening each bag, an off-white coloured substance was found to be there in both the bags, and therefore, the forensic officials were called for, who then conducted the scientific examination of the said contraband substance, upon which, it was revealed that the substance found in both the bags was Mephedrone, and upon the said psychotropic substance being weighed with the weighing scale, the same was found to be of 129.58 grams, valued at Rs.12,95,800 /-. With this sort of allegations, the present FIR has been registered.
4. Thus, apprehending his arrest pursuant to the registration of the aforesaid FIR, the applicant preferred anticipatory bail Page 2 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025 NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined before the trial court, however, the same came to be rejected by the trial court.
5. Being aggrieved, the applicant is here before this Court with the present application.
6. Learned senior advocate Mr. I.H.Sayed assisted by learned advocate Mr. Amit D. Shah and learned advocate Ms. Sarika Salve appearing for the applicant submits that the allegations made in the FIR are of such a nature, for which, custodial interrogation of the applicant at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation as well as the trial proceedings and will not flee from justice. He further submits that the present applicant was not caught red-handed along with the contraband substance, and he has falsely been arraigned as an accused on the basis of the confessional statement made by the co-accused as the proposed receiver. He also submits that the contraband substance was not found from the conscious possession of the present applicant. Learned senior advocate Mr. Sayed further submits that even the present applicant was the informant of the police, and he used to provide information to the police about the drug peddlers, and as a part of his work, for the purpose of gathering the information to be provided to the police, he came into contact with the other accused persons, which is evident from the transcript of the conversation that had taken place between the present applicant and the police, a copy of which is also placed on record, however, on the basis of certain conversations that had taken place between the applicant and the other co-accused, as stated above, for getting the information, he has been falsely implicated in the present offence. Learned senior advocate Mr. Sayed submits that except the statement of the co-accused, there is no Page 3 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025 NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined other incriminating material collected by the investigating officer, establishing nexus between the applicant and the commission of crime. He further submits that the present applicant is not directly or indirectly connected with the commission of the crime. He also submits that total five cases were registered against the present applicant, however, he has already been acquitted in all those five case, and thus, it can be said that the present applicant does not have any antecedents. Learned senior advocate Mr. Sayed on instructions states that the applicant is ready and willing to abide by all the conditions that may be imposed while releasing the applicant on anticipatory bail. Learned advocate, therefore, submits that considering the above facts, the applicant may be granted anticipatory bail. To buttress his submissions, learned senior advocate Mr. Sayed has placed reliance upon the following decisions;
i) In the case of Vijay Singh vs. The State of Haryana, Special Leave to Appeal (Cri.) No.1266 of 2023, decided on 17.05.2023;
ii) In the case of Chandu Mandal vs. State of West Bengal, Special Leave to Appeal (Cri.) No.15494 of 2023, decided on 07.12.2023;
7. On the other hand, the present application has been vehemently opposed by the learned APP. He submits that on the basis of secret information received by the police, they intercepted one vehicle and arrested one person from the spot along with the contraband substance, i.e, the accused No.1. Learned APP further submits, that upon the search being carried out of the arrested accused, a huge volume of contraband substance was found from him. Then, after completing all the requisite and mandatory procedure, the FIR came to be lodged, and pursuant to the registration of the FIR, investigation Page 4 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025 NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined commenced and during the course of investigation name of the present applicant has come on surface. He submits that from the affidavit filed by the investigating officer before the trial court while opposing the bail application, it clearly appears that during the course of investigation, it has come on record that the present applicant was the proposed receiver. He also submits that, in fact, the applicant has claimed that he is the informant of the police, and to substantiate the said claim, he has also produced the transcript of the conversation that had taken place between the applicant and the police, however, as per the say of the police officer to whom he was providing information, all the informations that the applicant has provided uptill now, are all incorrect one. Thus, all the aforesaid sequence of events clearly indicate the direct involvement of the present applicant in the commission of the crime. Moreover, there are five antecedents against the present applicant, wherein one pertains to NDPS. He further submits that from the materials collected so far, it appears that the present applicant was in constant touch with the other co-accused who was caught red-handed along with the contraband substance since last five years. Moreover, the present applicant very deliberately remained in touch with the other co-accused on WhatsApp call, and there were certain correspondences between both of them in a code language, and as such, the same is required to be thoroughly investigated, for which, the custodial interrogation of the present applicant is very much necessary. Learned APP further submits that more than the commercial quantity of contraband substance, i.e, Mephedrone weighing 129.58 grams was recovered in the present case and, therefore, rigors of Section 37 would come into play in the present case and squarely applicable so far as Page 5 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025 NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined the present applicant-accused is concerned. Learned APP also submits that the police papers clearly shows that the present applicant-accused is involved in the alleged offence from the very inception. Thus, it is apparent on the face of the record that all the accused persons, in connivance with each other, have committed the offence. It is submitted that applicant has failed to establish case for extraordinary relief. In such circumstances, referred to above, learned APP prays that there being no merit in the present application, the same be rejected.
8. Heard the learned counsel appearing for the parties and perused the record.
9. It appears from the record that on the basis of tip-off received by the police, one vehicle was intercepted, and one person was caught red-handed i.e, the accused No.1 along with the contraband substance. Then, upon the arrested person being interrogated, he revealed the name of the present applicant along with his entire role in the commission of the crime. As per the police papers, and the statement of the co-accused, the applicant was the proposed receiver of the contraband substance, and it was the present applicant, who entrusted the work of collecting the contraband substance on his behalf to the co-accused. It also appears that the present applicant has been named in the FIR as the proposed receiver of the contraband drugs. It further appears from the record that the present applicant is having past antecedents, and thus, the applicant seems to be habitual offender. Thus, from the materials collected so far and produced before the Court, prima facie, involvement of the present applicant is clearly Page 6 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025 NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined found out in the commission of the alleged offence. Moreover, there are certain WhatsApp chats beng produced on record, wherein there was some conversation beween the applicant and the co-accused in a code language, and therefore, to decode the said language, the custodial interrogation of the present applicant is very much necessary. That apart, the quantity of the contraband substance recovered in the present case is commercial in nature, and as such, rigors of Section 37 of the NDPS Act would also come into play. Thus, at this juncture, when the investigation is at a nascent stage, in the considered opinion of this Court, discretion should not be exercised in favour of the present applicant.
10. Now, I would like to refer and analyze the provisions and objective of the NDPS Act. Section 37 of the Act reads as under:
"37. Offences to be cognizable and non-bailable. -- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.Page 7 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025
NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined (2) The limitations on granting of bail specified in clause
(b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."
11. In view of the gravity of the consequences of drug trafficking, the offences under the Act have been made cognizable and non-bailable. The Act does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial quantity unless the twin conditions prescribed under the Section have been met. The conditions include:
a. hearing the Public Prosecutor; and b. satisfaction of the Court based on reasonable grounds that the accused is not guilty of the offence and that he is likely to not commit an offence of a similar nature.
12. Thus, it is evident that the present section limits the discretion of the court in matters of bail by placing certain additional factors over and above, what has been prescribed under the Code.
13. The contours of Section 37 of the NDPS Act have been analysed by the Hon‟ble Supreme Court in the case of Union of India v. Ram Samujh (1999) 9 SCC 429. In this case, the Apex Court was required to adjudge the validity of the order on bail granted by the High Court in a case registered under the Act. The Hon'ble Court extracted the Statement of Objects and Reasons for the introduction of amended Section 37 of the Act through Bill No. 125 of 1988. It is relevant to extract those for the present analysis, which reads as:
Page 8 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined "6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus:
"Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt."(emphasis supplied)
7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para
24) "24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years.
Therefore, in order to effectively control and eradicate this proliferating and booming Page 9 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025 NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine."
14. Thus, what is evident from the above is that the offences prescribed under the Act are not only a menace to a particular individual but to the entire society especially, the youth of the country. Such offences have a cascading effect and are in vogue these days, thus destroying the capabilities and lives of a big chunk of the population and trend has been growing over the years. Therefore, in order to prevent the devastating impact on the people of the nation, Parliament in its wisdom deemed it fit to introduce stringent conditions for grant of bail under the Act. The Court has to stay mindful of the legislative intent and mandate of the Act while granting bail in such matters.
15. So far as the statement made by the co-accused is concerned, I would like to refer to and rely upon the decision of this Court wherein this Court has considered the question whether the statement of co-accused before the police implicating any person in the offence, can the police authority use such statement as clue while investigating the offence to reach the root of crime and the other accused persons. This Court has considered the said question and came to the conclusion that while investigating the offence and interrogating other accused persons, if any statement made during the investigation, that can be considered by the Investigating Officer as a clue while investigating the offence Page 10 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025 NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined and/or root of crime. While coming to such conclusion, this Court after considering number of decisions of the Apex Court as well as of this Court, has observed in case of MOHMED SALIM ABDUL RASID SHAIKH V. STATE OF GUJARAT reported in 2001 [2] GLR 1580 as under;
"13. There is no scope for present applicant to urge that he may be saved from disgrace or unwarranted hardship. While entertaining the anticipatory bail application of the accused, the Court should consider various aspects such as;
[i] earlier offences registered against the applicant accused and the nature thereof including the area of activity, modus etc. if brought to the notice of the Court;
[ii] gravity of the circumstances in which the offence is committed. Whether custodial interrogation is, prima facie, unavoidable ?
[iii] likelihood of the accused fleeing from justice;
[iv] position and status of the accused individually and also with reference to the victim and witnesses; [v] likelihood of repetition of similar type of offence;
[vi] whether he would jeopardise his own life being faced with grief or grim prospects of possible conviction in the case;
[vii] likelihood of tampering with the evidence or witnesses during the process of investigation, status and stage of investigation;
[viii] plea of false implication on some special vendetta, if taken.Page 11 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025
NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined [ix] other relevant grounds which may apply to facts and circumstances of that particular case;
16. It is also pertinent to note that the police has received a clue against the present applicant as per the statement made by the co-accused already arrested. Irrespective of the fact that statement of the co-accused to police is not admissible in evidence before the Court but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation. Premature stage of investigation cannot be ignored and anticipatory bail, as a matter of course, should not be granted.
17. Similarly, the Apex Court has also considered the scope of Section 438 in case of DUKHISHYAM BENUPANI, ASSTT DIRECTOR, ENFORCEMENT DIRECTORATE [FERA] V. ARUN KUMAR BAJORIA reported in 1998 [1] SCC 52. The relevant observations made in para-7 are quoted as under :-
"7. It seems rather unusual that when the aggrieved party approached the High Court challenging the order passed by a subordinate court the High Court made the position worse for the aggrieved party. The officials of the Directorate are now injuncted by the Division Bench from arresting the respondent and the time and places for carrying out the interrogations were also fixed by the Division Bench. Such kind of supervision on the enquiry or investigation under a statute is uncalled for. We have no doubt that such type of interference would impede the even course of enquiry or investigation into the serious allegations now pending. For what purpose the Division Bench made such interference with the functions of the statutory authorities, which they are bound to exercise under law, is not discernible from the order under challenge. It is not the function of the Court to monitor Page 12 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025 NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined investigation processes so long as such investigation does not transgress any provision of the law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences. A blanket order full insulating a person from arrest would make his interrogation a mere ritual."
18. Thus, what is discernible from the above is that while deciding anticipatory bail application, it is the first duty of the Court to see seriousness of the offence, prima facie case and interest of the society at a large. Therefore, when no special and compelling circumstances made out before the Court and no case of false implication of present applicant in the alleged offence is made out before this Court, I am of the opinion that discretionary powers of this Court should not be exercised in favour of the present applicant.
19. In view of above discussion and considering the material on record produced before this Court, I am of the opinion that there seems to be a prima facie involvement of the present applicant in the commission of the alleged offence as per the statement made by the co-accused. This Court is of the opinion that at the initial stage of the investigation of the offence, grant of anticipatory bail in favour of the applicant is likely to hamper the investigation and investigating agency is likely to lose an opportunity to exploit all the fact situation, probabilities or opportunities which the Agency may get during the custodial interrogation of a person, and therefore, keeping in mind all the factors, no interference is required at this stage. The impugned order passed by the trial court rejecting anticipatory bail application of the applicant is just and proper Page 13 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025 NEUTRAL CITATION R/CR.MA/11338/2025 CAV JUDGMENT DATED: 14/08/2025 undefined and does not require any interference at the end of this Court.
20. In the result, the present application, being devoid of any merit, is hereby rejected. However, it is made clear that the observations made by this Court herein above at this stage while deciding the anticipatory bail application, would not come in the way of the applicant at the time as and when if ultimately the trial court is proceeded with the trial, and at the stage of consideration of regular bail application, if preferred by the applicant. Rule is discharged.
(DIVYESH A. JOSHI,J) VAHID Page 14 of 14 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 22:07:34 IST 2025