Ajaybhai Ranjitsinh Gadhvi vs State Of Gujarat
2021 Latest Caselaw 17730 Guj

    R/CR.MA/19141/2021                                  ORDER DATED: 25/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


            R/CRIMINAL MISC.APPLICATION NO. 19141 of 2021

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                         AJAYBHAI RANJITSINH GADHVI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR AS ASTHAVADI(3698) for the Applicant(s) No. 1
MR. H.K. PATEL, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 25/11/2021

                                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 C.R. No.I­11199004211897 of 2021 with ANKLESHWAR CITY POLICE STATION, DISTRICT­BHARUCH, for the offence punishable under Sections 8(C), 20(b)(ii)B of NDPS Act.

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 submitted that the basic contention of the applicant is that the quantity of Narcotic Substance - Ganja is 2 kgs and 522 gms, which is intermediary quantity and therefore, the case of the applicant deserves consideration.

R/CR.MA/19141/2021 ORDER DATED: 25/11/2021

4. Learned Advocate for the applicant sbmitted that considering the quantity of the Narcotic Substance, the rigorus of Section­37 of the NDPS Act will not be attracted and therefore, considering the maximum punishment that can be inflicted, the case of the applicant deserves consideration. It is also submitted that mandatory provisions of Section 42, 50 and 57 of the NDPS Act are not complied with. It is submitted that the investigation is concluded and charge­sheet is filed and all the necessary evidence is collected by the Investigating Agency, further in castration of the applicant is not warranted.

5. On the other hand, the learned Additional Public Prosecutor appearing for the respondent­State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned Additional Public Prosecutor also submitted that the applicant is not only involved in storing the Narcotic substance, but is also indulging in sale of the Narcotic substance and this aspect is evident from the panchnama of the raid carried out, which indicate seizure of the an Electronic Compact Weighing Scale along with the Narcotic substance in the conscious possession of the applicant. It is submitted that even in case, the quantity is intermediary still and that Section­37 of the NDPS Act may not be attracted, automatically the applicant will not become entitle to grant of bail as Section­37 does not over right the requirement of Section­437, 439 of Cr.P.C.

6. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the FIR came to be registered wherein the applicant was found in conscious possession of Narcotic substance being Ganja (Moist Vegetative form) of 2kgs and 522 gms, which was found in the residential premises of the applicant. During the raid, the mobile phone as well as an Electronic Compact Weighing Scale was also seized. Both these aspects are indicative and supporting to the case of the prosecution that the applicant is not only in conscious possession of

R/CR.MA/19141/2021 ORDER DATED: 25/11/2021

Narcotic substance of more than small quantity, but is also indulging in sale of Narcotic substance from his residential premises.

7. Submission of learned Advocate with regards to the maximum sentence and non­attraction of Section­37 of NDPS Act, the Court is unable to accept as requirement of Section­37 of NDPS Act, is over and above the consideration, which are prescribed under Section­439 of Cr.P.C. Therefore, other parameters which are required to be considered while exercising jurisdiction under Section­439 of Cr.P.C. and prescribed by various judgments of the Hon'ble Supreme Court, will have to be applied to the facts of this case.

8. Considering the facts of the present case, what is emerging on record is that the applicant is found in conscious possession of the Narcotic substance of intermediary quantity. Moreover, prima facie, Narcotic substance was meant for clandestine sale to the consumers and such activity was being carried out from the residential premises of the applicant where the Narcotic substance was found.

9. The Court has perused the nature of evidence from the charge­sheet papers and does not find anything amiss during the course of investigation as the panchnama has been carried out in compliance with the requirement of provision of NDPS Act. The statement of witnesses, which include the statements of officials as witnesses, would indicate the prescribed procedure being followed. Moreover, neither in the pleadings nor during the course of arguments, learned Advocate is able to point out any aberration in the procedure adopted by the Investigating Agency. Therefore, merely submitting that the Investigating Agency has investigated in violation of Section­42, 50 and 57 of NDPS Act cannot be accepted. The Court has found that the Sessions Court has taken into consideration all the relevant aspects and has rightly refused to exercise discretion in favour of the applicant.

R/CR.MA/19141/2021 ORDER DATED: 25/11/2021

10. In view of the aforesaid discussion, the application does not deserve any consideration and hence, 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 deserves to and is hereby dismissed. Rule is discharged.

(A.Y. KOGJE, J) PARESH SOMPURA