Mahesh Mahendrakumar Bhura vs State Of Gujarat
2022 Latest Caselaw 10330 Guj

      R/CR.MA/5597/2022                              ORDER DATED: 23/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 5597 of 2022

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                          MAHESH MAHENDRAKUMAR BHURA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR IA SYED ASSISTED BY MR AFTABHUSEN ANSARI(5320) for the
Applicant(s) No. 1
MR LB DABHI APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                 Date : 23/12/2022

                                  ORAL ORDER

[1] By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - original accused has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R No. 11210030220048 of 2022 before Mahidharpura Police Station, District: Surat City for the offences under Sections 20(b)(ii)(B), 29 etc of the Narcotic Dtugs and Psychotropic Substances Act' 1985 (hereinafter be referred to as "the NDPS Act").

[2] Heard Mr.Syed, learned senior advocate assisted by Mr.Ansari, learned advocate for the applicant and Mr.Dabhi, learned Additional Public Prosecutor for the respondent - State.

[3] Mr.Syed, learned senior advocate for the applicant submits that the applicant is innocent and has not committed any offence

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as alleged and not connected in any manner whatsoever with the alleged commission of offence. He submits that the applicant has been arraigned as an accused on the basis of the statement of the co-accused. He submits that the applicant had given money of Rs.40,000/- to accused no.1 as he was in need of money. He also submits that no any contraband or illegal substances were recovered from the applicant and the same was recovered from accused no.1. He further submits that the applicant is 21 years of age and is a MBA student and the statements of the co- accused, who are directly involved in the offence, who are similarly situated to the present applicant, have been made witnesses and they are not named as accused in the FIR. He submits that there is no direct evidence of payment of cash by the present applicant to the other accused/witnesses i.e. Neel Anilbhai Shah and Akshay. He submits that the contraband article was not found in the possession of the applicant and he had no knowledge of the same or contraband in the possession of the co-accused. He submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary and besides the applicant will be available during the course of investigation and will not flee away from the justice. He submits that in view of the above, the applicant may be enlarged on anticipatory bail by imposing suitable conditions.

[4] Mr.Dabhi, learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail. Learned APP has submitted that the applicant

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has involved in the alleged offence and considering the nature and gravity of the offence, the applicant may not be released on bail and the present application may be rejected.

[5] This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi) reported in AIR 2020 SC

831.

[6] In the case of Sushila Aggarwal (supra) reported in AIR 2020 SC 831, the Hon'ble Supreme Court has held and observed in paragraph no.91 as under:-

"This court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:

(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565 when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

(2) It may be advisable for the court, which is approached with an application under Section 438,

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depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

(3) Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

(4) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

(5) Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

(6) An order of anticipatory bail should not be blanket in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect

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of a future incident that involves commission of an offence.

(7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.

(8) The observations in Sibbia regarding limited custody or deemed custody to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya.

(9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, noncooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.

(10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.

(11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc vs Ramprasad Vishwanath Gupta & Anr, (2011) 6 SCC 189; Jai Prakash Singh (supra) State through C.B.I. vs. Amarmani Tripathi, (2005) 8 SCC 21 ). This does not amount to cancellation in terms of Section 439 (2), Cr. PC.

(12) The observations in Siddharam Satlingappa Mhetre v.

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State of Maharashtra & Ors, 2011 (1) SCC 694 (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996 (1) SCC 667) and subsequent decisions (including K.L. Verma v. State & Anr, 1998 (9) SCC 348; Sunita Devi v. State of Bihar & Anr, 2005 (1) SCC 608; Adri Dharan Das v. State of West Bengal, 2005 (4) SCC 303; Nirmal Jeet Kaur v. State of M.P. & Anr, 2004 (7) SCC 558; HDFC Bank Limited v. J.J. Mannan, 2010 (1) SCC 679; Satpal Singh v. the State of Punjab, 2018 SCC Online (SC 415 and Naresh Kumar Yadav v Ravindra Kumar, 2008 (1) SCC 632) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.

[7] Having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is not inclined to grant anticipatory bail to the applicant. It appears that the applicant is involved in the alleged offence under the provisions of the NDPS Act and he has asked to purchase the contraband article and for that, he has paid Rs.50,000/- to one Akshay Shankarlal Panara and the amount sent to the original accused, who purchased the contraband articles. It appears that without any pass/permit, the applicant has illegally sold the contraband article and there is also evidence to that effect and the investigation is going on. Prima facie, it appears that the nature of allegations are such for which detailed investigation and custodial interrogation is required.

[8] Considering the aforesaid facts and circumstances of the case, I am of the opinion that this is not a fit case to exercise

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discretion to enlarge the applicant on bail and hence, the same deserves to be rejected. The application stands rejected. Rule is discharged. Interim relief granted earlier stands vacated forthwith.

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL