Gujarat High Court
Kuldip @ Bhondu Shivnarayan Patel vs State Of Gujarat on 6 December, 2022
Bench: Samir J. Dave
R/CR.MA/22237/2022 ORDER DATED: 06/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22237 of 2022
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KULDIP @ BHONDU SHIVNARAYAN PATEL
Versus
STATE OF GUJARAT
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Appearance:
KRUSHALKUMAR D SHELADIYA(8017) for the Applicant(s) No. 1
MS MH BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 06/12/2022
ORAL ORDER
1. Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent-State.
2. This bail application is filed under Section 439 of the
Code of Criminal Procedure for regular bail in connection with
an offence being CR NO. 11210060212278 of 2021 registered
with Varachha Police Station District Surat for the offence
punishable under Sections 8(c), 20(B)iiC, 29 of the NDPS Act.
3. Brief facts of the present case are as under:
3.1 That, the complainant has received a secret information
that Kuldip Patel (present applicant) and Chandan Bind were
having illegal contraband under the Pramukh swami Bridge at
Katargam and thus, during the raid, police had collected total
weight of 44.330 kg ganja from both the accused wherein
R/CR.MA/22237/2022 ORDER DATED: 06/12/2022
present applicant was found with 11.660 kg ganja and that is
how the impugned complaint has been lodged against the
accused persons. Pursuant to the above-mentioned crime, the
applicant has been arrested by the police on 29.06.2021 and
he was presented before the concerned magistrate on
30.06.2021 since then he is in judicial custody at Lajpore
Central Jail at Surat as an under-trial prisoner. Thereafter, a
charge sheet has been presented before the trial court and the
case is registered as Special NDPS Case No. 49 of 2021 in the
trial court. Thereafter, the applicant filled his first regular bail
application after the Charge Sheet in the Hon'ble Sessions
Court, Surat vide CRMA-S No. 7343 of 2022 but the same was
rejected. Hence, applicant has filed present bail application
before this Court.
4. Heard learned advocate for the applicant as well as
learned APP for the respondent-State.
5. Learned advocate for the applicant has submitted that the
applicant is maintaining his family by working as a labourer
and financial circumstances of the family are very week. The
Applicant is innocent and has been falsely arraigned as an
accused in the present offence. That, the applicant has not any
kind of role in the said crime. The applicant has been arrested
by the police as a suspect based on false information, As the
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applicant has been falsely accused in the said crime and the
applicant Is innocent of the said crime. The Applicant is a
permanent resident of the address mentioned in the cause title
and has deep roots in the society. This is the first case of the
applicant and he has not any criminal history. The applicant is
not a habitual criminal. That, trial is likely to take a significant
time to conclude and if discretion under Section 439 of the
Cr.P.C. is not exercised then it would be subjecting the
applicant to pre-trial conviction and that is not the abrogation
of the fundamental right under Article 21 and therefore, the
applicant may be released on regular bail. Ultimately, it was
submitted by learned advocate for the applicant to allow
present application.
6. Learned Additional Public Prosecutor appearing on behalf
of the respondent-State has opposed grant of regular bail
looking to the nature and gravity of the offence. That, the
applicant is involved in the serious offence as alleged and
therefore, no leniency view would be taken in favour of the
applicant while releasing him on bail. That, there is a prima
facie case against the present applicant and applicant is
directly involved in commission of offence. A muddamal
commercial quantity of 44 kilo 330 grams of prohibited
narcotic substance Ganja was recovered from the accused
R/CR.MA/22237/2022 ORDER DATED: 06/12/2022
persons. If the applicant is released on bail he shall not remain
present during the trial. That muddamal being a commercial
quantity and thus, provision of Section 37 of the NDPS Act is
applicable. Ultimately, it was submitted by learned APP for the
respondent-State to reject present application.
7. Having heard learned advocate for the applicant as
well as learned APP for the respondent-State and considering
the averments made in the present application, it appears that
in connection with the impugned complaint, the applicant was
arrested and thereafter, charge sheet has been filed against the
applicant and later on, the applicant has approached the
learned trial court with a request to release him on bail but the
said request was rejected.
8. Hon‟ble Supreme Court of India in the case of Stateble Supreme Court of India in the case of State
of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21] has held that a
vague allegation that the accused may tamper with the
evidence or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at large
would intimidate the witnesses or if there is material to show
that he will use his liberty to subvert justice or tamper with the
evidence, then bail will be refused.
9. Of course this court is aware with the rule of bail and
various principles laid down by various Hon'ble High Courts
R/CR.MA/22237/2022 ORDER DATED: 06/12/2022
and Hon'ble Supreme Court. But, while considering the prayer
of the applicant regarding grant of bail, the court should have
to consider the gravity of offence as well as social impact of the
offence. From the observation made by learned trial court
while rejecting the bail application, it appears that learned trial
court has observed that the muddamal of commercial quantity
is involved in the matter and there appears prima facie case
against the applicant. Prohibited muddamal has been
confiscated in the present case. There is prima facie case and
substantial evidence against the applicant and charge sheet has
been filed against the applicant accused.
10. It is pertinent to note that the Apex Court in the case of
Union of India Vs. Ram Samujh (Supra), laid down the
following principle, wherein the Apex Court has observed in
Para No.8 of the said judgment that:
"To Check the menace of dangerous drugs flooding
the market, parliament has provided that the
persons accused of the offences under the NDPS Act
should not be released on bail during the trial
unless the mandatory conditions provided in section
37 (1)(b) are satisfied."
11. For the foregoing reasons and from the facts and
circumstances of the case, it appears that the prosecution
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has clearly established the prima facie case against the
present applicant and thus, this Court is not inclined to
exercise the powers vested under section 439 of Code of
Criminal Procedure Code for releasing the present
applicant on bail.
12. Thus, while considering the principles laid down by the
Hon'ble Supreme Court as well as considering the conclusion
arrived at by the learned trial Court while rejecting the bail
application, it appears that the learned trial court has not
committed any error while rejecting the bail application of the
applicant because as per prosecution case, the applicant has
played a vital role in the offence and thus, considering the
gravity of offence, this court deems it not fit to accept the
prayer of the applicant and accordingly, present application
stands rejected.
Rule stands discharged.
(SAMIR J. DAVE,J)
K. S. DARJI
