Mohammed Abdul Aziz Khan @ Abdul ... vs Union Of India
2022 Latest Caselaw 9009 Guj

     R/CR.MA/11291/2022                                    ORDER DATED: 12/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/CRIMINAL MISC.APPLICATION NO. 11291 of 2022
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              MOHAMMED ABDUL AZIZ KHAN @ ABDUL AZIZ KHAN PATHAN
                                            Versus
                                       UNION OF INDIA
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Appearance:
AADITYA D BHATT(8580) for the Applicant(s) No. 1
CHANDNI S JOSHI(9490) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 1
MR MANAN MEHTA, APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
                  Date : 12/10/2022
                   ORAL ORDER

1. Heard learned advocate Mr. Aaditya D. Bhatt for the

applicant, learned advocate Mr. Kartik V. Pandya for

respondent No.1-Narcotic Control Bureau and learned APP

Mr. Manan Mehta for the respondent-State.

2. By way of this application under Section 439 of Code

of Criminal Procedure, the applicant has prayed for his

release on regular bail in connection with C.R.

No.NCB/AZU/CR-02/2021 registered with Narcotic Control

Bureau, Ahmedabad on 10.02.2021.

3. It is the case of the prosecution that the present

applicant was traveling from Jammu in a train carrying a

R/CR.MA/11291/2022 ORDER DATED: 12/10/2022

contraband charas which was to be delivered to the

accused Nos.1 and 3 on based on that information NCB set

up a raid and caught the present applicant and seized the

plastic bag containing the contraband charas. The quantity

of charas was 2.143 kilograms which is commercial

quantity as any quantity beyond one kilogram is

considered to be a commercial quantity and that is how

the present applicant was arrested on 10.02.2021.

4. Learned advocate Mr. Aaditya Bhatt made submissions

mainly on two grounds 1st by stating that though the

commercial quantity which is recovered by the NCB the

rigors of Section 34 would not apply in the present case

for the reasons that mandatory provisions of Section 42

has not been complied with by the NCB while carrying out

the contraband. He submitted that though the raid trap

was held at public place considering the fact that at the

time when the contraband was seized, co-accused Nos.1

R/CR.MA/11291/2022 ORDER DATED: 12/10/2022

and 3 were on a private vehicle. The said fact is required

to be considered at the time of considering the application

of the present applicant as the exception of Section 43

would not be applicable if the vehicle is a private vehicle.

5. Learned advocate Mr. Aaditya Bhatt relied upon the

judgment in the case of Boota Singh v. State of Haryana

reported in AIR 2021 SC 1913, wherein, the Hon'ble

Supreme Court in para-12 observed as under:-

"12. The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to Accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression "public place" as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa MANU/SC/0704/2016 : (2016) 11 SCC 687, the relevant provision would not be Section 43 of the NDPS Act but the case would come Under Section 42 of the NDPS Act."

6. Learned advocate Mr. Bhatt further submitted that

though he is aware about the fact that the co-accused

application for bail is rejected by this Court vide order

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dated 21.09.2022 passed in Criminal Misc. Application

No.4140 of 2022 on the medical ground also the case of

the present applicant is required to be considered as the

age of present applicant is 65 years and he is a retired

army man and suffering from multiple illness for which he

is not being provided proper treatment by the jail

authorities, and therefore, on medical ground also the case

of the present applicant is required to be considered.

7. Further in support of submissions in respect of fact

that the prosecution has not followed the mandatory

provisions of Section 42. Learned advocate Mr. Aaditya

Bhatt relied upon one judgment by Panjab and Haryana

High Court dated 14.06.2022 in CRM-M-25498 of 2021 in

case of Pankaj V. State of Punjab, and more particularly,

by relying upon para-12 of the aforesaid judgment,

submitted that in case if the mandatory provisions of

Section 42 are not complied with by the prosecution in

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that case the applicant is entitled to be released on bail.

Learned advocate Mr. Bhatt also submitted that there are

no past antecedents as far as the present applicant is

concerned. By making the aforesaid submissions, he prayed

for enlarging the present applicant on bail. Except the

aforesaid submissions no other submissions were made by

learned advocate Mr. Bhatt nor any decisions were relied

upon by him.

8. Learned advocate Mr. Kartik Pandya appearing for

respondent - NCB vehemently opposed the bail application

and submitted that the present applicant was the person

who brought the commercial quantity of contraband from

Jammu to Vadodara and at the time when the aforesaid

contraband was delivered to accused No.1 and 3, he was

arrested in respect of a trap made by the NCB. He further

submitted that the trap was led outside the railway station

which is a public place and the vehicle used by the

R/CR.MA/11291/2022 ORDER DATED: 12/10/2022

accused Nos.1 and 3 was a scooter, and therefore, reliance

placed by the learned advocate for the applicant on

judgment in case of Boota Singh v. State of Haryana

would not be applicable in the present case. Learned

advocate Mr. Kartik Pandya further submitted that

considering the commercial quantity of the contraband

recovered from the accused persons the rigors of Section

37 would be applicable in the present case. Learned

advocate Mr. Kartik Pandya further submitted that at the

time when the present applicant was arrested he was

found with conscious possession of the contraband which

was handed over to accused Nos.1 and 3 who on receipt

of the contraband used the two wheeler to ran away from

the place.

9. Learned advocate Mr. Kartik Pandya relied upon the

judgment of the Hon'ble Supreme Court in case of Union

of India through Narcotics Control Bureau v. Mohammad

R/CR.MA/11291/2022 ORDER DATED: 12/10/2022

Navaj and submitted that in para-28 of the said

judgment, the Hon'ble Supreme Court has considered the

judgment in case of Boota Singh (supra) relied upon by the

learned advocate for the applicant and held that whether

the compliance of procedure laid down under Section 42

of NDPS Act or not is a question of fact and by making

aforesaid submission he submitted that the case of the

present applicant in respect of non compliance about

Section 42 of the Act may not be considered at this stage

as the same is a question of fact which can be tested at

the time of trial by leading the evidence.

10. As far as the submissions of learned advocate for the

applicant in respect of medical condition of the present

applicant is concerned, both learned advocates Mr. Kartick

Pandya and learned APP Mr. Manan Mehta oppose the

application by stating that proper medical treatment is

being given by the Jail Authorities and even in case if

R/CR.MA/11291/2022 ORDER DATED: 12/10/2022

applicant's condition requires any further medical

assistance or treatment, the Jail Authorities shall take care

of the health of the present applicant and that cannot be a

ground to release the applicant on bail for an offence for

which if the present applicant is held guilty, the

punishment would be up to 20 years. Further, both

learned advocates Mr. Pandya and Mr. Mehta appearing

for the respondent submitted that considering the fact that

the contraband which was recovered from the present

applicant was of commercial quantity rigors of Section 37

also would be applicable in the present case, and

therefore, unless it is shown by the applicant that unless

the applicant satisfied the Court that there are reasonable

grounds for believing that he is not guilty of such an

offence and he is not likely to commit any offence while

on bail, he should not be released on bail.

11. I have considered the submissions made by learned

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advocates appearing for the parties and I have perused the

record which is made available by the learned advocate

for the parties. As far as the submission of learned

advocate Mr. Aaditya Bhatt about non compliance of

Section 42 is concerned, as submitted by learned advocate

Mr. Pandya, relying upon the judgment in case of Union

of India through NCB, Lakhnow v. Mohammad Navaj

Khan, the question related to compliance of Section 42 of

NDPS Act, is a question of fact and once it is held to be a

question of fact by the Hon'ble Supreme Court, the same

cannot be considered at this stage as it is a matter of

evidence which can be considered by leading the evidence

at the stage of trial, and therefore, to accept the aforesaid

contention of the learned advocate for the applicant would

be premature at this stage considering the judgment of the

Hon'ble Supreme Court in the case of Union of India v.

Mohammad Navaj Khan.

R/CR.MA/11291/2022 ORDER DATED: 12/10/2022

12. Further as far as the reliance place upon by learned

advocate for the applicant in case of Pankaj v. State of

Punjab, and more particularly, para-12 of the said

judgment is concerned, the observation made in para-12 of

the said judgment is based upon various stage about non

compliance of Section 42 of NDPS Act. However, now in

view of the latest judgment of the Hon'ble Supreme Court

in the case of Union of India v. Mohammad Navaj Khan as

the said question is now held to be a question of fact and

as observed in foregoing paragraphs, this Court does not

deem it appropriate to go into the details about the

observations made by Panjab and Haryana High Court.

13. As far as the submission of the learned advocate for

the applicant in respect of deteriorating health and medical

condition of the present applicant is concerned, the same

can be taken care of by directing the Jail Authorities to

give proper treatment to the present applicant and that

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cannot be the sole ground for enlarging the present

applicant on bail. Further, this Court has also taken into

consideration the fact that the co-accused, namely, Kalim

Mohammad Husen Kureshi, who has preferred a bail

application before this Court being Criminal Misc.

Application No.4140 of 2022 has already been dismissed

by this Court vide order dated 21.09.2022 and there is not

much difference between the role of present applicant and

the applicant whose bail application was dismissed by this

Court considering the fact that all the accused persons

were arrested by the NCB at the time when the quantity

of contraband was supplied by the present applicant to the

co-accused persons whose bail application has already been

rejected by this Court, and therefore, on that ground also

the present application is required to be dismissed and the

same is dismissed. Rule discharged. No order as to costs.

(NIRZAR S. DESAI,J) Manoj Kumar Rai