Gujarat High Court
Mustak Sarafatakhan Pathan vs State Of Gujarat on 21 September, 2022
Bench: Samir J. Dave
R/CR.MA/6135/2022 ORDER DATED: 21/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 6135 of 2022
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MUSTAK SARAFATAKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR HEMANT MAKWANA(3622) for the Applicant(s) No. 1
MR L. B. DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 21/09/2022
ORAL ORDER
1. This application is filed under Section 439 of the Code
of Criminal Procedure for regular bail in connection
with F.I.R. registered as C.R. No.11191011210096 of
2022 with DCP Police Station, District Ahmedabad for
the offences punishable under Sections 8(c), 22(c), and
29 of the Narcotic Drugs Psychotropic Substances Act,
1985.
2. Learned advocate Mr. Hemant Makwana for the
applicant submits that the applicant is not named in
the complaint and only on the basis of co-accused
person, the applicant was falsely implicated in the
alleged offence. He submits that the applicant has not
found in conscious possession of the alleged contraband
and on the contrary, the contraband was found in the
conscious possession of the co-accused person. He
further submits that as the charge-sheet is filed and
R/CR.MA/6135/2022 ORDER DATED: 21/09/2022
investigation is now concluded and therefore, there is
no likelihood to tamper and hamper with the
prosecution witnesses. He further submits that the
applicant was nowhere found to be selling the illegal
contraband mephedrone and the contraband muddamal
was neither found from the direction possession nor of
the premises of the applicant. He therefore submits that
considering the present application, the applicant may
be enlarged on regular bail by imposing suitable
conditions.
3. Learned APP L. B. Dabhi appearing for Respondent
No.1-State submits that the applicant accused is
involved in very serious crime and he does not deserve
the bail that there is all likelihood that the presence of
accused may not be secured and the applicant-accused
shall continue such activity and likely to tamper with
the evidence. He further submits that the contraband
article was found from joint conscious possession of
accused and co-accused. He further submits that upon
investigation, the quantity of 70 grams of mephoedrone
was recovered. He further submits that considering the
ratio laid down by the Apex Court, it is very much clear
that accused dealing in Narcotics Drugs and who is
facing such a serious charges, may not be released on
bail even for a day during the pendency of trial. There
might be strong possibility that he may jump the bail
R/CR.MA/6135/2022 ORDER DATED: 21/09/2022
which resulted into in-completion of the trial case.
4. This Court has considered the following facts:
1. Notification S.O. No..375 (E) dated 05.02.2015,
published in the Gazette of India, issued by the
Department of Revenue Ministry of Finance,
Central Government under the provisions of NDPS
Act, the quantity seized in the present case i.e. 70
grams of Mephedrone is commercial quantity.
2. The quantity in the present case is above
commercial quantity.
3. The punishment prescribed may extend upto 20
years and fine up to Rs.1,00,000/-.
4. Rigor of Section 37 of the NDPS Act is applicable.
5. Considering the submissions made by learned advocate
Mr. Hemant Makwana for the applicant, learned APP
Mr. L. B. Dabhi for the Respondent-State as well as the
police papers, it appears that prima facie prosecution
has established the case against the present applicant.
It appears that there are no reasonable grounds for
believing that the present applicant is not guilty of the
alleged offence and that the present applicant is not
guilty of the alleged offence and that he is not likely to
commit any offence while on bail. It appears that the
Investigating Officer has collected the call details of all
R/CR.MA/6135/2022 ORDER DATED: 21/09/2022
the accused and the applicant accused was in constant
touch with accused Yakub Palasra amd Mohammad
Sadik alias Sajju Pathan who had been caught with
stuff and the present applicant-accused had talked with
them for 422 times and 107 times respectively. It also
appears that an amount of Rs.74,500/- came to be
deposited in the bank account of the applicant-accused
on 10.08.2021 and the raid was conducted on
11.08.2021. Therefore, considering the ratio laid down
by Apex Court, it is very much clear that accused
dealing in Narcotics Drugs and who is facing such a
serious charges may not be released on bail even for a
day during the pendency of trail. There might be strong
possibility that he may jump the bail which resulted
into in-completion of the trial of the case.
6. It is pertinent to note that the Apex Court in the case of
Union of India Vs. Ram Samujh and Anrs., 1999 SCC
(Cri.) 1522, 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."
R/CR.MA/6135/2022 ORDER DATED: 21/09/2022
7. For the foregoing reasons and from the facts and
circumstances of the case, it appears that the
prosecution 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.
8. Accordingly, present application stands rejected. Rule is
discharged.
(SAMIR J. DAVE,J)
MEHUL B. TUVAR
