Atulbhai Sureshbhai Patil vs State Of Gujarat
2023 Latest Caselaw 6017 Guj

                                                                                NEUTRAL CITATION




   R/CR.MA/11915/2023                              ORDER DATED: 18/08/2023

                                                                                 undefined




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 11915 of 2023
==========================================================
                        ATULBHAI SURESHBHAI PATIL
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR DIPESH D SONI(9996) for the Applicant(s) No. 1
MS. SHRUTI PATHAK, APP for the Respondent(s) No. 1
==========================================================

  CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 18/08/2023

                               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 CR No.II-11210004211758 of 2021 with Amroli Police

Station, District-Surat for the offence punishable under Sections 8(C),

20(B)(II)(c) and 29 of the Narcotic Drugs and Psychotropic Substances

Act, 1985.

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 has submitted that the case of the

applicant deserves consideration on the ground of parity. It is

submitted that the co-accused, who are having almost identical role,

have been enlarged on regular bail.

                                                                                   NEUTRAL CITATION




   R/CR.MA/11915/2023                                ORDER DATED: 18/08/2023

                                                                                   undefined

4. Learned Advocate for the applicant has drawn attention of this Court

to the order dated 17-01-2022 passed in Criminal Misc. Application

No.20780 of 2021 and order dated 13-10-2021 passed in Criminal

Misc. Application No.15529 of 2021.

5. Learned Advocate for the applicant has submitted that the applicant is

the only driver of the vehicle, in which contraband article was found

and in the vehicle, two other accused persons were also sitting on the

back seat and therefore, the applicant cannot be considered to be in

conscious possession of the contraband article.

6. Learned Advocate for the applicant has further submitted that the

applicant is not involved in the offence, as the applicant has not

received any monetary benefit with regard to the investigation about

the rented car. The applicant has not paid any rent nor any amount is

transferred to and from the Bank account of the applicant and it is

only Bank account of the co-accused, which has been utilized.

7. Learned Advocate for the applicant has submitted that there is no

evidence also with regard to the Call Detail Record, as only the Call

Detail Record of the applicant is with co-accused; Jainish and Nikita

on whose behalf, the applicant was driving the car.

8. Learned Advocate for the applicant has relied upon the decision of the

Apex Court in case of Mohd Muslim @ Hussain Versus State (NCT of

Delhi) passed in Criminal Appeal No(S). of 2023 [@ Special Leave Petition (CRL.) NO(S). 915 of 2023] dated March 28, 2023 to submit that the trial is prolonged and therefore, even if it is the case under

N.D.P.S. Act attracting the provision of Section-37 of the N.D.P.S. Act,

right to speedy trial shall prevail and in case of prolonged trial, the

applicant is entitled to grant of bail.

                                                                                  NEUTRAL CITATION




   R/CR.MA/11915/2023                               ORDER DATED: 18/08/2023

                                                                                  undefined

9. On the other hand, the learned Additional Public Prosecutor appearing

for the respondent-State has opposed grant of regular bail looking to

the nature and gravity of the offence. Learned APP also submitted that

contraband involved is 'Charas' weighing 4.684 Kgs. and therefore,

clearly attracting the provision of Section-37 of the N.D.P.S. Act and

therefore, the applicant cannot be enlarged on regular bail.

10. It is submitted that after the investigation, charge-sheet is filed and

from the papers of the charge-sheet, sufficient evidence has come on

record against the present applicant especially, the applicant was in

the very car, in which contraband article 'Charas' was found.

11. Learned APP has further submitted that the applicant may not rely

upon the ground of parity, as in case of the co-accused, who have

been enlarged, the Court has observed the roles of those accused

persons, which cannot be compared with the present applicant.

12. Having heard learned Advocates for the parties and having perused

documents on record, it appears that F.I.R. came to be registered on

02-06-2021, when the Police intercepted the vehicle (four wheel

vehicle), which was driven by the present applicant and occupied by

the accused Nos.2 and 3 mentioned in the F.I.R. Upon interception

and having undertaken the procedure required under the provision of

the N.D.P.S. Act, black bag containing contraband article 'Charas'

weighing 4.684 Kgs. was seized. The quantity thus of the contraband

is more than commercial quantity and therefore, clearly attracts the

provision of Section-37 of the N.D.P.S. Act.

13. The Court has examined the evidence in the form of running

panchnama executed upon interception of the vehicle on 01-06-2021,

wherein it is recorded in front of the panch-witnesses that the

NEUTRAL CITATION

R/CR.MA/11915/2023 ORDER DATED: 18/08/2023

undefined

applicant was present in the vehicle with other accused persons

carrying bag containing contraband article.

14. The Court has taken into consideration the statement of witness

recorded on 06-06-2021; Hiteshbhai Chandulal Kokhra, whose vehicle

was used for the purpose of offence and in his statement, he has

stated that on 28-05-2021, accused persons, which included the

present applicant and two other co-accused occupying the car and had

come to his office and taken the vehicle in question on rent.

Thereafter, this car was not returned for long period and even upon

inquiry made by this witness for return of the car, he was not able to

get back the car and thereafter, he came to know that it is his

vehicle, which was involved in the present offence, which was being

driven by the applicant and occupied by the co-accused.

15. In view of the aforesaid, apparently the present applicant was from

the beginning with the co-accused persons, when they hired the car

and till time, that car was intercepted and was found with contraband

article. Therefore, there is prima facie evidence against the applicant

in this regard. The Court has taken into consideration the role

attributed to the other co-accused persons, who have been enlarged on

bail, wherein this Court has recorded that co-accused; Hardikbhai

Ishwarbhai Patel was implicated in the offence on the basis of the

statement of co-accused, whereas the co-accused; Jignesh @ Montu

Kiritbhai Patel has been implicated only on the basis of Call Detail

Record with other co-accused persons. Role attributed to the present

applicant being distinctly different, no parity can be drawn. In so far

as the judgment relied upon in case of Mohd Muslim @ Hussain

(supra), the Court finds that the applicant was apprehended on 02-06-

NEUTRAL CITATION

R/CR.MA/11915/2023 ORDER DATED: 18/08/2023

undefined

2021 and is in custody since then. At the same time, it is observed

that, the trial has already commenced and panch-witnesses are being

examined. At this stage, therefore, the Court is not of the view that

the trial is prolonged.

16. In the aforesaid case, the Apex Court has also taken into consideration

the facts of the case, which indicated that the appellant before the

Apex Court was arrested on the basis of statement of co-accused.

Therefore, the evidence against the appellant before the Apex Court

was in the form of statement of co-accused as well as confessional

statement of the appellant therein (Para-17).

17. In view of the aforesaid facts and circumstances, 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 is dismissed. Rule is discharged.

(A.Y. KOGJE, J) PARESH SOMPURA