Rahul S. K. S/O Rizol S. K vs Narcotic Control Bureau
2023 Latest Caselaw 6177 Guj

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     R/CR.MA/5915/2023                                 ORDER DATED: 23/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 5915 of 2023

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                          RAHUL S. K. S/O RIZOL S. K.
                                   Versus
                         NARCOTIC CONTROL BUREAU
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Appearance:
MOHIT P PATHAK(7344) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 1
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                               Date : 23/08/2023

                                ORAL ORDER

1. The present application is filed under Section 439

of the Code of Criminal Procedure, 1973 seeking regular bail

in connection with offence registered vide File No.F.No.NCB/

AZU/CR-11/2022 with the Narcotic Control Bureau, Zonal

Unit, Ahmedabad for the offences under sections 8(c), 22(c),

27(A), 28, 29 and 30 of the Narcotics Drugs and

Psychotropic Substances Act, 1985 against 8 persons

including the present applicant.

2. It is the case of the prosecution that they have

received specific information on 26.5.2022 that four persons

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named in the complaint are involved in manufacturing the

huge quantity of the narcotic drug i.e. Alprazolam without

any license which is a prohibited substance under the NDPS

Act at Parashvnath Dye Chem, Plot C1B, 2409, GIDC

Phase-3, Vapi, Valsad (Gujarat). It is the case of the

prosecution that the preventive team conducted the search

of the factory and machines, boiler, dryer, jerry-cans /

barrels containing chemicals used in the manufacture of

Alprazolam were found during the search and thereafter,

68.226 kg of the psychotropic substance Alprazolam /

Nordazepam / other psychotropic substance was seized

after following the due procedure under the NDPS Act. It is

alleged that the applicant is one of the members of the

cartel and he came to Vapi to provide support to other

members at the factory. It is alleged that the applicant

accused helped Satyanna Pothuganthi, Srinivas Karre and

Mohammad Sahajat Shaikh in transportation of Chemicals

required from godown to factory. It is alleged that the

applicant accused arranged food, water and other necessary

things to Satyanna Pothuganthi, Srinivas Karre and

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Mohammad Sahajat Shaikh so that they did not have to go

out of the factory and they can carry on their activities

clandestinely. It is alleged that the applicant accused was

arrested from the factory premises wherein the NCB has

recovered seized Nordazepam from the applicant accused.

3. Heard learned advocate Mr.Mohit Pathak for the

applicant, learned advocate Mr.Kartik Pandya for the

respondent No.1 - Narcotic Control Bureau and learned APP

Mr.Tirthraj Pandya for the respondent no.2 - State.

4. Learned advocate Mr.Mohit Pathak has submitted

that in view of the quantity of contraband, the offence as

alleged undoubtedly falls within the rigors of section 37 of

the NDPS Act, however, it is settled proposition of law that

while considering an application for bail with reference to

Section 37 of the NDPS Act, the Court is not called upon to

record a finding of not guilty. Mr.Pathak has further

submitted that at this stage, it is neither necessary nor

desirable to weigh the evidence meticulously to arrive at a

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positive finding as to whether or not the accused has

committed an offence under the NDPS Act but what is to be

seen is whether there is reasonable ground for believing that

the accused is not guilty of the offences he is charged with

and further that he is not likely to commit an offence under

the said Act while on bail. Mr.Pathak has further submitted

that the satisfaction of the Court about the existence of the

said twin conditions is for a limited purpose and is confined

to the question of releasing the accused on bail.

4.1 Mr.Pathak has further submitted that the case

against the applicant herein is built on the confessional

statement of co-accused recorded under section 67 of the

NDPS Act and the said statements are inadmissible and

therefore no reliance ought to be placed on the same.

Mr.Pathak has further submitted that two limbs of

circumstances are cited by the prosecution so as to cite the

involvement in the commission of alleged offence by the

applicant accused and the role attributed to the applicant is

of providing food to the persons working at the factory and

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transport of chemicals to the factory from the godown.

4.2 Mr.Pathak has further submitted that the

complaint in connection with the alleged offence is already

filed on 02.12.2022 and therefore there is no possibility of

tempering with the evidence of the prosecution and the trial

would take considerable time and therefore keeping the

applicant in judicial custody would amount to travesty of

justice and therefore, this Court may be pleased to enlarge

the applicant on regular bail.

5. Learned advocate Mr.Kartik Pandya appearing for

the respondent No.1 has vehemently opposed the bail

application and submitted that there is sufficient material

against the present applicant to deny him bail as the

present applicant is one of the members of the drug cartel

and deeply indulged in conspiracy to manufacture the

prohibited contraband substance under the NDPS Act.

Mr.Pandya has further submitted that the offence

committed by the accused is against society and prejudicial

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to the interest of general public, therefore, if the accused is

enlarged on bail, there is every probability/likelihood of his

tampering with the prosecution evidence, hence, the

accused deserves to be kept behind the bar and bail is not

required to be granted, moreover, the enlarging of accused

on bail at this stage would encourage the offenders of the

like nature. Mr.Pandya has further submitted that as it is

not a simple case of drug trafficking but this is a case of

large scale manufacturing of contraband and therefore,

considering the totality of facts and circumstances as well

as the materials available against the present applicant, he

may not be enlarged on bail. Learned advocate Mr.Kartik

Pandya, further relied upon the judgment of Hon'ble

Supreme Court in the case of Naroctics Control Bureau

Vs. Mohit Aggarwal, reported in 2022 SCC Online SC

891 and submitted that in subsequent judgment the

Hon'ble Supreme Court had an occasion to consider the

case of Toofan Singh Vs State of Tamilnadu, reported in

(2021) 4 SCC 1 as well as provision of Section 67 of the

NDPS Act and the Hon'ble Supreme Court after considering

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the ratio laid down in judgment of Toofan Singh (supra) has

taken view, that the aforesaid aspects can be considered at

the stage of trial. By relying upon the aforesaid judgment,

he submitted that the Hon'ble Supreme Court in the

aforesaid judgment had taken a view, that if the statement

given by the co-accused under Section 67 of the NDPS Act is

corroborated by some material, in that case, even if there is

a statement of co-accused on the basis of overall materials

placed on record against the accused person and

considering the fact that contraband recovered is of

commercial quantity, the rigors of Section 37 of the NDPS

Act would apply and therefore the present applicant may

not be enlarged on bail.

6. At this stage, it would be fruitful to make

reference to the decision of the Honourable Apex Court in

regard to grant or refusal of bail under the provisions of

Section 37 of NDPS Act. In the case of Union of India Vs

Niyazuddin Sk and another, reported in 2017 (4) Crimes

384 (SC), the Hon'ble Apex Court while setting aside the

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order of the High Court granting bail to the accused indicted

for possessing commercial quantity of contraband without

discussing the two mandatory conditions appearing in

section 37of the Act viz; (1) the court must be satisfied that

there are reasonable grounds for believing that the person is

not guilty of such offence & (2) the person is not likely to

commit any offence on bail, while rejecting bail, in paras 7,

8 & 9 of the judgment held as under:-

(7) Section 37 of NDPS Act contains

special provisions with regard to the grant of bail

in respect of certain offences enumerated under

the said section. They are:-

(1) In the case of person accused of an offence

punishable under section 19. (2) Under section

24. (3) Under Section 27A and (4) Of offences

involving commercial quantity. The accusation in

the present case is with regard to the fourth

factor namely, commercial quantity. Be that as it

may, once the Public Prosecutor opposes the

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application for bail to a person accused of the

enumerated offences under section 37 of the

NDPS Act, in case, the court proposes to grant

bail to such person, two conditions are to be

mandatorily satisfied in addition to the normal

requirements under the provisions of the Cr. PC

or any other enactment, (1) the court must be

satisfied that there is reasonable ground for

believing that the person is not guilty of such

offence; (2) that person is not likely to commit any

offence while on bail.

(8) There is no such consideration with

regard to the mandatory requirements, while

releasing the respondents on bail.

(9) Hence, we are stratified that the matter

needs to be considered afresh by the High Court.

Impugned order is set aside and the matter is

remitted to the High Court for fresh

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consideration. It will be open to the parties to

take all available contentious to the High Court.

7. In the case of Satpal Singh Vs The State of

Punjab, reported in 2018 (5) Supreme 705, the Hon'ble

Apex Court while rejecting bail to an accused indicted for

the allegations of possession of commercial quantity of

contraband in Head note C & para 15 of the judgment held

as under:-

(c) Narcotic Drugs and Psychotropic Substances

Act, 1985 - Section 37, 22 and 29 - Instantly

quantity of drug commercial - Order could not be

passed by High Court u/s 438 or 439, Cr.PC

without reference to section 37 and without

entering a finding on the required level of

satisfaction - Impugned order set aside.

15. Be that as it may, the order dated 21.09.2017

passed by the High Court does not show that

there is any reference to Section 37 of the NDPS

Act. The quantity is reportedly commercial. In the

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facts and circumstances of the case, the High

Court could not have and should not have passed

the order under Sections 438 or 439 Cr.P.C.

without reference to Section 37 of the NDPS Act

and without entering finding on the required level

of satisfaction in case the Court was otherwise

inclined to grant the bail. Such a satisfaction

having not being entered, the order dated

21.09.2017 is only to be set aside and we do so.

8. Therefore, the decisions rendered by the Hon'ble

Apex Court in Niyazuddin Sk's case & Satpal Singh's Case

(supra) make the legal proposition abundantly clear and

also settles the legal controversy at rest that in case of the

accusations against accused regarding possession of

commercial quantity of the contraband, the court has to

render findings regarding, (i) the court must be satisfied

that there are reasonable grounds for believing that the

person is not guilty of such offence & (ii) the person is not

likely to commit any offence on bail, and if these conditions

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are not satisfied by the court, the accused is not entitled

bail.

9. It is apt to mention here that the Hon'ble Apex

Court in the case of N.C.B Vs Krishan Lal, reported in AIR

1991 S.C 588 held that unless conditions prescribed under

section 37 of the NDPS Act are not fulfilled, the court has no

discretion to relax these conditions in order to give the

benefit of bail to an accused.

10. In the present case, the prosecution has

recovered contraband from the applicant accused and the

prosecution has shown involvement of the applicant

accused as the applicant accused was present at the factory

premises when the raid was carried out and recovered the

contraband seized from the applicant accused. It is apt to

reiterate here that the contraband seized from the factory

premises is of commercial in nature weighing 8.400 kgs

Alprazolam.

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11. At the same time, this Court cannot lose sight of

the fact that the menace of the crime of smuggling of

contraband drugs is on increase and therefore, the

perpetrators of the crime who are destroying the society and

younger generations rendering them incapacitated by falling

prey to drug abuse must be dealt with iron hands. The

crime alleged against applicant accused is against the

society and by his criminal activities, he is spoiling the

young generation of the country. Such types of offences are

to be dealt with severity and with heavy hands. Showing

leniency in such matters would be really a case of misplaced

sympathy. The criminal act of the applicant/accused

operating in a manner as one of the members of drug cartel

manufacturing commercial quantity of contraband

Alprazolam is destructive, and is aimed to destroy the social

fiber of the country, therefore, curtailment of his liberty is

reasonable. The granting of bail to the applicant accused

would lead to the danger of the course of justice being

thwarted. This Court, therefore, holds that this is a fittest

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case where discretion cannot be exercised in favour of the

applicant accused.

12. In view of above discussion, this Court does not

see any reason to enlarge present applicant on bail and

therefore, present application deserves to be dismissed and

the same is dismissed. Accordingly, Rule is discharged.

(S. V. PINTO,J) H.M. PATHAN