Gujarat High Court
Dipak Ashok Kingar vs State Of Gujarat on 11 December, 2023
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R/CR.MA/12213/2023 ORDER DATED: 11/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 12213 of 2023
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DIPAK ASHOK KINGAR
Versus
STATE OF GUJARAT
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Appearance:
MR HASHIM QURESHI(1097) for the Applicant(s) No. 1
MR. EKRAMA H QURESHI(7000) for the Applicant(s) No. 1
MR. MANAN MEHTA, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 11/12/2023
ORAL ORDER
1. The present application is filed under Section 439 of the
Code of Criminal Procedure, 1973, for regular bail in
connection with the FIR being C.R. No.III-04 of 2022 registered
with the ATS Police Station, Ahmedabad of the offence
punishable under Sections 8(c), 21(c), 23(c) and 29 of the
NDPS Act.
2. Learned advocate Mr. Hashim Quareshi appearing for the
applicant has submitted that the so called incident has
occurred on 12.07.2022 and the first information report has
been registered on the very same day, i.e, on 12.07.2022. The
present applicant accused came to be arrested on 16.07.2022
an since then he is in jail. It is further submitted that in the
present case, the investigation has already been completed
and charge-sheet has also been filed. Learned advocate Mr.
Qureshi has also submitted that initially, the first information
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report was registered against one lady, namely, Seema Jain
and, thereafter, during the course of investigation, name of the
present applicant-accused has been revealed and he has been
arrested whereas the said Seema Jain has been shown as as
witness in the charge-sheet papers. Learned advocate Mr.
Qureshi has submitted that there is no recovery or discovery at
the instance of the applicant-accused and the present
applicant-accused has never paid visit to Mundra port from
where the consignment was seized by the members of the
ATS. It is further submitted that as per the case of the
prosecution, involvement of the applicant-accuse has come on
surface after the recording of the statement of the co-accused
by the Investigating Officer. Now, the charge-sheet has been
filed and, therefore, the Prosecuting Agency cannot rely upon
such statement. Even if they are relying upon such statement,
then also the only role which can be attributed to the
applicant-accused is that he has forwarded the details of the
license on WhatsApp to the other co-accused. Except this, no
specific role has been attributed to the present applicant-
accused in the charge-sheet. Learned advocate Mr. Qureshi
has further submitted that the present applicant-accused has
not made any phone call to the other co-accused whereas the
son of Seema Jain was in constant touch with the main accused
who is residing at Dubai and the said fact is clearly reflected
from the documents collected by the Investigating Officer
which are part and parcel of the record.
2.1 Learned advocate Mr. Qureshi has submitted that the
case of the applicant-accused is squarely covered by the
judgment of the Hon'ble Apex Court in the case of Toofan
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Singh vs. State of Tamil Nadu, reported in 2021 (4) SCC 1. It is
further submitted that the present applicant-accused was
arrested on the basis of the statement recorded under Section
67 of the NDPS Act, but the said confessional statement cannot
be used as a tool at the time of trial for the offence under the
NDPS Act. There are no past antecedents against the
applicant-accuse. Learned advocate Mr. Qureshi has also
submitted that the applicant-accused was not in contact with
the foreigners (absconding accused persons). Pet contra, the
statement of one Sahil Jain, son of Ajay Jain reflects that he is
in direct contact with the foreigner accused persons and he
was also used to make phone calls to the agents at Mundra
port and was constantly getting advise from the different
agencies as to get the container released and the said fact is
clearly found out from the sequence of events narrated by
Sahil Jain in his statement before the Investigating Officer.
Learned advocate Mr. Qureshi has further submitted that the
applicant-accused is in custody since more than seventeen
months and the contraband article was not recovered from the
conscious possession of the applicant-accused. Learned
advocate Mr. Qureshi has also submitted that the cumulative
effect of the entire compilation of the charge-sheet papers
clearly goes on to show that so far as the role of the applicant-
accused is concerned, he has received details pertaining to the
license from Seema Jain and, in turn, has forwarded the same
to the co-accused on WhatsApp. Except this, no specific role is
attributed to the present applicant-accuse. Under the
circumstances, learned advocate Mr. Qureshi prays that the
applicant may be enlarged on bail on any suitable terms and
conditions.
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3. The learned APP appearing on behalf of the respondent-
State has opposed grant of regular bail looking to the nature
and gravity of the offence. Learned APP has further submitted
that the present applicant-accused has actively participated in
the commission of crime and his specific role is spelt out from
the papers of the charge-sheet. Learned APP has further
submitted that as per the case of the prosecution, the
applicant-accused is residing behind the house of one witness
Seema Jain, against whom at the earlier point of time, first
information report was registered but during the course of
investigation, it is found out that the applicant-accused is the
main accused and he has misused his relationship with the
said witness. Learned APP Mr. Mehta has also submitted that
during the course of investigation, the Investigating Officer has
recorded the statement of the witnesses wherein specific
overact and role played by the applicant-accused in the
commission of crime is found out in a very crystal manner. It
is further submitted that the applicant-accused has gone to the
house of the witnesses and convinced them to do the business
with him as the friend of the applicant-accused is residing at
Canada who would be investing money for business purposes
and with the help of the license of the said witnesses, they will
import cloths from Dubai. The applicant-accused told them
that the entire expenditures would be borne by the friend of
the applicant-accused and every month, about eight to ten
containers would be imported from Dubati to Mundra port and
whatever profit they will earn from the said transaction, out of
which, 10% amount would be given to the license holders.
Therefore, the said witnesses agreed to do business with him
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and as a part of the said business, they had forwarded details
of license to the applicant-accused, which in turn, the
applicant-accused has forwarded to the main accused.
Thereafter, on the strength of the details provided by the
applicant-accused, consignment has come from Dubai to
Mundra port. Learned APP Mr. Mehta has also submitted that
along with the consignment, in a concealed condition, about 75
kg and 300 gms heroine was sent by the supplier and the total
value of the said contraband article is Rs.376,50,00,000/- . The
quantity of the contraband article in the present case is a huge
commercial quantity and the applicant-accused is the member
of the said conspiracy since very beginning and he has actively
participated in the commission of crime. The witnesses have
tried their level best to release the consignment from the
Custom Department for which they are required to submit a
non-hazardous certificate from the sender of the goods.
Therefore, they have made a phone call to the main accused
whose number is supplied by the applicant-accused. Not only
that, on whatapp, frequently they made a request to the main
accused to send the non-hazardous certificate with a sole
intention to release the container from the Custom
Department. The entire whatsapp chats between the applicant-
accused and the witnesses clearly goes on to show that from
the very beginning, the sender was well aware about the
criminal conspiracy to illegally infiltrate the contraband article
in India.
3.1 Learned APP Mr. Mehta has also submitted that initially
the first information report came to be lodged against one lady
but subsequently during the course of investigation, it is found
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out that she has been made instrumental by the applicant-
accused along with the other co-accused persons to bring the
contraband article from Dubai to India in an illegal manner and
in a concealed condition and the charge-sheet came to be filed
against the present applicant-accused and one Buttakhan @
Bagga Khan who is at present in Faridkot Central Jail and in
the said charge-sheet five other accused persons have been
shown as absconder accused who resides in Dubai and other
countries an two persons are from Pakistan. It is further
submitted that a sinister design was planed by the accused
persons with a mala fide intention to infiltrate the contraband
article within the Indian territory through Mundra Port. It has
also come on record that during the interregnum period, the
applicant-accused and witnesses have talked with each other
more than 76 times which is clearly found out from the Call
Data Record collected by the Investigating Officer. Learned
APP Mr. Mehta has further submitted that along with the
charge-sheet papers, the photographs of the consignment
have also been produced which clearly goes on to show that
the said contraband article was inserted in the inner part of the
barrel/pipe in such a situation that one could not easily identify
the same and on the outer side of the pipe, a fabric was
wrapped. Learned APP Mr. Mehta has submitted that the
decision in the case of Toofan Singh (supra) relied upon by the
learned advocate for the applicant would not be applicable to
the facts of the present case for the reason that the ratio laid
down in the said case was in respect of appeal against the
order of conviction solely based upon the statement of the co-
accused and the same has subsequently been considered in
the case of Union of India Through Narcotics Control Bureau,
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Lucknow vs. Md. Nawaz Khan, reported in (2021) 10 SCC 100
by the Apex Court, wherein the Supreme Court, after
considering the judgment in the case of Toofan Singh (supra),
considered that the High Court was required to consider other
crucial aspects also apart from the statement of the co-
accused at the time of considering grant of bail and which
should not be based solely on the confessional statement.
Learned APP Mr. Mehta has submitted that considering the
huge commercial quantity of contraband article, rigors of
Section 37 of the NDPS Act would come into play. Learned APP
has submitted that considering the role attributed to the
applicant-accused, this is a fit case wherein discretionary
power of this Court is not required to be exercised in favour of
the applicant-accused.
4. The rival contentions raised on behalf of both sides have
been heard and material on record has been perused.
5. After hearing arguments and going through the case
papers, this Court is of the opinion that the recovery in this
case of heroin i.e. psychotropic substance is of about 75 kg
and 300 gms which is a commercial quantity, therefore, bar of
Section 37 of NDPS Act is attracted in the present case.
However, it is averred in the memo of the application that
though a huge commercial quantity of contraband article
heroin is recovered in the present case, still looking to the
facts and circumstances of the case as well as the role
attributed to the present applicant-accused, the embargo of
Section 37 of NDPS Act should be dispensed with in favour of
the applicant-accused.
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6. As regards the law under Section 37 is concerned, it will
be apt to refer to the observations of the Hon'ble Apex Court in
Narcotics Control Bureau v. Mohit Aggarwal, reported in
2022 SCC OnLine SC 891, which read as under:
"10. The provisions of Section 37 of the NDPS Act
read as follows:
"37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the
Criminal Procedure Code, 1973 (2 of 1974) -
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
[offences under section 19 or section 24 or section
27A and also for offences involving commercial
quantity] shall be released on bail or on his own
bond unless -
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.
(2) The limitations on granting of bail specified in
clause (b) of subsection (1) are in addition to the
limitations under the Criminal Procedure Code, 1973
(2 of 1974) or any other law for the time being in
force, on granting of bail.
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14. To sum up, the expression "reasonable
grounds" used in clause (b) of Sub-Section (1) of
Section 37 would mean credible, plausible and
grounds for the Court to believe that the accused
person is not guilty of the alleged offence. For
arriving at any such conclusion, such facts and
circumstances must exist in a case that can
persuade the Court to believe that the accused
person would not have committed such an offence.
Dove-tailed with the aforesaid satisfaction is an
additional consideration that the accused person is
unlikely to commit any offence while on bail."
(Emphasis supplied)
7. The Hon'ble Supreme Court in case of State of Kerala
v. Rajesh, reported in (2020) 12 SCC 122 had observed the
following in relation to exercise of power under Section 37 of
the Act by Courts:
"20. The scheme of Section 37 reveals that the
exercise of power to grant bail is not only subject to
the limitations contained under Section 439 of the
CrPC, but is also subject to the limitation placed by
Section 37 which commences with nonobstante
clause. The operative part of the said section is in
the negative form prescribing the enlargement of
bail to any person accused of commission of an
offence under the Act, unless twin conditions are
satisfied. The first condition is that the prosecution
must be given an opportunity to oppose the
application; and the second, is that the Court must
be satisfied that there are reasonable grounds for
believing that he is not guilty of such offence. If
either of these two conditions is not satisfied, the
ban for granting bail operates.
21. The expression "reasonable grounds" means
something more than prima facie grounds. It
contemplates substantial probable causes for
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believing that the accused is not guilty of the
alleged offence. The reasonable belief contemplated
in the provision requires existence of such facts and
circumstances as are sufficient in themselves to
justify satisfaction that the accused is not guilty of
the alleged offence. In the case on hand, the High
Court seems to have completely overlooked the
underlying object of Section 37 that in addition to
the limitations provided under the CrPC, or any
other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of
bail under the NDPS Act is indeed uncalled for..."
8. In the present case, the contention of the learned counsel
for the applicant is that the only role attributed to the present
applicant-accused is that he has provided the details of import
export license of the witnesses, namely, Ashok Jain and Seema
Jain completely unaware of the conspiracy of supplying the
huge quantity of narcotic substance heroin in India through sea
shipping and he was not found in conscious possession with
the contraband substance. It is argued that the contraband
substance was seized from the Mundra port and the present
applicant accused has never paid visit to Mudra port. It is also
argued that the applicant-accused has been falsely implicated
in the present case only on the basis of the statement made by
the co-accused. The said contentions, in my opinion, do not
inspire any confidence as it prima facie appears from the
materials available on record that the present applicant-
accused has actively participated or rather has played a vital
role in hatching the conspiracy along with the other co-accused
persons some of which are foreigners to illegally import the
contraband substance heroin from Dubai to India via sea
shipping in a concealed manner which is evident from the
statements of Ajay Jain and Seema Jain whose licenses were
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being used by the applicant-accused in doing such an illegal
act. The said fact is also evident from the statements of the
other witnesses and the Call Data Records collected by the
Investigating Officer. More than a huge commercial quantity of
contraband heroin has been seized by the raiding party from
the place of offence. Even after the contraband article reached
at the Mundra port, the applicant-accused provided the
number of the foreigner accused to the witnesses for obtaining
a particular certificate required for releasing the container
from the Custom Department. During the entire transaction,
the applicant-accused and the witness Ajay Jain had talked
with each other for 76 times which is evident from the CDR
collected by the Investigating Agency. Therefore, it appears
that the present applicant-accused is actively involved in the
commission of the offence since very beginning.
9. The quantity of heroin recovered in the present case is
commercial in nature. Though the Court has to be conscious of
the right of the accused to speedy trial and personal liberty,
when the same is weighed in the weighing scale of the offence
he is alleged to have committed and its larger repercussions
on younger generation, their families and their future, the
offence committed by him against which there is a strong
suspicion has to give way to his right of personal liberty. Right
to personal liberty is subject to restrictions by the State in case
of criminal offences for the larger good of the public and their
safety. With 75 kg and 300 gms of heroin and the number of
people he supposed to supply the same can also be gauged
from the fact that he has made 76 calls to the co-accused
persons and some other persons regarding such transactions.
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The target groups of the drug supply are younger generation.
10. Though the absence of reasonable suspicion is significant
in assessing as to whether the accused will be entitled to bail
or not, the presence of reasonable and grave suspicion will
justify rejection of bail depending on the facts of each case.
The credibility of the witnesses and admissibility of evidence
cannot be gone into at this stage by this Court in face of the
material before it produced by the prosecution after
conducting extensive investigation. The gravity of the offence
is one determinative factor while deciding a bail application.
The magnitude and extent of the illicit drug trade and its
severe impact on the lives of the consumers also have to guide
the Court regarding severity of the offence.
11. What amounts to "conscious possession" was also
considered in Dharampal Singh v. State of Punjab, (2010)
9 SCC 608, where it was held that the knowledge of possession
of contraband has to be gleaned from the facts and
circumstances of a case. The standard of conscious possession
would be different in case of a public transport vehicle with
several persons as opposed to a private vehicle with a few
persons known to one another. In Mohan Lal v. State of
Rajasthan, reported in (2015) 6 SCC 222 the Hon'ble
Supreme Court also observed that the term "possession" could
mean physical possession with animus; custody over the
prohibited substances with animus; exercise of dominion and
control as a result of concealment; or personal knowledge as to
the existence of the contraband and the intention based on
this knowledge.
12. As regards the contention raised regarding absence of
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recovery of the contraband from the possession of the
applicant-accused, this Court has noticed that in Union of
India v. Rattan Mallik, (2009) 2 SCC 624, a two-judge Bench
of the Hon'ble Supreme Court cancelled the bail of an accused
and reversed the finding of the High Court, which had held that
as the contraband (heroin) was recovered from a specially
made cavity above the cabin of a truck, no contraband was
found in the 'possession' of the accused. The Court observed
that merely making a finding on the possession of the
contraband did not fulfill the parameters of Section 37(1)(b)
and there was non-application of mind by the High Court.
13. In line with the decision of the Hon'ble Supreme Court in
Rattan Mallik (supra), I am of the view that the mere ground of
absence of conscious possession of the contraband article from
the applicant-accused does not absolve the applicant of the
level of scrutiny required under Section 37(1)(b)(ii) of the NDPS
Act
14. In light of the above discussion, this Court is of the
opinion that taking in view the entire facts, circumstances and
the material placed before this Court, at this stage, no ground
for bail is made out against the present accused/applicant.
15. Accordingly, the present application stands dismissed.
Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
