Vishal Kumar S/O Jitendra Kumar ... vs State Of Gujarat
2023 Latest Caselaw 141 Guj

      R/CR.MA/15285/2022                            ORDER DATED: 06/01/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 15285 of 2022

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                  VISHAL KUMAR S/O JITENDRA KUMAR YADAV
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR YASH N NANAVATY(5626) for the Applicant(s) No. 1
MR HS SONI, APP for the Respondent(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 06/01/2023

                                ORAL ORDER

1. The present successive application is filed under

Section 439 of the Code of Criminal Procedure, 1973, for regular

bail in connection NDPS File No.NCB /AZU/CR-07/2017 for offence

under Section 8(c), 21(c), 23(c), 25 read with Section 29, 32B

(E&F) and Section 60 of the NDPS Act.

2. Learned Advocate appearing on behalf of the applicant

submits that considering the nature of the offence, the applicant

may be enlarged on regular bail by imposing suitable conditions. It

is submitted that the applicant is a young man aged 24 years and is

in jail since 03.08.2017.

2.1 It is submitted that the applicant is booked as accused

only on the basis of suspicion and reckless allegations. It is

R/CR.MA/15285/2022 ORDER DATED: 06/01/2023

submitted that the applicant has no connection with the narcotic

substance. It is submitted that the applicant was not employed as a

crew member and was not found in ship. It is submitted that there

is not an iota of material to indicate that the applicant was aware

about any conspiracy of other accused persons about drug in

question.

2.2 It is submitted that the applicant is not found in

conscious possession of the contraband and has been charge

sheeted on the basis of Section 29 of the NDPS Act which is with

regard to punishment for abatement and criminal conspiracy.

2.3 It is submitted that trial is also not substantially

progressed since framing of charges and no prosecution witnesses

are examined so far. It is submitted that the applicant has no

antecedents.

2.4 It is submitted that co-accused Sujit Tiwari is granted

bail by the Apex Court by order dated 28.01.2020 in Criminal

Appeal No.1897 of 2019 and Suleman Sidhdique Bhadela and Saud

Aslam Patel are granted bail by this Court by order dated

28.02.2019 in Criminal Misc.Application No.18195 of 2018. It is

submitted that case of the present applicant is on higher pedestal

than these co-accused who are granted regular bail.

3. On the other hand, learned Advocate for the

R/CR.MA/15285/2022 ORDER DATED: 06/01/2023

Department and learned APP for the respondent-State submitted

have opposed grant of regular bail looking to the nature and

gravity of the offence.

3.1 It is submitted that the applicant is charged for dealing

in commercial quantity of narcotic substance. It is submitted that

earlier bail application of the applicant was not entertained and

permitted to be withdrawn and since then there is no change in

circumstances. It is submitted that the applicant cannot claim

parity with the co-accused who are enlarged on regular bail as

their roles are quite different than the role played by the applicant

herein.

4. Having heard learned Advocates for the parties and

having perused documents on record, it appears the present

application is filed in view of the liberty reserved under order dated

11.02.2021 in Criminal Misc.Application No.18773 of 2020,

whereby applicant was permitted to withdraw the application with

a liberty to file the same again if the trial does not progress

satisfactorily within a period of one year.

5. It appears that the offence has taken place, where the

ship had sailed from Porbandar harbour at 1130 hrs on 28 th July

2017 based on intelligence input for interception of suspicious

vessel carrying Narcotics. At about 1725 hrs on 28th July 2017, the

R/CR.MA/15285/2022 ORDER DATED: 06/01/2023

ship was directed by Coast Guard Regional Headquarters (North

West) to proceed for interception of suspicious vessel MV Hennry.

The suspicion had arose out of intelligence inputs from Intelligence

Agencies shared with Coast Guard. The ship shaped course in

direction 165 at the speed of 15 knots (28 kmph) towards datum

and intercepted the suspicious vessel in position 20 58.19 N 069

13.47 E (206 degrees from Porbandar Lt at a distance of 46

nautical miles /85 km) by 0030 hrs in wee hours of 29 th July 2017.

The vessel had its nevigational lights switched on and was not

transmitting on Automatic Identification System (AIS). The ship

shadowed her till morning hours by maintaining her in radar

contact. At 1235 hrs on 29 th July 2017, the ship lowered Gemini

boat in position 20 40.35 N 070 16.85 E (193 degrees from Veraval

Lt at distance of 14 nautical miles /26 kms) and boarding party

embarked onboard MV Hennry. The boarding party obtained

following details from Master of MV Hennry:-

              (i)       Name of vessel-MV Hennry
              (ii)      Flag of the vessel-Panama
              (iii)     International Maritime Organization NO.(IMO)-8119766
              (iv)      Maritime    Mobile   Service    Identification    No.    (MMSI)-
              370938000
              (v)       Last Port of Call-Abu Dhabi (no documents provided)
              (vi)      Next Port of Call-Bhavnagar (no documents provided)
              (vii)     Master Name-Mr.Suprit Tiwari
              (viii)    No. of Crew-08 (Including Master-All Indian Nationals)
              (ix)      Cargo-Nil







      R/CR.MA/15285/2022                            ORDER DATED: 06/01/2023

6. The investigation by the ship's boarding party was

undertaken and it was observed that the master and crew was not

in possession of any licence, permit and documents pertaining to

departure from last port of call i.e. Abu Dhahi, U.A.E. and entry in

next port of call i.e. Bhavnagar for scrap as claimed by Master.

The master and the crew were interrogated and search for

suspected items was pursued by the boarding party. However, the

master denied presence of any contraband substances onboard.

Hence, based on the INT input, inconclusive statement of master,

non-availability of documents and inclement sea conditions, and the

vessel headed for Porbandar for substantial Investigation /search.

The investigation and search by the boarding party continued

during the passage to Porbandar. The vessel in company of ship

entered Porbandar on 30th July 2017. On arrival at Porbandar

inner harbour, the master of the vessel was isolated and quizzed

separately by the Coast Guard investigation team. The master on

interrogation surrendered and confessed to availability of Narcotics

onboard. The master physically identified the locations where the

narcotics was stored. The locations were thereafter rummaged

(Railing were broken and tanks were emptied) by Coast Guard

personnel and 1526 packets of approx 1445 kgs of narcotics was

recovered from (i) two cavities modified in the two tanks on both

sides at stern of the vessel and (ii) bollards and railings on both

sides of weather deck. The cavities and railings were specifically

R/CR.MA/15285/2022 ORDER DATED: 06/01/2023

fabricated for concealing narcotics. The narcotic was packed and

sealed into water proof bricks. The packets were tied with ropes

and a chain was formulated for easy stowing and quick recovery.

The packets were then concealed into railings and cavities. The

end of the railings were welded with top lid metal plates and were

sealed. The structure was thereafter painted for camouflaging.

Few samples from recovered narcotics were tested onboard with

the help of Narcotics Detection Kit and the test results were

positive for Heroin, a narcotic substance.

7. It also appears that the applicant was present in the

vessel in question from which commercial quantity of narcotic drug

was seized. Moreover, the present applicant has voluntarily

admitted in his statement under Section 67 that he was constant

touch with other co-accused persons, who were in the process of

selling narcotic drug (Heroin). The CDRs also reveal the fact about

the present applicant being in constant touch with other co-

accused persons, the details of which are as under:-

Sr.     Mobile No.         Used by   CRD analysis report
No.
1.      +91-9897215944 Vishal        Spoken      to   9768437860     (Irfan) and
                                     971569633590 (Suprit-2).       ILD calls to
                                     00989018677370 (Irfan), 0096895262145
                                     (Dubai). Number active up to 18.07.2017
                                     (Vishal in statement said mobile lost)
2.      +91-9789435606 Vishal        The SDR of number is Vijay, who is friend of

Vishal. Vishal in his statements said that his mobile got list therefore he started using Vijay's number. Actual user of this number w.e.f. 18.07.2017 is Vishal. Vijay also

R/CR.MA/15285/2022 ORDER DATED: 06/01/2023

confirmed this. Spoke to 7666612876 (Suleman-1), 008821621280227 (Suprit-1), 9804412393 (Sujit), 9768437860 (Irfan), 8097199304 (Saud-1).

                                     Spoken      to   9768437860     (Irfan) and
                                     971569633590 (Suprit-2).       ILD calls to
                                     00989018677370 (Irfan), 0096895262145
                                     (Dubai). Number active up to 18.07.2017
                                     (Vishal in statement said mobile lost)


7.1              The time-line of call details is as under:-


Sr. Date                   Event
No.
1.      06.07.2017         Suprit called to Vishal
2.      06.07.2017         Vishal immediately called to Irfan
3.      06.07.2017         Irfan spoke to Suprit
4.      09.07.2017         Irfan called to Suleman
5.      16.07.2017         Irfan called to Saud
6.      16.07.2017         Sujit spoke with Vishal on 16.07.2017 on instructions
                           of Suprit
7.      17.07.2017         Sujit spoke with Irfan on instructions of Suprit on
                           17.07.2017
8.      18.07.2017         As Vishal lost mobile on 18.07.2017, he borrowed

another mobile belonging to his friend Vijay. He spoke to Suleman, Sujit and Irfan

8. Additional documents in the form of forensic details of

mobile are also submitted to establish case against the applicant.

Considering these details, it is evident that the present applicant

was having knowledge, and was also involved in conspiracy with

other co-accused and was talking about taking delivery of

consignment and loading of consignment. The evidence collected

corroborates the statement recorded under Section 67 of the Act

R/CR.MA/15285/2022 ORDER DATED: 06/01/2023

and it is clearly coming out that the applicant was involved in the

offence.

9. Insofar as co-accused Suleman Sidhdique Bhadela and

Saud Aslam Patel, who are granted regular bail by this Court, are

concerned, their role is quite different than the present applicant.

In fact, those co-accused had made attempts to inform the

authorities about arrival of vessel containing the contraband. The

role is other co-accused-Sujit Tiwari is also quite different than the

role of the present applicant as in his case, except of few WhatsApp

messages, there is very little evidence against him and he might

not be aware about the entire conspiracy.

10. The quantity involved of narcotic is 1445 kgs., which is

a huge commercial quantity, thereby attracting rigours of Section

37 of the Act. From the facts of this case, the Court is unable to

conclude that the applicant is not involved in any way with the

offence.

11. Moreover, it also appears that due to filing of discharge

applications by some of the accused persons, the trial could not

progress as was expected.

12. At this stage, it would be relevant to refer to a

judgment of the Apex Court in case of Narcotics Control Bureau

Vs. Mohit Aggarwal in Criminal Appeal No.1001-1002 of 2022

R/CR.MA/15285/2022 ORDER DATED: 06/01/2023

dated 19.07.2022, wherein the Apex Court has observed as

under:-

"16. Coming back to the facts of the instant case, the learned Single Judge of the High Court cannot be faulted for holding that the appellant- NCB could not have relied on the confessional statements of the respondent and the other co-accused recorded under Section 67 of the NDPS Act in the light of law laid down by a Three Judges Bench of this Court in Tofan Singh (supra), wherein as per the majority decision, a confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act. Therefore, the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside. However, this was not the only material that the appellant- NCB had relied on to oppose the bail application filed by the respondent. The appellant-NCB had specifically stated that it was the disclosures made by the respondent that had led the NCB team to arrive at and raid the godown of the co- accused, Promod Jaipuria which resulted in the recovery of a large haul of different psychotropic substances in the form of tablets, injections and syrups. Counsel for the appellant-NCB had also pointed out that it was the respondent who had disclosed the address and location of the co-accused, Promod Jaipuria who was arrested later on and the CDR details of the mobile phones of all co- accused including the respondent herein showed that they were in touch with each other.

17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from

R/CR.MA/15285/2022 ORDER DATED: 06/01/2023

the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage."

13. It would be appropriate to give due regards to the

submissions made by the learned APP bringing of notice of the

Court the grim situation that is prevailing, especially in the State of

Gujarat where offences under the provision of NDPS Act dealing

with the drugs like 'Ganja', Charas', 'Mephadrone' and

'Amphetamine' are on huge increase and the action is taken by the

Government Agency to deter the use from indulging into the

activities related to drugs which include the drug dealing, drug

peddling and drug consuming.

14. In view of the aforesaid, no case is made out for

exercising discretion in favour of the applicant. The application

deserves to be and is hereby dismissed. Rule is discharged.

(A.Y. KOGJE, J) SHITOLE