Chandan Mevalal Mali vs State Of Gujarat
2023 Latest Caselaw 2080 Guj

     R/CR.MA/4437/2023                                ORDER DATED: 06/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 4437 of 2023

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                           CHANDAN MEVALAL MALI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. KISHAN H DAIYA(6929) for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 06/03/2023

                               ORAL ORDER

1. This successive bail application is filed under Section 439 of the Code of Criminal Procedure, 1973, in connection with the FIR being C.R.No. II-3023/2019 registered with Surat Railway Police Station, Surat City, for the offences punishable under Section 8(c), 20(c) and 29 of Narcotics Drugs and Phototropic Substance Act, 1985.

2. Facts and circumstances giving rise to file present application are that, the applicant Chandan Mevalal Mali and co- accused Jitendra @ Jitu Kantilal Vasava have been apprehended with the conscious possession of narcotics substance Ganja weighing 75.85 kgs. amounting to Rs.4,53,510/- when they being passengers Gujarat Express Train, deboarded at Kim, Surat Railway Station, Surat, the western railway police officials saw them carrying huge quantity of contraband ganja filled in different four gunny bags and/or plastic bags. On 29.09.2019, when the police officials of railway police station were on patrolling at Kim Railway Police Station, they saw the accused

R/CR.MA/4437/2023 ORDER DATED: 06/03/2023

who were deboarded from train and going towards exit gate of Kim Railway Police Station, restrained the applicants and asked about the material filled up in four plastic bags which they were carrying with them. On preliminary inquiry, it was revealed that the material found was contraband ganja. The applicant along with contraband ganja were taken to railway outpost police chowky and after following procedure, the quantity of ganja weighing 75.85 kgs. Seized and recovered from the accused. 30.606 Kgs. out of total 75 Kgs ganja, was found and recovered from the applicant as he was carrying two gunny/plastic bags.

3. In the aforesaid facts, the FIR came to be registered by one Police Head Constable Ramesh Jesingbhai for the offence referred above and after completion of investigation, the chargesheet for the said offence came to be filed against the accused.

4. Bail application after filing of the chargesheet has been rejected by the Sessions Court concerned. Dissatisfied with the order, the instant application is preferred by the applicant.

5. Mr. Kishan Daiya, learned counsel for the applicant raised the following contentions :-

(i) the applicant has been falsely implicated in the alleged offence as at the relevant time, he was standing at Kim Railway Station and was supposed to reach Ahmedabad in the same train as he having a ticket from Kurla to Ahmedabad. The muddamal recovered is not belonged to the applicant and as per the prosecution case, it belonged to one co-accused Anita. It is in this connection, if chargesheet case papers are perused, nothing incriminating material like CDR or other particulars connecting the applicant with the

R/CR.MA/4437/2023 ORDER DATED: 06/03/2023

co-accused as well as his involvement in the alleged offence.

Referring to the statement of ticket checker - Salim Bag Mirza, it is submitted that, the witness TC had allotted confirm sit to the applicant and at the relevant time, he did not find any incriminating material allegedly carried by the applicant herein;

(ii) So far role of the applicant is concerned, from chargesheet case papers, no connection with the contraband ganja having been found and/or established;

(iii) the applicant is in custody since 2019 and for a considerable period of time, practically court could not proceed with the matter and therefore, detention of the accused for a indefinite period is in violation of Article 21 since there is uncertainity about the completion of the trial.

(iv) On the spot, the police officials did not have followed the mandatory provisions of NDPS Act. The samples from the seized substance must be drawn on the spot of recovery and same required to be mentioned in the recovery panchnama. In such circumstances, referring to standing order 1/88 dated 15.03.1988, it is submitted that, the recovered articles found at the platform of Kim Railway Police Station and at that place, the officials did not demonstrate the necessary procedure of taking samples, drawing panchnama etc. Admittedly, the accused had been taken to the railway outpost chowky where the procedure was being undertaken which act is in violation of standing order and law laid down by the Apex Court in various judgments.

(v) the applicant having permanent roots in the society and

R/CR.MA/4437/2023 ORDER DATED: 06/03/2023

therefore, he may release on bail by imposing appropriate conditions so that he can remain present at the trial.

In the aforesaid contentions, learned counsel for the applicant Mr. Daiya would submit that, when further custody of the applicant is not necessary and trial would not complete in near future, keeping the applicant behind bar would serve no purpose and therefore, he prays that case is made out to exercise judicial discretion.

6. Learned APP Mr. Dabhi, appearing for the State on advance copy vehemently opposed the bail application and contended that the applicant has been found in possession of commercial quantity of contraband and keeping in view the restriction imposed by Section 37 of NDPS Act, no case for grant of bail is made out. He would further submit that where prima facie case is made out for the offence which is grave in nature, the court may not enlarge the accused on bail and therefore, he prays that no case is made out to exercise discretion of this Court.

7. I have considered the rival submissions addressed before this Court.

8. The contention of the applicant is that, he has been falsely implicated in the alleged offence and no recovery had been effected from him. In this connection, on perusal of the FIR and chargesheet case papers, it prima facie establishes that after preliminary inquiry at Kim Railway Station, the police officials found that the accused have in their possession huge quantity of ganja and therefore, for proper compliance of mandatory provisions of the Act, the accused were taken to outpost chowky

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of railway police station and same has been reflected in the case papers. So, there is no violation of any statutory provisions with respect to procedure followed by the police officials. Thus, prima facie, it proves that the applicant was found with commercial quantity of contraband Ganja. So far the contention raised by the applicant with regard to false implication of the accused, there is nothing on record to suggest that he has been falsely implicated. The Hon'ble Apex Court in a judgment rendered in State of Kerala Vs. Rajesh Kumar [AIR 2020 SC 721] has reiterated the legal position as regard the limitation imposed by Section 37 of the Act and has further held that liberal approach in the matters of bail in an offence under the NDPS Act is uncalled for. It is the contention of the applicant that, he is in custody since 2019 and trial is still not commenced and therefore, he may be enlarged on bail. The Hon'ble Supreme court in a very recent judgment rendered in case of Narcotics Control Bureau Vs. Mohit Agarwal [Cri. Appeal Nos.1001-1002/2022], while deciding an appeal filed by NCB challenging grant of bail to an accused by the High Court cancelled the bail while reiterating the view that provisions of Section 37 of the Act have to be strictly complied with and that mere a length of custody cannot be a consideration for grant of bail. Paragraphs 14 and 18 of the said judgment reads as follows.

"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

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person is unlikely to commit any offence while on bail.

18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe Criminal Appeal Nos. ............ of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021 that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act."

9. For the foregoing reasons and considering the peculiar facts and circumstances of the case, more particularly the role attributed to the applicant herein and evidence in support of charge, there are reasonable grounds for believing that the applicant has committed the offence and applicant has not been able to satisfy the Court that there are reasonable grounds to believe that he is not guilty of such an offence and therefore, no case for grant of bail exists, more particularly having regard to the provisions of Section 37 (1)(b)(ii) of NDPS Act.

10. No ground, is therefore, found to grant bail to the applicant. The application is therefore rejected. Nothing in this order shall tantamount to the findings of the merits of the case.

(ILESH J. VORA,J) SUCHIT