Sartanbhai Navalbhai Patel vs State Of Gujarat
2023 Latest Caselaw 8023 Guj

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     R/CR.MA/12635/2023                                ORDER DATED: 02/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                 CHARGESHEET) NO. 12635 of 2023

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                          SARTANBHAI NAVALBHAI PATEL
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR R D CHAUHAN(6865) for the Applicant(s) No. 1
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                Date : 02/11/2023

                                 ORAL ORDER

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with C.R. No. 11207048230256 of 2023 registered with the Morvah Police Station, District Godhra for the offence punishable under Sections 20(a)(i) of the NDPS Act.

2. Learned advocate Mr. R.D. Chauhan appearing on behalf of the applicant has submitted that so called incident has occurred on 11.04.2023 and on the same day the FIR was registered. The applicant was arrested on 17.04.2023 and since then he is in judicial custody. It is also submitted that the investigation is already completed and the present application is filed after submission of the charge-sheet by the concerned Investigating Officer before the competent Court. It is alleged against the applicant that he has provided Ganja seeds to the main accused, who has cultivated Ganja plants in the field and

NEUTRAL CITATION

R/CR.MA/12635/2023 ORDER DATED: 02/11/2023

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caught red handed by the members of the raiding party. It is further submitted that on the basis of the statement made by the co-accused the applicant has been arraigned as an accused. Learned advocate for the applicant has heavily put reliance on the judgment of the Hon'ble Apex Court in the case of Hasubhai Kamabhai Thakor Vs. State of Gujarat reported in 2023 Live Law (SC) 354, and submitted that it is held by the Hon'ble Apex Court that as per the provision of Section 2(iii)(b) of the NDPS Act, Ganja seeds would not be found in the category of banned contraband. Considering the factual aspect, the present applicant may be enlarged on regular bail by imposing suitable terms and conditions.

3. Learned APP appearing on behalf of the respondent-State has opposed the present bail application. It is submitted that the role of the present applicant is clearly spelt out from the body of the compilation of the charge sheet. It is also submitted that contraband articles were recovered by the members of the raiding party is a commercial quantity. Considering the role attributed by the present applicant, the present application may not be considered.

4. Learned advocates appearing on behalf of the respective parties do not press for further reasoned order.

5. I have perused the police papers as well as documents produced by the applicant along with the memo of the application. It is found out from the record that the applicant is jail since 17.04.2023. The investigation is already completed and the present application is filed after submission of the

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R/CR.MA/12635/2023 ORDER DATED: 02/11/2023

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charge-sheet by the concerned Investigating Officer before the competent Court. It is also found out from the record that on the basis of the statement made by the co-accused the applicant has been arraigned as an accused. I have also gone through the judgment of the Hon'ble Apex Court whereupon reliance is being placed by the learned advocate for the applicant and found from the operative part of the order, wherein it is held by the Hon'ble Apex Court that as per the definition of Ganja in Section 2(iii)(b) of the NDPS Act, it is not a banned contraband.

6. At this juncture, I would like to reproduce Para-3 of the judgment of Hon'ble Apex Court, which reads as under :

"The materials on record show that the petitioner has supplied Ganja seed for cultivation and as per the definition of Ganja in Section 2(iii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), it is not a banned contraband. There are no specific allegation that the Ganja seeds were supplied by the petitioner to the other persons with an intention to receive back the grown Ganja after cultivation."

7. It is also found out from the record that except bare statement of co-accused no any overt act is attributed to the present applicant and no articles have been recovered or discovered from the present applicant. Considering the role attributed by the present applicant at the time of commission offence, I am inclined to exercise the discretion in favour of the applicant.

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R/CR.MA/12635/2023 ORDER DATED: 02/11/2023

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8. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40 as well as in case of Satender Kumar Antil v. Central Bureau of Investigation & Anr. reported in (2022)10 SCC 51.

9. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

10. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with C.R. No. 11207048230256 of 2023 registered with the Morvah Police Station, District Godhra, on executing a personal bond of Rs. 15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injuries to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

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[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. to 2:00 p.m.;

[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

11. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

12. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail.

13. The present application stands allowed accordingly. Direct service is permitted.

(DIVYESH A. JOSHI,J) SALIM/