Mohammad Umar Mohammad Siddik ... vs State Of Gujarat
2023 Latest Caselaw 8024 Guj

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     R/CR.MA/10263/2023                                      ORDER DATED: 02/11/2023

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     R/CRIMINAL MISC.APPLICATION NO. 10263 of 2023
         (FOR REGULAR BAIL - AFTER CHARGESHEET)
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          MOHAMMAD UMAR MOHAMMAD SIDDIK SHAIKH
                         Versus
                    STATE OF GUJARAT
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Appearance:
KULDEEP J MEHTA(8571) for the Applicant(s) No. 1
MR ABHAYKUMAR P SHAH(3093) for the Applicant(s) No. 1
MS MITHALI MEHTA 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 the FIR being C.R. No.11210015220121/2022 registered with the DCB Police Station, Surat City for the offence punishable under Sections 8(C), 22(C) and 29 of the NDPS Act.

2. Heard learned advocate, Mr. Abhaykumar Shah for the applicant and learned APP Ms. Maithali Mehta for the respondent - State of Gujarat.

3. Learned advocate for the applicant submitted that the applicant is arrested in connection with the aforesaid FIR on 21.09.2022 and since then, he is in judicial custody and now the investigation is completed and the present application is preferred after submission of the chargesheet. It is submitted that the entire case of the prosecution

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hinges upon the confessional statement of co- accused made during the course of investigation and the applicant is arraigned as accused on the basis of the statement made by the co-accused, except that, there is no other material connecting the applicant with the commission of crime. It is submitted that there is no recovery of the muddamal from the applicant - accused.

4. Learned advocate has put reliance upon following decisions, (1) the judgment in case of Bhagirathsinh Judeja Vs. State of Gujarat, reported in AIR 1984 SC 372;

(2) the judgment in case of Bharat Chaudhary Vs. Union of India, delivered by the Hon'ble Supreme Court in Special Leave to Appeal (Cri) No.5703/2021;

(3) the judgment in case of State by (NCB) Bengaluru Vs. Pallulabid Ahmad Amrmutta & Anr, delivered by the Hon'ble Supreme Court in Special Leave to Appeal (Cri) No.242/2022;

5. Referring to the aforesaid decisions of the Hon'ble Supreme Court, learned advocate empathetically submitted that the ratio enunciated by the Hon'ble Apex Court in the aforesaid decisions clearly goes on to show that at the time of trial, CDR as well as the documents pertaining to the WhatsApp chats cannot be considered as significant piece of evidence against the accused as those documents can be considered at the time

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of fag end of trial at the time of appreciation of evidence and said evidence is considered as weak piece of evidence. It is, therefore, urged that it is urged that the present application may be allowed.

6. On the other hand, learned APP for the respondent-

State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that there are ample material and evidence available on record, which connect the present applicant in the aforesaid offence. It is submitted that the role of the present applicant is spelt-out from the papers of the chargesheet. It is submitted that in the present case, contraband articles i.e. Mephedrone Drugs of 60.73 Grams were recovered, which is commercial quantity and, hence, the provision of Section 37 of the NDPS Act is applicable. It is submitted that during the course of investigation, the concerned IO has collected CDR, from which, it is found that the applicant was in constant touch with other co- accused at the time of commission of crime. It is submitted that the IO has also recovered the WhatsApp chat made by the applicant - accused with other co-accused and the wordings employed in the said chats clearly goes on to show that the present applicant - accused has actively participated in the commission of crime. It is further submitted that the present applicant has also received payment through online mode and the

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said transaction is also found out from the compilation of the chargesheet papers and thus the cumulative effect of all the documents collected by the IO clearly goes on to show that the present applicant - accused has actively participated in the commission of crime and he is the person, who has sold the contraband articles to the accused persons, who have been caught red handed by the members of the raiding party after receiving the amount of consideration. It is submitted that the trial has already commenced and if the applicant is released on bail, there is apprehension on the part of the prosecution that the applicant will tamper with the evidence, which affects the trial and there is possibility that the applicant will not be available at the time of trial and will flee away. It is, therefore, urged that the present application may not be entertained considering the role played by the applicant - accused.

7. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. It is found out from the record that the applicant is arraigned as accused in the commission of crime on the basis of the statement made by the co-accused but there are enough material and evidence available on record in the form of chargesheet papers, which connect

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him with the alleged commission of crime. In the present case, contraband articles ie.. Mephedrone Drugs of 60.73 Grams have been recovered, which is commercial quantity and, hence, the rigors fo the provision of Section 37 of the NDPS Act would come into play. Over and above, there are CDR as also WhatsApp chats collected by the IO during the course of investigation, which connect the applicant - accused with the alleged commission of crime. It is also found out from the papers of the chargesheet that the applicant - accused used to supply the contraband articles to other accused for its circulation with an intention to earn profit from carrying out such illegal activity and in turn, the other accused used to circulate it at different places and while carrying out such activities, the other accused were apprehended by the members of the raiding party and during their interrogation, the name of the applicant is revealed, which is supported by the CDR and WhatsApp chats. Further, the trial has already commenced and the examination of witnesses is going on.

8. It is found out from the papers of the chargesheet that the IO has also recovered the WhatsApp chat between the applicant - accused and other co- accused and from the said chats, it clearly goes on to show the active participation of the applicant - accused in the commission of crime. Over and above that, the IO has also collected

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documents with regard to the payment received by the applicant through online mode, which clearly goes on to show that the applicant is the person, who has sold the contraband articles to other accused persons, who have been caught red handed by the members of the raiding party and thus, it also shows the active participation of the applicant - accused in the commission of crime.

9. It is found out from the record that during the course of investigation, the name of the present applicant has been revealed, therefore, the IO had gone to the residence of the applicant for his arrest and at that point of time during search, approximately 26-27 grams Mephedrone Drugs was found from his residence, which was seized under panchnama and thus on the strength of the said discovery, another criminal complaint has been registered against the present applicant - accused and he is in jail. It is required to be noted that the quantity of the contraband articles seized from the residence of the applicant - accused is intermediate quantity but it seems that the present applicant is in habit of keeping this kind of contraband articles with him for the purpose of selling it through his associates and in connection with the said offence registered against him, he is in jail at Maharashtra. Therefore there is strong case against the applicant - accused made out by the prosecution during the course of investigation.

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10. I have also gone through the ratio decided and principle enunciated by the Hon'ble Supreme Court in the decisions upon which reliance has been put by learned advocate for the applicant and I am of the opinion that the facts of those cases are quite dissimilar to the facts of present case and are not applicable to the facts of the present case.

11. Therefore considering the gravity of offence and role attributed to the present applicant, I am of the opinion that this is not a fit case, wherein discretion can be exercise in favour of the present applicant - accused. Hence, this application is rejected. Rule is discharged.

(DIVYESH A. JOSHI, J.) Gautam