Gujarat High Court
Mohammad Ikram Ali Khatri S/O ... vs State Of Gujarat on 7 November, 2023
Bench: M. R. Mengdey
NEUTRAL CITATION
R/CR.MA/15045/2023 ORDER DATED: 07/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 15045 of 2023
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MOHAMMAD IKRAM ALI KHATRI S/O MOHAMMAD HASAN KHATRI
Versus
STATE OF GUJARAT
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Appearance:
MR. N.D.NANAVATY, SENIOR ADVOCATE with MR YASH N
NANAVATY(5626) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 2
MR. L.B.DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 07/11/2023
ORAL ORDER
1. The Applicant has filed this Application under Section 439 of the Code
of Criminal Procedure for enlarging the Applicant on Regular Bail in
connection with File Ni. NCB/AZU/CR-18/2022 dated 31.3.2023 numbered as
NDPS Special Case No.2/2023 before the Special Court, Jamnagar for the
offence punishable under Sections 8(c), 22(c), 27A, 29, 31 and 54(a) of The
Narcotics Drugs and Psychotropic Substances Act, 1985.
2. Heard learned Senior Advocate Mr. N.D.Nanavaty appearing with
leanred Advocate Mr. Yash Nanavaty for the Applicant and learned APP Mr.
L.B.Dabhi for the Respondent - State.
3. Learned Senior Advocate Mr. N.D.Nanavaty has submitted that in the
present offence the investigation is over and charge sheet is filed. The only
material available against the present Applicant is in the form of the statement
of the co-accused recorded during the course of investigation. Except this, no
other material, whatsoever, is available on record connecting the present
NEUTRAL CITATION
R/CR.MA/15045/2023 ORDER DATED: 07/11/2023
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Applicant for the offence in question. He submitted that in view of the
judgment of the Hon'ble Apex Court in the the case of Tofan Singh v. State of
Tamil Nadu, reported in 2020 SCC Online SC 882, the statement recorded
under Section 67 of the NDPS Act is not admissible in evidence. Thus, only
material available against the present Applicant on record is not admissible in
evidence. He has further submitted that no contraband substance has been
seized from the conscious possession of the present Applicant. He therefore
submitted to enlarge the Applicant on bail subject to suitable conditions.
4. The Application is opposed by learned APP Mr. L.B.Dabhi for the
Respondent State. He submitted that looking to the nature and gravity of the
offence the Application may be dismissed.
5. Learned Advocate Mr. Kartic V. Pandya appearing on behalf of
Respondent No.2 has also opposed the Application inter alia contending that
the quantity of the contraband substance Mephedrone, which is involved in the
present case, is of 10.320 Kg, which is a commercial quantity, and therefore,
the rigors of Section 37 of the NDPS Act would be applicable in the facts of the
present case. He therefore submitted to dismiss the present Application.
6. Heard learned Advocates for the parties and perused the record.
7. As per the case of prosecution, a secret information was received by the
Intelligence Officer, NCB Ahmedabad that one person namely Bhaskar S/o
Bharatbhai has stored Mephedrone (MD) Powder in a room at the second floor
of his factory situated at Jamnagar. On the basis of the said information, the
NCB had raided the premises on 3.10.2022, where, the person named in the
secret information, was found present in the premises and, the contraband
substance of Mephedrone (MD) Powder worth 10.320 Kg was also seized.
During the course of investigation, it was revealed that the said Contraband
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R/CR.MA/15045/2023 ORDER DATED: 07/11/2023
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substance was supplied by the present Applicant to one Shokatmiyan
Mohammad Hussain Chaudhary and thereafter it had reached the premises of
the said coaccused person. From the record it also appears that the present
Applicant was in constant touch and contact with the other co-accused persons
through mobile phones. The Investigating Agency has also recovered the call
data records of the present Applicant along with the other co-accused, which
indicates that the present Applicant and the other coaccused persons were in
constant touch with each other prior to the delivery of the substance to the
premises from which it was seized and thereafter also.
8. It is true that; as per law laid down by the Hon'ble Apex Court in case of
Tofan Singh (supra) the confessional statement recorded under Section 67 of
the NDPS Act is inadmissible in trial. However, in the present case, it is not
only the confessional statement made under Section 67 of the NDPS Act,
which is on record against the present Applicant. As discussed herein above,
the other material in the form of the call data records between the present
Applicant and the other co-accused are also collected during the course of
investigation, which indicate that the present Applicant and the other co-
accused persons were in touch with one another through mobile phones prior
and after the delivery of the contraband substance at the place in question. The
record also indicates that the present Applicant is also booked by NCB in two
other offences of similar nature.
9. The quantity of the contraband substance involved in the present offence
is 10.320 Kg which is a commercial quantity and in view of Section 37 of the
NDPS Act, if this Court is to exercise discretion in favour of the present
Applicant, it has to come to the conclusion that the Applicant has not
committed the offence in question.
10. In view of the aforesaid material available on record against the present
Applicant, it cannot be said that the present Applicant has not committed the
NEUTRAL CITATION
R/CR.MA/15045/2023 ORDER DATED: 07/11/2023
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offence in question. Considering the aforesaid aspects and the material
available on record, the Application is devoid of any merit and is hereby
dismsissed. Rule is discaharged.
(M. R. MENGDEY,J)
J.N.W / 15
