Chakrapani S/O Bhallu Gauda vs State Of Gujarat
2023 Latest Caselaw 7628 Guj

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     R/CR.MA/7034/2023                               JUDGMENT DATED: 16/10/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                   CHARGESHEET) NO. 7034 of 2023


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DIVYESH A. JOSHI                                  Sd/-
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1      Whether Reporters of Local Papers may be allowed                    No
       to see the judgment ?

2      To be referred to the Reporter or not ?                             No

3      Whether their Lordships wish to see the fair copy                   No
       of the judgment ?

4      Whether this case involves a substantial question                   No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         CHAKRAPANI S/O BHALLU GAUDA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR. SNEHANSHU TRIPATHI, LD. ADV. WITH MR. K T BELADIYA(9101) for
the Applicant(s) No. 1
MR. HARDIK SONI, LD ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                               Date : 16/10/2023

                               ORAL JUDGMENT

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.11200010221422 of

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2022 registered with the Valsad Town Police Station, Valsad of the offence punishable under Sections 8(c), 20(b)(II)(C ) and 29 of the NDPS Act.

2. Brief facts of the case are that on 27.08.2022 at about 1:30 p.m., the complainant has received the credible information that some persons procure ganja from Mumbai to Surat in one white coloured Honda Accord Car having Registration No.MH-04-DJ-0899 and traffics the same along with his associate who was sitting in the said car. Acting upon such information, the police personnel stopped the said car near N.H. No.48 and formal search of both the accused persons as well as their car was conducted, upon which, 81.260 kgs ganja was recovered from the car, which was kept in total 56 small and large parcels, in which, there were 18 large parcels and 38 small parcels. and from the 18 large parcels, total 42.56 kgs ganja was recovered and from 38 small parcels, total 38.70 kgs ganja was recovered. Out of total 56 parcels, some parcels were found from the hidden space of the dicky and some parcels were lying on the back side of the middle seat of the car. Samples were drawn, and the contraband along with the samples were seized separately. Pursuant to this, the present FIR was registered. Samples of the contraband were sent to FSL and the report received was positive. On interrogation, accused Chakrapani S/o Bhallu Gauda, i.e, the applicant herein disclosed that he was informed by one Altaf who is doing the business of Ganja in Mumbai to visit Orissa and book ganja from his friend Vijay Malik in the aforesaid car. Therefore, he along with the co-accused visited Orrissa and got the contraband Muddamal from Vijay Malik on

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24.08.2022. Thereafter, after obtaining Ganja from Orissa, the applicant along with the co-accused proceeded towards Mumbai via Vishakhapatnam, Heydrabad and Solapur. Thereafter, the said Altaf informed them to carry the contraband Ganja from Mumbai to Surat and handover the same to his person.

3. Learned counsel Mr. Snehanshu Tripathi with learned advocate Mr. K.T. Beladiya appearing for the applicant has submitted that the present applicant-accused has been falsely implicated in the present offence. Learned counsel Mr. Tripathi has further submitted that the applicant-accused is merely a driver and not the owner of the vehicle and he did not know anything about the contraband Ganja which was lying there in the car. Learned counsel Mr. Tripathi has also submitted that the contraband Ganja was not found from the conscious possession of the applicant-accused but it was found from the hidden space of the car. The applicant-accused was doing the driving work to earn livelihood for himself and for his family. It is not his permanent source of income, but he is driving the vehicle whenever somebody hires him to drive the vehicle as a driver. Learned counsel Mr. Tripathi has further submitted that prior to the arrest of the applicant-accused, he was not in touch with the person who was guiding him to take the vehicle at a particular place at point of time. Learned counsel Mr. Tripathi has also submitted that the applicant-accused has been made a scapegoat by the persons who are actually doing the business of trafficking of contraband articles. Learned counsel Mr. Triapathi has further submitted that the applicant- accused is totally an illiterate person and he does not know

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any other language except his mother tongue and, therefore, it is totally doubtful that how he could make a confession before the police that the things were in his knowledge. In what language, he could have confessed before the police when he does not know any language except his mother tongue. Learned counsel Mr. Tripathi has also submitted that the applicant-accused is a poor person doing labour work and he is the only bread earner of his family. In support of his submissions, learned counsel Mr. Tripathi has relied upon the following case laws;

i) In the case of Chand Mehra vs. State of NCT of Delhi, reported in 2023/DHC/000954;

ii) In the case of Sandeep @ Babulal Kesarwani, Criminal Misc. Bail Application No.58823 of 20233;

iii) In the case of Rabi Prakash vs. The State of Odisha, reported in 2023 LiveLaw (SC) 533;

4. In such circumstances, referred to above, learned counsel Mr. Tripathi prays that there being merit in his application, the same be allowed and the applicant-accused may be enlarged on bail.

5. On the other hand, this application has been vehemently opposed by learned APP Mr. Hardik Soni and submitted that the present applicant-accused is a habitual offender and in past also an FIR also came to be lodged against the present applicant-accused in the State of Maharashtra for the similar kind of offence. Learned APP Mr. Soni has drawn the attention

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of this Court to Page No.139 of the paper-book and submitted that the procedure as prescribed under Sections 42 and 50 of the carried out in Hindi language and, therefore, the argument canvassed by the learned counsel for the applicant as regards the language does not stand for a moment. Learned APP has further drawn the attention of this Court to the statement of an independent witness, namely, Sahil Valiyani who has specifically stated in his statement that he had sold the said car to one person, namely, Chakrapani Gauda, i.e, the present applicant herein upon payment of Rs.1,55,000/-, which clearly goes on to show that the applicant-accused is not merely a driver but he is owner of the car.

6. Learned APP Mr. Soni has submitted that so far as the judgments relied upon by the learned counsel is concerned, in Chandra Mehra (supra), in that case, the accused therein was not arrested from the spot and only his car had been utilized. The second judgment on which reliance is being place by the learned counsel in the case of Rabi Prakash (supra), in that case the applicant-accused was in jail since last more than three and a half years and that was the sole reason for granting bail to him.

7. In such circumstances, referred to above, learned APP Mr. Soni prays that there being no merit in this application the same be rejected and the applicant-accused may not be enlarged on bail.

8. I have heard the learned counsel appearing for the parties and perused the materials on record.

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9. After having given thoughtful consideration to the documents placed on record, this Court is of the opinion that this is a case where recovery of 81.260 kgs of ganja, which is commercial quantity, has been made from the accused/applicant. The definite embargo under Section 37 of the Act has to be kept in mind in cases under NDPS Act, in view of judgment of State of Madhya Pradesh v. Kajad, (2001) 7 SCC 673,which clarifies that negation of bail is the rule and granting of bail is an exception under Section 37 of NDPS Act. Twin conditions have to be satisfied before granting bail in a case of recovery of commercial quantity of narcotic substance; first being an opportunity given to the prosecutor to oppose the application for bail, and secondly, the satisfaction of the court that there is reasonable ground for believing that accused is not guilty of offences he is charged with and for the satisfaction that he will not commit any such offence while on bail.

10. In State of Kerala v. Rajesh, reported in (2020) 12 SCC 122, it was observed as under:

"18. The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non bailable. It reads thus:

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"37. Offences to be cognizable and non bailable - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are Signature Not Verified Digitally Signed Signing Date:15.11.2022 18:57:14 Neutral Citation Number 2022/DHC/004835 reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause

(b) of subsection (1) are in addition to the limitations under the Code of Criminal Procedure,1973 (2 of 1974), or any other law for the time being in force on granting of bail."

11. As observed by the Hon'ble Supreme Court in case of Union of India v. Prateek Shukla, reported in (2021) 5 SCC 430, the provisions of Section 37 of NDPS Act have to be applied strictly at the time of deciding bail application of an accused. It has also been observed by the Apex Court in case of State v. Lokesh Chadha (2021) 5 SCC 724 that the judgment of State of Kerala v. Rajesh (supra) has to be followed while deciding bail application under NDPS Act.

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12. The Apex Court in NCB v. Mohit Aggarwal, reported in 2022 SCC OnLine SC 891, while explaining the meaning of 'reasonable grounds' under Section 37(1)(b) of NDPS Act, has held as under:

"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 person is unlikely to commit any offence while on bail."

13. Based on the above precedent, the test which the High Court is required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.

14. What amount to 'conscious possession' was also considered in Dharampal Singh vs. State of Punjab, reported in (2010) 9 SCC 608, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal vs. State of

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Rajasthan, reported in (2015) 6 SCC 222, the Hon'ble Supreme Court also observed that the term 'possession' could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment or personal knowledge as to the existence of the contraband and the intention based on this knowledge.

15. As regards the contention raised by learned counsel for the applicant regarding absence of recovery of the contraband from the possession of the applicant-accused, I would like to refer to the decision in the case of Union of India vs. Rattan Mallik, reported in (2009) 2 SCC 624 wherein a two-judge Bench of the Hon'ble Supreme Court cancelled the bail of an accused and reversed the finding of the High Court by observing that as the contraband (Ganja) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the possession of the accused. The Supreme Court observed that merely making a finding on the possession of the contraband did not fulfill the parameters of Section 37(1)(b) and there was non-application of mind by the High Court.

16. In view of the aforesaid observations of the Hon'ble Supreme Court, this Court is unable to accept the argument of learned counsel appearing for the applicant that applicant is entitled to bail as per the decisions relied upon by him as referred to herein above.

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17. The present case is one where heavy quantity of contraband was recovered from the car and the applicant- accused is the owner of the said car which is evident from the materials available on record. Further during the investigation, it was also uncovered that in past also similar kind of offence was registered against the applicant-accused in the State of Maharashtra.

18. Further, the following aspects are crucial while deciding the present application of the applicant who is charged with the offence under NDPS Act, having regard to the provisions of Section 37;

a) The applicant-accused was travelling in the vehicle all the way from Orissa to Mumbai and then Mumbai to Surat with the co-accused;

b) That the applicant-accused was in constant touch with the absconding accused persons on the date of the incident;

c) The quantity of contraband found in the vehicle is of a commercial quantity;

d) The contraband was concealed in the vehicle in which the applicant was travelling with the co-accused;

e) That the applicant-accused is the owner of the offending vehicle which was purchased by him from one Sahil Valiyani, who has specifically stated in his statement that the applicant- accused had purchased the said car from him.

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f) That the present applicant-accused was also booked in one another case relating to the offence under the NDPS Act at Maharashtra.

19. For the foregoing reasons, I am of the opinion that no ground for bail is made out against the applicant-accused. Accordingly, the application stands rejected. Rule is discharged.

(DIVYESH A. JOSHI,J)

VAHID