Rajeev Satyaveer Singh Yadav vs Narcotic Control Bureau
2023 Latest Caselaw 6520 Guj

                                                                                            NEUTRAL CITATION




   R/CR.MA/5819/2023                                        ORDER DATED: 06/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 5819 of 2023

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                       RAJEEV SATYAVEER SINGH YADAV
                                   Versus
                         NARCOTIC CONTROL BUREAU
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Appearance:
MS MITA PANCHAL for MR MANOJ S JOSHI(2961) for the Applicant(s) No.
1
ROHANKUMAR M AMIN(8851) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 06/09/2023

                                ORAL ORDER

[1] The application under Section 439 of the Code

of Criminal Procedure, 1973 is in connection

with the offence registered vide F. No.NCB/

AZU/CR-25/2021 with NCB, Ahmedabad for the

offence under Sections 8(C), 20(b)(ii)(c) and

29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short 'NDPS Act').

The applicant came to be arrested on

15.12.2021. Prior to filing of the charge-

sheet, Criminal Misc. Application no.3082/2022

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was filed by the present applicant which came

to be withdrawn with a liberty to file a fresh

after the charge-sheet.

[2] Ms. Mita Panchal, learned advocate for Mr.

Manoj Joshi, learned advocate for the

applicant submits that the prosecution case by

the Intelligence Officer of NCB is to the

effect that they received a secret information

at around 17:00 hrs. on 14.12.2021 and as per

the information, one Tata Sumo vehicle bearing

registration no.GJ-16 BB-7294 would be

carrying huge quantity of Ganja and would be

coming on National Expressway-1, CTM Toll

Plaza, Ahmedabad between 19.00 hrs. to 21.00

hrs. Advocate Ms. Panchal submitted that

pursuant to the said information, Tata sumo

was intercepted at 20.00 hrs on 14.12.2021. As

per advocate Ms. Panchal, after receiving the

secret information to that of interception of

Tata Sumo, the NCB was having sufficient time

for the Special Officer, to call the FSL

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Officer to identify the alleged contraband

which was stated to be Ganja. Advocate Ms.

Panchal submitted that without presence of any

authorized person, the contraband was

identified as Ganja and about gross weight of

61.959 kgs. of Ganja was found in the

possession of two accused persons. Advocate

Ms. Panchal submitted that the said contraband

is alleged to have been found in bonnet of the

Tata Sumo which is highly improbable since the

alleged recovered items were 27 brown coloured

packets and 5 white coloured polythenes and in

presence of Panch, greenish coloured leaves

were found inside, which would not fall under

the definition of Ganja as described in

Section 2(iii)(b). Advocate Ms. Panchal thus

submitted that it was very much necessary for

the NCB officer to have made available the

presence of FSL officer to identify the

contraband at the place of seizure and since

it was not done so, the benefit should be

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given to the accused.

[3] Advocate Ms. Panchal submitted that the

chemical analysis of the contraband was not of

the green leaves as mentioned in the Panchnama

but in fact, the sample shows the mixture of

greenish brown plant part of flowering fruity

tops, twigs etc. and on the basis of the

microscopic, chemical and chromatographic

examinations, it was concluded that each of

the 4 samples under reference were answered to

be having the positive test for Ganja. Thus,

Ms. Panchal submitted that the contraband

which was seized from the accused and was sent

for chemical analysis were totally different

and the accused have been falsely implicated

in the entire case, where the very fact of

traveling from Pune to Ahmedabad, National

Highway which would cover almost around 600

kms., the contraband in the polythene bags and

contraband in the brown coloured packets and

white coloured polythenes could not bear the

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heat in the bonnet and the chemical analysis

has not reflected of any reaction to the

seized articles because of continuous heat

pressure generated in the bonnet of Tata Sumo.

Advocate Ms. Panchal thus submitted that

benefit of doubt is required to be extended in

favour of the accused.

[4] Countering the arguments, Advocate Mr. Kartik

Pandya for the NCB submitted that on the

specific secret information, the vehicle was

intercepted and signal to stop the white

colour Tata Sumo at CTM Toll Plaza, Ahmedabad

was given. Mr. Atul Yadav, Junior Intelligence

Officer along with panch witness saw two

persons present in the vehicle and after

inquiry, they revealed their names as

Virendrasinh Darbar and Rajeev Yadav and the

names matched the secret information and

during the search of the vehicle, the

contraband Ganja was found concealed in the

bonnet in 27 brown coloured packets and 5

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white coloured polythenes and all the packets

were opened one by one in presence of Panchas

and greenish coloured leaves were found inside

and that was informed to be Ganja by the

accused persons found in the vehicle.

[5] Advocate Mr. Kartik Pandya submitted that as

it was at Toll Plaza and the crowd was

gathering at the spot, considering the

security arrangement, NCB preventive team

along with the accused with all the packets

containing Ganja and panch witnesses proceeded

towards the room of the CTM Toll Plaza which

was just adjacent to the main Toll Plaza and

the room was provided by the persons of CTM

Toll Plaza on request of Mr. Atul Yadav, where

in the presence of Panchas, the Panchnama was

drawn. All the bags were weighed by electronic

machine and gross weight of Ganja was found to

be 61.959 kgs. After completing the process, a

report was submitted under Section 57 of the

NDPS Act to the Zonal Director, NCB, Ahmedabad

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by Shri Atul Yadav as Ganja was found from the

possession of Vikramsingh Darbar (Virendra

Batulsinh Darbar) and Rajeev Yadav. After the

certification of correctness of the inventory

of the seized narcotic drugs and conveyance,

certification of photographs and the drawl of

representative samples under Section 52A of

the NDPS Act was made and the proceedings were

undertaken in presence of Hon'ble Chief

Metropolitan Magistrate, Ahmedabad. Two

samples were drawn from each of the four

plastic bags and were sent for the analysis

and it was reported that the samples sent were

examined by microscopic, chemical and

chromatographic method and was found positive

for Ganja.

[6] Mr. Pandya submitted that the seized article

was in the conscious possession of both the

accused since they were driving from Pune to

Ahmedabad and the parcels were in the bonnet

of the Tata Sumo. He further submitted that

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the CDR analysis of both the accused reflect

the conversation and on the date of

procurement of the seized Ganja. The present

applicant's mobile number is registered in the

name of Rajeev Yadav, son of Satyaveersinh,

resident of Chdandlodiya, Ahmedabad Gujarat-

382481 and his CDR analysis shows that he was

in touch with Yoga, supplier of seized Ganja.

The location of the co-accused and the present

applicant was in Maharashtra on the day of

procurement of the seized Ganja.

[7] Advocate Ms. Panchal submitted that before the

Lower Court, the records of CDR was not

available and affidavit to the effect shows

that it was awaited to be filed, but Advocate

Mr. Pandya for NCB referred to the documents

of charges filed by Rajkumar Singh,

Intelligence Officer, NCB, Ahmedabad to state

that the details of the CDR of the mobile

phone of both the accused are referred and

certified copies of CDRs, SDRs and CAFs were

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procured along with the certificate under

Section 65B of the Indian Evidence Act of the

concerned service provider and the analysis of

the mobile phones revealed that their presence

was found to the mobile tracking at

Maharashtra and also with the supplier named

Yoga in the constant mobile contacts of both

the accused as also found with the contraband

articles in the bonnet of Tata Sumo and both

the accused found in the vehicle at the Toll

Plaza notes the conscious possession of the

accused in the vehicle with the Ganja in

commercial quantity.

[8] In Union of India v. Md. Nawaz Khan, reported

in (2021) 10 SCC 100, the Hon'ble Apex Court

has referred to the test to be applied while

granting bail under the NDPS Act. Principles

of "Reasonable grounds to believe" for grant

of bail and "conscious possession" are

summarized in the judgment to ascertain them.

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[9] The facts of the case here suggest that the

accused was having knowledge of the possession

of the contraband. They were in a private

vehicle and had traveled from Pune to

Ahmedabad. The CDR details and also their

conversation with the alleged supplier is

established. The contraband is in commercial

quantity. They were systematically packed and

placed in the bonnet of the Tata Sumo.

[10] Advocate Ms. Panchal has also submitted that

since the arrest, the trial has not progressed

and that itself would amount to violation of

Article 21 of the Constitution of India and

thus, placing reliance in the case of Rabi

Prakash v. The State of Odisha passed in

Special Leave to Appeal (Cri) no.4169/2023,

made a prayer to grant bail on suitable

conditions submitting that the prolonged

incarceration abridges fundamental right of

the accused for a speedy trial. To that

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contention, it is always expected from the

Trial Court Judge to ensure that the charges

are framed within reasonable time and the

trial gets concluded expeditiously.

[11] Advocate Ms. Panchal has relied upon the order

of this Court in the case of Chandankumar

Sudarshan Vind v. State of Gujarat rendered in

Criminal Misc. Application no.14381/2022,

where this Court was observing the facts with

the secret information that the Ganja was

allegedly found at railway tracks below the

Ashwini Bridge, Varachha and since being a

public place, the argument was to the effect

that the examination of the contraband article

ought to have been at the place of offence,

but was carried to the police chowky and then,

the Panchnama was made in presence of the FSL

officer. The Ganja as was weighed was below

the commercial quantity in the matter which

would not be helpful to the applicant in the

present matter and further here in this case,

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the seizure Panchnama was drawn at the place

of Toll Plaza in the room provided by the Toll

Plaza officer, and thereafter, after the

process under Section 52A of the NDPS Act, the

samples were drawn in presence of the learned

Chief Metropolitan Magistrate, Ahmedabad and

the verification of the correctness of the

inventory was done by the Court on 16.12.2021.

[12] Advocate Ms. Panchal has also referred to the

opinion of Tata Motors Company to state that

every petrol engine's exhaust manifold before

the catalytic converter is getting 220 direr

Celsius. It may be burned with any type of

cotton, plastic or paper items. Thus, it was

submitted that it would not have been possible

to carry the contraband in the plastic and

paper covers as has been demonstrated by the

prosecution which falsifies the case. The said

argument is technical in nature which the

accused would have a liberty to raise during

the course of the trial.

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[13] Advocate Ms. Panchal has relied upon the

judgment passed in Criminal Misc. Application

no.5417/2022, wherein about 200 kgs. of Ganja

was found concealed in an Eicher truck. The

said judgment would also bear no relevance to

support the applicant's case as the person who

was granted bail was found to be helper on the

truck and the contraband was found with the

co-accused concealed in a plastic gunny

packet.

[14] Prima facie, in view of the judgment in the

case of Union of India v. Md. Nawaz Khan

(supra), this Court does not find any reason

to entertain the present application. Hence,

the present application stands rejected.

(GITA GOPI,J) Maulik