Gujarat High Court

Ashishsinh Ashoksinh Rajput vs State Of Gujarat on 6 September, 2023

Bench: Hasmukh D. Suthar

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     R/CR.MA/11650/2023                                  ORDER DATED: 06/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 11650 of 2023
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                          ASHISHSINH ASHOKSINH RAJPUT
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR AJAYKUMAR G MAKWANA(11595) for the Applicant(s) No. 1
MS HIRALBEN D PATEL(11646) for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                Date : 06/09/2023

                                 ORAL ORDER

1. By way of the present application under Section 438 of the

Code of Criminal Procedure, 1973, the applicant accused has

prayed to release him on anticipatory bail in the event of his

arrest in connection with the FIR being C.R.

No.11191011220166/2022 registered with DCB Police

Station, Ahmedabad, for the offences punishable under

Sections 8(c), 21(c), and 29 of the Narcotic Drugs Psychotropic

Substances Act, 1985 (hereinafter referred to as NDPS Act for

short).

2. Rule. Ld. APP Mr. L.B.Dabhi waives service of Rule for the

Respondent State.

3. Learned counsel for the applicant submitted that the applicant

is a pharmacist and having a shop in the name and style of

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Mayur Healthcare. The applicant is having valid license in

Form 20B to sell and purchase the cough syrup bottles and for

the business purpose, he purchased the syrup for his own

shop and invoiced have also been raised towards the genuine

purchase of the applicant. He further submitted that he has

not violated any terms of the license and at the relevant point

of time, rickshaw driver carrying alleged contraband cough

syrup intercepted and based on the statement of co-accused,

present applicant has been arraigned as accused. He relied

upon the invoice dated 15.12.2022, which is issued by Medrish

Pharmaceuticals Pvt. Ltd. in favour of one Aadyant

Pharmatech, Gandhinagar. He therefore submitted that there

is no any illegal transportation of the contraband. Relying on

the judgment of this Court rendered in case of Zuber

Idreesbhai Dadi Vs. State of Gujarat, (in CR.MA/19213/2020,

dated 30.06.2021), he submitted that merely on the basis of

statement of co-accused, the applicant cannot be roped in the

offence.

4. Per contra, learned APP Mr. L.B.Dabhi appearing for the

respondent State has vehemently opposed the present

application contending that the brother of the applicant is also

involved in the same offence and subsequently, at the instant

of the brother, the applicant is involved in the said offence. He

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submitted that during the course of investigation, it has come

on light that 900 bottles of syrup transported in a rickshaw

and were to be supplied to the applicant. Accused Fardin as

well as the applicant were in contact and they were engaged

in such illegal activities. From the statement of accused No.1,

it clearly reveals that he used to transport such illegal

contraband as the applicant and accused both were the

classmates at the relevant point of time. Mr. Dabhi submitted

that the chargesheet has already been filed and names of the

accused are mentioned in column No.1. Therefore,

interrogation of the accused are required in the alleged

offence. Considering the same, present application may not

be considered.

5. This Court has heard learned counsel for both the sides and

considered the material placed on record.

6. As the offence in question is under the provisions of the NDPS

Act, it is required to be mentioned that under the provisions of

Section 37(1)(b)(ii) of the NDPS Act as alleged contraband is

900 bottles of codeine, FSL report is produced on record.

Seized contraband in the said offence is of commercial

quantity, hence, it is required to be considered differently and

rigors of Section 37 of the NDPS would attract. This is not a

case where the Court has to consider provisions of Section

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438 of the Code, however, at the outset, it is worth to mention

that under the NDPS Act, the reverse burden is on the part of

the accused. In this regard, reference is required to be made

upon the judgment of the Apex Court delivered in the case of

Dataram Singh Vs. State of Uttar Pradesh, wherein the

apex Court has observed thus:-

"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences."

That 900 bottles of codeine syrup recovered are above

the commercial quantity and as such the rigour of Section 37

would be applicable in the instant case. The FIR depicts prima

facie involvement of the applicant. The charge-sheet has been

filed. Perusal of the FIR and other material placed on record, it

reveals that total 900 bottles of syrup was seized from the

auto-rickshaw, which was to be delivered as per the

instructions of the applicant herein. Looking to the

investigation papers, prima facie involvement of the applicant

is found.

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7. So far as the argument raised to the effect that the applicant

is arraigned as accused on the basis of statement of co-

accused, having no substance considering the statement and

papers of the chargesheet. Further, the applicant having a

valid license is not an evidence to show that he has purchased

the goods from manufacturer. There is no privy or direct

nexus between the applicant and manufacturer and as the

present applicant runs his business in the name and style of

Mayur Healthcare, on this count also, detail and thorough

investigation is required to be performed in the instant case.

8. Relying upon the judgments of this Court rendered in the case

of Mohmed Salim Abdul Rasid Shaikh Vs. State of

Gujarat, rendered in 2001 (2) GLR 1580 as well as in the

case of Dolatram Tekchand Harjani Vs. State of Gujarat,

reported in 2013 (3) GLR 2133, so far investigation is

concerned, statement of the co-accused is relevant and it

provides the clue and for that purpose, statement of co-

accused is relevant and as the serious offence is disclosed,

then the Court should not exercise its jurisdiction granting

anticipatory bail. In Dolatram Tekchand Harjani (supra)

has observed in para 9.10 to 9.13 as under:

"9.10 The said submission gives rise to an issue viz. does it mean that on the basis of, or in light of, a statement of co-

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accused even investigation cannot be initiated. On this count, it comes out that while raising the said contention, it is conveniently overlooked that such position or preposition does not mean that statement by a co-accused cannot act as or cannot be even treated as a piece of information or a clue to initiate and conduct inquiry/investigation so as to find out whether there is any independent, cogent, reliable and satisfactory material/evidence which may support, justify and provide cause for further investigation or a charge-sheet and a trial.

9.11 In present case, name of the petitioner is disclosed / mentioned in a statement of a co-accused with reference to offence under Sections 307 and 120B of IPC and Sections 25(1)A and (b) and 27(1) of Arms Act and therefore, police has commenced investigation.

9.12 Against such investigation process, the petitioner has taken out present petition under Section 482 of the Code and prayed that the investigation process may be stopped and it may be quashed. In support of the said request, the aforesaid contention is raised.

9.13 The position/preposition (raised in light of the provision under Section 25 of the Indian Evidence Act) that a statement by a co-accused is not admissible in evidence and therefore cannot be relied on, cannot be construed to mean that such statement cannot be even considered or treated as a clue or a piece of information to initiate and conduct inquiry/investigation or to direct the investigation/inquiry in a particular direction. Such a statement can be treated as a clue or piece of information (and not evidence ) for initiating and conducting investigation/inquiry so as to find out as to whether there is any independent, satisfactory and reliable material which may support or justify or provide reason for

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continuing inquiry/investigation for initiating further investigation. At the stage when the investigation has commenced or the process is going on any occasion or any question of treating or considering such a statement as evidence does not arise and that, therefore, it would not be proper and just to terminate, i.e. to direct the investigation officer to close the investigation."

9. In State of Kerala Vs. Rajesh, the Apex Court held that in

view of the provisions of Section 37 (1)(b)(ii) of the NDPS Act,

since the offence involves recovery of the prohibited

substance in excess of the commercial quantity, the court is

required to record its satisfaction that there are reasonable

grounds for believing that the applicant is not guilty of such

offence and that the applicant is not likely to commit any

offence while on bail.

10. In Babua @ Tazul Hussain Vs. State of Orissa, the Hon'ble

Apex Court has been pleased to observe as under:-

"3. In view of Section 37((1)(b) of the Act unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)

(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we

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cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the Court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view."

11. While the expression used in Section 37(1)(b)(ii) is reasonable

grounds. The expression means something more than prima

facie grounds. It cannot substantial probable causes for

believing that the accused is not guilty of the offence charged

and this reasonable belief contemplated in turn points to

existence of such facts and circumstances as are sufficient in

themselves to justify recording of satisfaction that the

accused is not guilty of the offence charged.

12. Considering the peculiar facts and circumstances of the case

as well as considering the material placed on record, it

appears that the seized contrabad was of 900 bottles of syrup,

transported in a rickshaw and were to be supplied to the

applicant. Accused Fardin as well as the applicant were in

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contact and they were engaged in such illegal activities. It

also appears from the record that, the applicant used to

transport such illegal contraband as the applicant and

accused both were the classmates at the relevant point of

time. It is also required to be noted that the judgments relied

upon by learned counsel for the applicant would not help the

case of the applicant as the contraband syrup is of

commercial quantity.

13. Further, in the case of Mohammed Fasrin Vs. State

(CR.MA/296/2014), the Apex Court has observed as under:

"...The confessions of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been made by the co-accused."

14. Learned counsel for the applicant has relied on the order

dated 19213/2020 delivered in the case of Zuber Idreesbhai

Dadi Vs. State of Gujarat, (in CR.MA/19213/2020) and

argued that merely on the basis of the statement of the co-

accused, the applicant cannot enroped in the offence.

However, it is to be noted that while deciding the bail

application, the Court should not blindly rely upon the

precedent as held by the Apex Court in the case of Kalyan

Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav,

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reported in (2004 (7) SCC 528, as each case should be

decided on its own merits and the Court has to consider the

facts of each case and in the instant case, prima facie

involvement of the accused is found.

15. It is appropriate to refer to the judgment of the Apex Court

rendered in case of Pratibha Manchand Vs. State of

Haryana, reported in AIR 2023 SC 3307, wherein the Apex

Court has observed thus:-

"19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."

In view of the above decision and in view of the facts

and circumstances of this case, custodial interrogation of not

only the applicant, but all other suspect/s is therefore

imperative to unearth the truth. Hence, this is a not a fit case

to exercise the jurisdiction in favour of the applicant.

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16. In this background facts, this Court prima facie is of

considered view that, there is a reasonable ground to believe

that the applicant has committed the alleged offence.

Considering the facts of the present case, it cannot be said