Gujarat High Court
Mohammed Tahir Mohammed Hussain ... vs The State Of Gujarat on 22 September, 2023
Bench: Nirzar S. Desai
NEUTRAL CITATION
R/CR.MA/16563/2023 ORDER DATED: 22/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 16563 of 2023
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MOHAMMED TAHIR MOHAMMED HUSSAIN KASAMBHAI SIPAI
Versus
THE STATE OF GUJARAT
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Appearance:
MR. SANKUL K KABRA(9304) for the Applicant(s) No. 1
MR. J.K. SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 22/09/2023
ORAL ORDER
1. By way of this successive application for regular bail under
Section 439 of the Criminal Procedure Code, the applicant has
prayed to release him on regular bail in connection with the FIR
dated 11.09.2021 being C.R. No. 11191011210106 of 2021
registered with the D.C.B. Police Station, Ahmedabad City, District -
Ahmedabad City for the offence under Sections 8(C),20(b), 29 of the
Narcotic Drugs and Psychotropic Substances Act.
2. Rule returnable forthwith. Learned APP waives service of rule
for and on behalf of the respondent -State.
3. What is important noticing the fact that after filing of the
charge sheet, the applicant preferred an application under Section
439 of the Cr.P.C. being Criminal Misc. Application No.11694 of
2022, which was withdrawn by the applicant vide order dated
13.01.2023.
NEUTRAL CITATION
R/CR.MA/16563/2023 ORDER DATED: 22/09/2023
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4. Today, by way of this successive bail application, the applicant
is seeking regular bail for the aforesaid offence. The applicant was
heard on merits, on earlier occasion and thereafter, the applicant
had withdrawn the application for bail vide order dated 13.01.2023.
The Court specifically asked the learned advocate for the applicant
that what is the change of circumstance. Learned advocate for the
applicant could not point out any change of circumstance and
submitted that though there is no change of circumstance and
considering the fact that since one year and either months the
present applicant is in jail and trial has not begun and therefore this
application is filed.
5. Learned advocate for the applicant relied upon the decision in
case of Union of India Vs. A.K. Najeeb, reported in 2021 (3)
SCC 713 and submitted that in view of the aforesaid decision of the
Hon'ble Supreme Court and considering the period of incarceration,
the present applicant is required to be enlarged on bail irrespective
of the fact that whether there is change of circumstances or not. He
also submitted that in Para - 12 of the aforesaid judgment, the
Hon'ble Supreme Court has observed that when the accused person
for extended period with little possibility of completion of trial, the
constitutionality of harsh condition for bail is special enactment like
NDPS Act has been preliminary justified on the touch stone of
speedy trial to ensure protection of civilians. While relying upon the
aforesaid judgment, he submitted that the present applicant is in jail
for one year and eight months and therefore he may be enlarged on
bail.
NEUTRAL CITATION
R/CR.MA/16563/2023 ORDER DATED: 22/09/2023
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6. Learned APP Mr. J.K. Shah for the respondent -State has
vehemently opposed the application and submitted that the present
applicant had earlier withdrawn the bail application on 13.01.2023,
i.e. just before eight months when the bail application was heard by
this Court considering the merits. He further submitted that the
period of incarceration cannot be said to be too long as the
applicant is in jail since January - 2022, i.e. less then two years. He
further submitted that the contraband involved in the offence in
question is of commercial quantity and allegation against the
present applicant is of serious nature, therefore, learned APP Mr.
Shah submitted that considering the fact that as the present
applicant miserably failed to point out any change of circumstance,
this court at the most may expedite the trial but may not release
the present applicant on bail, considering the fact that no change of
circumstances are pointed out.
7. Having heard learned advocates and perused the record and
also considered the judgment relied upon by the learned advocate
for the applicant and considered the fact that the present applicant
by way of this application has failed to point out change of
circumstances. This Court is of the view that this successive bail
application, which was withdrawn very recently in January - 2023
cannot be entertained as there is no change of circumstance
pointed out by the learned advocate for the applicant. So far as
period of incarceration is concerned, the applicant is in jail since last
one year and eight months. According to him trial has also not been
commenced. Considering the fact that even the judgment relied
upon by the learned advocate for the applicant is in respect of long
period of incarceration and considered the fact that the present
applicant is in jail for less than two years, the trial is expedite. The
NEUTRAL CITATION
R/CR.MA/16563/2023 ORDER DATED: 22/09/2023
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present application is required to be dismissed and the same is
disposed of as dismissed as the applicant could not point out any
change of circumstance. Rule is discharged.
(NIRZAR S. DESAI,J)
prk
