Gujarat High Court
Khubedi @ Raja S/O Khurshid Sailani vs State Of Gujarat on 18 April, 2024
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R/CR.MA/5373/2024 CAV JUDGMENT DATED: 18/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 5373 of 2024
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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KHUBEDI @ RAJA S/O KHURSHID SAILANI
Versus
STATE OF GUJARAT
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Appearance:
MR. VATSAL D. RUPAREL(14194) 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 : 18/04/2024
CAV JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent-State.
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2. 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.11210046221329 of
2022 registered with the Puna Police Station, Surat CIty of the
offence punishable under Sections 8(C ), 22(C ) and 29 of the
NDPS Act.
3. The factual matrix in the instant case, as submitted by
the prosecution, is as under:
3.1 One Vilesh Jaswantbhai Gamit, an unarmed Police
Constable, Buckle No.2188, serving at Puna Police Station,
Surat City has filed the present complaint stating that he
received a secret information from his very reliable sources
that on 28.09.2022, between 10:30 and 12:00 O'clock in the
night hours, one person, namely, Afzal @ Guru, a resident of
Ajmer will bring the contraband Mephedrone to Surat all the
way from Mumbai by passing through Niyol Check Post, who is
having a beard and will be in a blue coloured white dotted
round necked t-shirt and Navy blue coloured track pant
carrying a black coloured traveling bag. Thereafter, the said
information was reduced into writing and forwarded to the
Police Inspector Shri V.M. Koladra.
3.2 Thereafter, as the raid had to be carried out, Panchas
were also called for. Then, after following necessary legal
procedure of carrying out a raid, all the members of the
raiding party reached at Niyol Check post and took their
individual positions for keeping a watch.
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3.3 Thereafter, as per the information, one person having a
beard and carrying a traveling bag on his back side was found
to be coming walking on a service road from the Kadodara
Cross Road wearing a blue coloured white dotted round necked
t-shirt and navy blue coloured track pant. Therefore, all the
members of the raiding party came out and cordoned the said
person at around 23:10. Thereafter, upon asking about his
identity, the said person identified himself as Afzal @ Guru S/o.
Subrat Ali Saiyed, a resident of Ajmer.
3.4 Thereafter, the said person got acquainted with such
secret information by the police and after following due
procedure in accordance with law, a personal search of the
said person was carried out, however, nothing objectionable
was found from his personal search. Thereafter, upon the black
coloured traveling bag being searched by the police, from the
middle pocket of the bag, some cloths were found and below
the cloths, one light green coloured fabric bag was found and
from the said light green coloured fabric bag, one black
coloured plastic bag was also found containing some white
coloured powder. Thereafter, when the person caught by the
police was being asked about the said powder, he admitted it
to be the contraband Mephedrone. Thereafter, samples were
taken and upon testing with the drug detection kit, the
samples tested positive for Mephedrone. The total quantity of
contraband Mephedrone recovered was 1.670 k.g. Hence, the
present FIR.
4. Learned advocate Mr. V.D. Ruparel appearing for the
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applicant has submitted that the applicant-accused is an
innocent young man, aged about 27 years languishing in the
judicial custody since 17.04.2023. It is further submitted that
the investigation has already been completed and charge-
sheet has also been filed. Learned advocate Mr. Ruparel has
also submitted that the first information report came to be
lodged against one Afzal @ Guru as well as wanted accused
Ballu and an unknown person. It is further submitted that the
applicant-accused has not been named in the FIR and after a
period of almost seven months, on the basis of the statement
of the co-accused, the present applicant-accused has been
implicated in the present case. Learned advocate Mr. Ruparel
has further submitted that there is no recovery or discovery of
any incriminating material at the instance of the applicant-
accused. Even he was not found at the place of occurrence and
was not caught red-handed by the police along with the
contraband substance. It is further submitted that the co-
accused, namely, Kaushar Imran @ Ima Malik Abdul Shaikh,
who is having similar role than that of the applicant-accused
has already been enlarged on bail by this very Court. The only
incriminating material collected by the Investigator against the
applicant-accused to implicate him in the present offence is in
the form of CDR (Call Data Record) indicating that he was in
constant touch along with the other co-accused who was
caught red-handed by the police along with the contraband
article. Except that, no other incriminating has been found
against the applicant-accused. It is also submitted that the
present applicant-accused does not have any past
antecedents. Under the circumstances, learned advocate Mr.
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Ruparel prays that the applicant may be enlarged on bail on
any suitable terms and conditions.
5. On the other hand, this application has been vehemently
opposed by the learned APP Mr. Hardik Soni appearing on
behalf of the respondent-State looking to the nature and
gravity of the offence. Learned APP has submitted that on the
basis of the specific inputs received by the police, the accused
No.1, namely Afzal @ Guru was caught red-handed along with
the contraband substance weighing 1.670 kg worth
Rs.1,67,00,000/-. It is moreso submitted that in fact the
applicant-accused was in constant touch with the other co-
accused persons which is evident from the CDR collected by
the Investigating Officer. Learned APP has further submitted
that it is true that the present applicant-accused was not found
at the place of occurrence and was not caught red-handed
along with the contraband substance, however, mere absence
of the applicant accused is not the sole criteria to show any
leniency in favour of the applicant-accused and the other
attending circumstances are also required to be seen. A huge
cache of contraband Mephedrone has been recovered from the
possession of the other co-accused. It is reveals during the
course of investigation that the applicant-accused along with
the main accused had gone at the office of one Angadiya firm
and sent an amount of Rs.10 Lakh at the Angadiya firm
situated at Mumbai which was received by one Pudibaba who
happens to be the father of the applicant-accused and the said
fact is evident from the statements of the staffers of both the
Angadiya firms. Even from the CCTV footage installed in the
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Angadiya firm, the presence of the applicant-accused is clearly
found out. Learned APP has also submitted that the person
who was caught red-handed is one of the drug peddlers and
the applicant-accused was in constant touch with the said
accused person at the time of commission of offence.
Moreover, the contraband substance recovered in the present
case is of more than a commercial quantity and, therefore,
rigors of Section 37 would also come into play. Therefore,
considering the role attributed to the applicant-accused, this is
a fit case wherein discretionary power of this Court is not
required to be exercised in favour of the applicant-accused.
6. Having heard the learned counsel appearing for the
parties and having considered the materials on record, the
only question that falls for my consideration is whether
discretion should be exercised in favour of the applicant
herein or not?
7. In light of the aforesaid, it is pertinent to refer and
analyze the provisions and objective of the NDPS Act. Section
37 of the Act reads as under:
"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
1[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--
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(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
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 sub-section (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."
8. In view of the gravity of the consequences of drug
trafficking, the offences under the NDPS Act have been made
cognizable and non- bailable. The Section does not allow
granting bail for offences punishable under Section 19 or
Section 24 or Section 27A and for offences involving
commercial quantity unless the two-fold conditions prescribed
under the Section have been met. The conditions include:
a) hearing the Public Prosecutor; and
b) Satisfaction of the court based on reasonable grounds that
the accused is not guilty of the offence and that he is likely to
not commit an offence of a similar nature.
9. The fetters on the power to grant bail does not end here,
they are over and above the consideration of relevant factors
that must be done while considering the question of granting
bail. The court also needs to be satisfied before grant of bail
about the scheme of Section 439 of the Code. Thus, it is
evident that the present section limits the discretion of the
court in matters of bail by placing certain additional factors
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over and above, what has been prescribed under the Code.
10. The contours of Section 37 of the Act have been analysed
by the Hon'ble Supreme Court in the case of Union of India v.
Ram Samujh (1999) 9 SCC 429. In this case, the Apex Court
adjudged the validity of the order on bail granted by the High
Court in a case registered under the Act. The Hon'ble Court
extracted the Statement of Objects and Reasons for the
introduction of amended Section 37 of the Act through Bill No.
125 of 1988. It is relevant to extract those for the present
analysis, which reads as:
"6. The aforesaid section is incorporated to achieve
the object as mentioned in the Statement of Objects
and Reasons for introducing Bill No. 125 of 1988
thus:
"Even though the major offences are non-bailable by
virtue of the level of punishments, on technical
grounds, drug offenders were being released on
bail. In the light of certain difficulties faced in the
enforcement of the Narcotic Drugs and Psychotropic
Substances Act, 1985, the need to amend the law to
further strengthen it, has been felt."(emphasis
supplied)
7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a murder
case, the accused commits murder of one or two
persons, while those persons who are dealing in
narcotic drugs are instrumental in causing death or
in inflicting death-blow to a number of innocent
young victims, who are vulnerable; it causes
deleterious effects and a deadly impact on the
society; they are a hazard to the society; even if
they are released temporarily, in all probability, they
would continue their nefarious activities of
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trafficking and/or dealing in intoxicants
clandestinely. Reason may be large stake and illegal
profit involved. This Court, dealing with the
contention with regard to punishment under the
NDPS Act, has succinctly observed about the
adverse effect of such activities in Durand Didier v.
Chief Secy., Union Territory of Goa [(1990) 1 SCC 95
: 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24)
"24. With deep concern, we may point out that the
organised activities of the underworld and the
clandestine smuggling of narcotic drugs and
psychotropic substances into this country and illegal
trafficking in such drugs and substances have led to
drug addiction among a sizeable section of the
public, particularly the adolescents and students of
both sexes and the menace has assumed serious
and alarming proportions in the recent years.
Therefore, in order to effectively control and
eradicate this proliferating and booming devastating
menace, causing deleterious effects and deadly
impact on the society as a whole, Parliament in its
wisdom, has made effective provisions by
introducing this Act 81 of 1985 specifying
mandatory minimum imprisonment and fine."
11. Thus, what is evident from the above is that the
offences prescribed under the Act are not only a menace
to a particular individual but to the entire society
especially, the youth of the country. Such offences have a
cascading effect and are in vogue these days, thus
destroying the capabilities and lives of a substantial chunk
of the population and trend has been growing over the
years. Thus, to prevent the devastating impact on the
people of the nation, Parliament in its wisdom deemed it
fit to introduce stringent conditions for grant of bail under
the Act. The Court must stay mindful of the legislative
intent and mandate of the Act while considering the
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question bail in such matters.
12. As far as condition under Section 37(b)(i) is
concerned, there is no ambiguity in its interpretation. It
gives effect to the doctrine of audi alteram partem. Since
the crime is an act against the society, the legislature has
contemplated that the Public Prosecutor must be given an
opportunity to oppose a bail application under the Act.
Additionally, under Section 37(b)(ii) of the NDPS Act, the
court is not required to be merely satisfied about the dual
conditions i.e., prima facie opinion of the innocence of the
accused and that the accused will not commit a similar
offence while on bail, but the court must have "reasonable
grounds‟ for such satisfaction.
13. The term "reasonable grounds‟ under Section 37(b)
(ii) has been interpreted by the Hon‟ble Supreme Court in
the case of Union of India v. Shiv Shanker Kesari, (2007) 7
SCC 798. It was a case where an appeal was preferred
against the order granting bail under the NDPS Act by the
High Court. The prosecution alleged that the raiding party
seized nearly 400 kgs of poppy straw from the possession
of the accused therein. The special court rejected the bail
while the High Court granted the bail on the ground that
the recovery was not from the exclusive possession of the
accused, but other family members were also involved.
The Supreme Court set aside the order granting bail. In
this context, it interpreted "reasonable grounds‟
under Section 37 of the Act, as under:
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"7. The expression used in Section 37(1)(b)(ii) is
"reasonable grounds". The expression means
something more than prima facie grounds. It
connotes 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. The word "reasonable" has in law
the prima facie meaning of reasonable in regard to
those circumstances of which the actor, called on to
act Signature Not Verified Digitally Signed
By:GAURAV SHARMA Signing Date:25.01.2022
17:34:17 reasonably, knows or ought to know. It is
difficult to give an exact definition of the word
"reasonable".
14. Thus, the term "reasonable grounds‟ is not capable of
any rigid definition, but its meaning and scope will be
determined based on the surrounding facts and circumstances
of each case. Thus, what may be reasonable in one set of facts
may not be reasonable in another set of facts. However, the
standard of satisfaction in such cases is more than mere
satisfaction on a prima facie opinion. Thus, the court before
exercising its discretion for granting the bail must record the
reasonable grounds before granting bail to the accused.
15. The Supreme Court in the case of Union of India v. Md.
Nawaz Khan (2021) 10 SCC 100 has reiterated the position of
law with respect to Section 37 of the Act. After analysing the
previous decisions of the Hon‟ble Supreme Court, the court
prescribed the following test for granting bail under Section
37 of the NDPS Act:
"20. Based on the above precedent, the test which the
High Court and this Court are required to apply while
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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."
16. Thus, the court must be conscious about the mischief
that is sought to be curbed by the Act and the consequences
that might ensue if the person accused of the offence under
the Act is released on bail. The court ought to be satisfied on
the basis of reasonable grounds discernible from the facts and
circumstances that the Petitioner is not guilty of offences that
the accused is charged with. Additionally, the court also needs
to be satisfied that the person so released will not commit the
offence while being on bail. Both the conditions are interlinked
because the legislature intends that in cases where there is a
possibility of commission of this grave offence under the Act,
the person need not be released. It is so because if the person
is released, he is most likely to repeat the offence, thus
impacting the society at large. Thus, to not give any leeway to
the accused, the court has to be satisfied about the dual
conditions on reasonable grounds.
17. In the instant case, the case of the applicant and his role
in the entire sequence of events is not as simple as has been
projected during the entire course of arguments by learned
counsel for the applicant. He is not merely arrested for the
small quantity of contraband but has been implicated for his
role as being a part of a larger drug trafficking. Here, in the
present case, the applicant is charged for commercial quantity
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weighing 1.670 k.g. of Mephedrone and, therefore, his bail
application needs to be decided as per Section 37 of the Act.
One Afzal @ Guru was caught red-handed by the raiding party,
and during the course of investigation, the name of the
applicant-accused has come on surface. The applicant-accused
was in constant touch with the other co-accused persons.
Furthermore, the applicant-accused also sent an amount of
Rs.10 Lakh through one Angadiya firm which was received by
one Pudibaba who happens to be the father of the applicant-
accused against which total 23 offences of NPDS, rioting,
extortion etc. have been registered. That apart, the moot
question that arises is from where and whom the applicant-
accused got such a huge amount when he did not know
anybody in Surat and he went there only for touring purposes
for visiting some religious places. Ordinarily, when a person
goes for outing, he has to spend money for which sometimes
it happens that such person has to ask money from his or her
relatives, however, here in the case on hand, the situation is
altogether different. Here instead of asking money, a huge
amount had been sent by the applicant-accused to his native
at Maharashtra through an Angadiya firm which was received
by his father. The CDR collected by the Investigating Agency
suggests that there are in all total 368 phone calls between the
applicant-accused and accused Khurshid Ahamed @ Pudibaba
during the period when the crime was committed. All requisite
procedures had also been followed as per the law and,
thereafter, the accused persons came to be arrested.
Moreover, at the time of granting bail, the court has to
consider the role attributed to the applicant-accused in the
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commission of the offence as well as gravity of offence and in
the present case, considering the role attributed to the
applicant in the offence, as the act of the applicant would
effect to the youth of the nation, I am of the opinion that the
present application is required to be rejected.
18. In view of the aforementioned facts, circumstances,
analysis and reasoning, keeping in mind the legal provisions
and the underlying intent as well as the mischief that is sought
to be curbed by the NDPS Act, this Court is of the considered
view that the conditions stipulated under Section 37 of the Act
are not satisfied and there are no "reasonable grounds‟ to
presume the accused as not being guilty of the offence. Thus,
this Court is not inclined to allow the instant bail application as
being devoid of any merit and hence, liable to be rejected.
19. Accordingly, the instant bail application stands rejected.
Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
