Gujarat High Court
Dipak @ Alok Ashokkumar Pandi vs State Of Gujarat on 13 February, 2024
NEUTRAL CITATION
R/CR.MA/2039/2024 ORDER DATED: 13/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 2039 of 2024
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DIPAK @ ALOK ASHOKKUMAR PANDI
Versus
STATE OF GUJARAT
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Appearance:
MR.HITENDRA D RAJPUT(7224) for the Applicant(s) No. 1
MR. DHAWAN JAYSWAL, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 13/02/2024
ORAL ORDER
1. Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent-State.
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.11210021220857 OF
2022 registered with Katargam Police Station, Surat of the
offence punishable under Sections 8(c), 20(b)(ii-B) and 29 of
the NDPS Act.
3. The case of the prosecution in brief is that the Head
Constable of the Katargam Police Station, namely, Surjitsinh
Hardevsinh, Buckle No.372 received a tip-off that among the
various closed huts situated at the slum area of Uttkalnagar,
between the fourth hut from the last and the hut situated
behind it in the Bilpada street, one cavity box behind top of the
metal sheet was made by the accused Munna Congress Pandi
and Dipak Ashok Pandi, i.e., the applicant-accused wherein the
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cache of contraband Ganja was hidden.
3.1 Then, after following necessary procedure as per the law
Panchas were also called for and thereafter the police staff
along with the Panchas went to the slum area of Utkalnagar
and then reached at the pointed place where the raiding party
found two persons sitting in a narrow street spacing liken one
hut who were caught by the police at 22:30. Thereafter, the
police introduced themselves to both these persons who upon
asking their names identified themselves as Munna Congress
Pandi and Dipak @ Alok Ashokkumar Pandi.
3.2 Then both these accused persons were being acquainted
with the secret information received by the police and asked
them to show the hidden box where the contraband Ganja is
hidden whereupon they took the raiding party to that particular
place and confessed before the police in the presence of the
Panchas that they have hidden the contraband Ganja in the
said box. After that, upon search being carried out by the
raiding party, contraband Ganja in the quantity of 305. 860 kg
was found from the said box. Thus, the present FIR.
4. Learned advocate Mr. H.D. Rajput appearing for the
applicant has submitted that the applicant-accused was
arrested on 28.09.2022 and he is in jail ever since. Learned
advocate Mr. Rajput has also submitted that the investigation
has already been completed and charge-sheet has also been
filed. It is moreso submitted that the first information report
has been filed against total three accused persons, out of
which, one person has been shown as an absconding accused.
Learned advocate Mr. Rajput has further submitted that the it
is alleged in the complaint that upon the inputs received by the
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police, a raid was carried out at the given place where the
raiding party found the applicant-accused standing near the
place where the contraband was allegedly hidden and only on
that basis, the applicant-accused has been dragged into the
present offence. It is also submitted that the contraband Ganja
has not been recovered from the conscious possession of the
applicant-accused and the same was lying at some unknown
place and the applicant-accused has nothing to do with the
said contraband substance. It is submitted that there is a
reference of some financial transactions in the charge-sheet
papers, however, the said transaction were between the other
co-accused Munna Pandi and the absconding accused Narayan
@ Sada and not made by the applicant-accused. There is no
recovery or discovery at the instance of the applicant-accused
of any kind of contraband substance. Learned advocate Mr.
Rajput has further submitted that only on the basis of
assumption and presumption, the present applicant-accused
has been booked in the present case. The applicant-accused is
a young boy aged about 18 years nor directly or indirectly
involved in the commission of the crime. Under the
circumstances, learned advocate Mr. Rajput prays that the
applicant-accused may be enlarged on bail on any suitable
terms and conditions.
5. The learned APP appearing on behalf of the respondent-
State has opposed grant of regular bail looking to the nature
and gravity of the offence. Learned APP has submitted that the
role of the present applicant-accused is clearly spelt out from
the first information report itself. It is submitted that a huge
quantity of contraband Ganja, i.e, 305.860 kg which is
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commercial in nature was seized by the raiding party during
the course of the raid and, therefore, considering the
commercial quantity of Ganja recovered by the police, rigors of
Section 37 of the NDPS Act would also come into play. A huge
quantity of contraband Ganja was hidden by making cavity on
the metal sheet by the accused persons. The applicant-
accused was found available near the place from where the
contraband Ganja was recovered and, therefore, there is not
even a slightest doubt about the involvement of the present
applicant-accused in the present offence. 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.
7. Now, I would like to appreciate the decisions in regard to
grant or refusal of bail under the provisions of Section 37 of
NDPS Act.
8. The Hon'ble Apex Court, in the case of Union of India vs.
Niyazuddin Sk. and Anr, reported in 2017 (4) Crimes 384(SC),
while setting aside the order of the High Court granting bail to
the accused indicted for possessing commercial quantity of
contraband without discussing the two mandatory conditions
appearing in section 37 of the Act viz;(1) the court must be
satisfied that there are reasonable grounds for believing that
the person is not guilty of such offence & (2) the person is not
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likely to commit any offence on bail, while rejecting bail, in
para 7 of the judgment held as under:-
"(7) Section 37 of NDPS Act contains special provisions
with regard to the grant of bail in respect of certain
offences enumerated under the said section. They are:-
(1) In the case of person accused of an offence
punishable under section 19.
(2) Under section 24.
(3) Under section 27A and (4) of offences involving
commercial quantity.
The accusation in the present case is with regard to the
fourth factor namely, commercial quantity. Be that as it
may, once the Public Prosecutor opposes the application
for bail to a person accused of the enumerated offences
under section 37 of the NDPS Act, in case, the court
proposes to grant bail to such person, two conditions are
to be mandatorily satisfied in addition to the normal
requirements under the provisions of the Cr. PC or any
other enactment, (1) the court must be satisfied that
there is reasonable ground for believing that the person
is not guilty of such offence; (2) that person is not likely
to commit any offence while on bail."
9. In the case of Satpal Singh vs. The State of Punjab,
reported in 2018 (5) Supreme 705, the Hon'ble Supreme Court,
while rejecting bail to an accused indicted for the allegations of
possession of commercial quantity of contraband in head note
C & para 15 of the judgment held as under:-
(c) Narcotic Drugs and Psychotropic Substances Act,
1985 - Section 37, 22 and 29 - Instantly quantity of drug
commercial - Order could not be passed by High Court u/
s 438 or 439, Cr.PC without reference to section 37 and
without entering a finding on the required level of
satisfaction -
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Impugned order set aside.
15. Be that as it may, the order dated 21.09.2017 passed
by the High Court does not show that there is any
reference to Section 37 of the NDPS Act. The quantity is
reportedly commercial. In the facts and circumstances of
the case, the High Court could not have and should not
have passed the order under Sections 438 or 439Cr.P.C.
without reference to Section 37 of the NDPS Act and
without entering finding on the required level of
satisfaction in case the Court was otherwise inclined to
grant the bail. Such a satisfaction having not being
entered, the order dated 21.09.2017 is only to be set
aside and we do so."
10. The tenets of law enunciated by the Hon'ble Apex Court
in the above referred decisions make it abundantly clear that
in case of the indictment against accused regarding possession
of commercial quantity of the contraband, the court has to
render findings regarding, (i) the court must be satisfied that
there are reasonable grounds for believing that the person is
not guilty of such offence & (ii) the person is not likely to
commit any offence on bail, and if these conditions are not
satisfied by the court, the accused is not entitled to bail.
11. It is apposite to mention here that the Hon'ble Supreme
Court in a case law named N.C.B versus Krishan Lal, reported
in AIR 1991 SC 588 held that unless conditions prescribed
under section 37 of NDPS Act are not fulfilled, the court has no
discretion to relax these conditions in order to give the benefit
of bail to an accused. It is trite law by the authoritative
pronouncement by the Hon'ble Supreme Court of India in a
case law reported in AIR 2007 S.C 451 titled as Rajesh Ranjan
Yadav alias Pappu Yadav v.s CBI through its Director), "that the
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interest of society outweighs the individual interest of a
person, and the longer period of imprisonment cannot be a
ground for grant of bail".
12. The facts in the present case reveal that the recovery of
ganja was made on 27.09.2022 from the accused persons
including the present applicant-accused. The present applicant
was found available at the place where the contraband Ganja
was hidden in a cavity made behind the metal sheet and
therefore he came to be arrested on the spot along with the
other co-accused. The prosecution has relied on various
statements of the witnesses who are local residents of the
slum area from where the contraband substance was found. It
also relied upon the statements of the witnesses doing the
business of money transfer which state that money was
transferred in the account of absconding accused, namely,
Naranbhai @ Sada by accused Munna Congress Pandi. The
applicant-accused was also in contact with the absconding
accused which is backed by the evidence in the form of Call
Data Record collected by the Investigating Officer during the
course of investigation. Thus, all the circumstances and the
evidences available on record, to me for deciding the instant
bail application, point finger towards the involvement of the
present applicant-accused in the felony committed by him
along with the fellow accused.
13. Courts cannot lose sight of the fact that the menace of
the crime of smuggling of contraband drugs is on surge and
therefore, the perpetrators of the crime who are destroying the
society and younger generations rendering them incapacitated
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by falling prey to drug abuse must be dealt with iron hands.
The crime alleged against applicant-accused is against the
society and by his criminal activities, he is spoiling the young
generation of the country. Such types of offences are to be
dealt with strictly and with heavy hands. Shewing leniency in
such matters would be really a case of misplaced sympathy.
The criminal act of applicant-accused operating in a manner as
the smuggler of commercial quantity of contraband Ganja, is
destructive, and is aimed to destroy the social fiber of the
country, therefore, curtailment of his liberty is reasonable.
14. In the result, the current bail application, being devoid of
any merit, is disallowed and rejected. Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
