Gujarat High Court
Bhartiben W/O Ratilal Patel vs Union Of India(Narcotics Control ... on 23 January, 2024
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R/CR.MA/10882/2023 CAV JUDGMENT DATED: 23/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 10882 of 2023
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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BHARTIBEN W/O RATILAL PATEL
Versus
UNION OF INDIA(NARCOTICS CONTROL BUREAU)
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Appearance:
MR AMINSAB K SAIYAD(5428) for the Applicant(s) No. 1
MR VO JOSHI(5883) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 23/01/2024
CAV JUDGMENT
1. The present application is filed under Section 439 of the
Code of Criminal Procedure, 1973, for regular bail in
connection with the FIR being NCB/AZU/CR-08/2021 registered
with the Narcotics Control Bureau, Ahmedabad Zonal Unit,
Ahmedabad of the offence punishable under Sections 8(c),
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22(c) and 29 of the NDPS Act.
2. Learned advocate Mr. V.O. Joshi appearing for the
applicant has submitted that the applicant-accused was
arrested on 29.01.2022 and since then she is in jail. Learned
advocate Mr. Joshi has also submitted that the investigation
has already been completed and charge-sheet has also been
filed. Learned advocate Mr. Joshi has further submitted that the
applicant-accused is not directly or indirectly connected with
the alleged offence as she does not know any of the accused
persons and she has never talked with those persons. It is
further submitted that as per the case of the prosecution, the
members of the raiding party has received secret information
on the basis of which they have carried out raid upon the
factory premises of the co-accused and during the raid,
contraband substance was recovered from the conscious
possession of the other co-accused persons and on the
strength of the same, FIR came to be lodged. It is also
submitted that subsequently during the course of
investigation, the name of the present applicant-accused has
come on surface. Learned advocate Mr. Joshi has further
submitted that the husband of the applicant-accused was the
proprietor of one company who passed away in the year 2021
and after the sad demise of the husband of the applicant-
accused, the applicant-accused has become the proprietor of
the said firm and on the strength of the said material, the
applicant-accused has been arraigned as an accused as the
contraband substance which was recovered from the other co-
accused was manufactured in the premises of the applicant-
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accused. It is submitted that the present applicant-accused
was at all not aware about the process of manufacturing of the
said drug and is not directly or indirectly connected with the
commission of the said offence. Learned advocate Mr. Joshi has
also submitted that the present applicant-accused has not
been named in the FIR and she has been arraigned as an
accused on the basis of the statement of the co-accused and
the said statement is inadmissible in law as per Section 25 of
the Evidence Act. Learned advocate Mr. Joshi has further
submitted that the present applicant-accused is a teacher
working with Shree Saraswari Public School. It is further
submitted that except the statement of the other co-accused,
no other specific role has been attributed to the applicant-
accused. Learned advocate Mr. Joshi has submitted that the
accused No.3 and accused No.4 have already been released on
bail by the Coordinate Benches of this Court and, therefore, on
the ground of principle of law of parity also, the present
applicant-accused is entitled to be released on bail. Learned
advocate Mr. Joshi has also submitted that the present
applicant-accused was not found in conscious possession of
the contraband substance and she was not present at the
factory when the raid was carried out by the police. Learned
advocate Mr. Joshi has submitted that nothing has been
recovered or discovered at the instance of the applicant-
accused. The applicant-accused is a lady accused aged about
53 years who is languishing in jail since the date of her arrest.
Under the circumstances, learned advocate Mr. Joshi prays that
there being merit in this application the same be allowed and
the applicant-accused be released on bail.
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3. Learned advocate Mr. Kartik Pandya appearing for the
NCB has vehemently opposed the present bail application and
submitted that a specific role of the present applicant-accused
is clearly spelt out from the body of the compilation of the
charge-sheet papers wherein it is clearly stated by the
Investigating Officer that the applicant-accused is involved in
the commission of the crime since very inception. Learned
advocate Mr. Pandya has further submitted that during the
period when the offence was committed, the present applicant-
accused was in constant touch with the other co-accused. The
raw material as well as the laboratory for production of the
contraband substance was provided by the present applicant-
accused. It is also found out during the course of investigation
that certain financial transactions also took place between the
present applicant-accused and the other co-accused persons
which clearly establishes the active participation of the present
applicant-accused in the commission of the offence. There
was a telephonic conversation between the applicant-accused
and the other co-accused during the period between 1 st April,
2021 and 17th June, 2021. It appears that there are 83 calls
between the present applicant-accused and Jaisingh and 13
calls with Prakash Patel. Learned advocate Mr. Pandya has
submitted that total 0.994 kgs of Mephedrone was seized by
the raiding party which is commercial in nature and, therefore,
rigors of Section 37 of the NDPS Act would come into play.
Therefore, considering the above stated factual aspects,
learned advocate Mr. Pandya prays that the present
application, being devoid of any merit, may be rejected and
the applicant-accused may not be enlarged on bail.
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4. 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.
5. 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--
(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."
6. In view of the gravity of the consequences of drug
trafficking, the offences under the NDPS Act have been made
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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.
7. 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
over and above, what has been prescribed under the Code.
8. 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:
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"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
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
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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."
9. 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
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."
10. In the instant case, the case of the applicant and her 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. She is not merely arrested for the
small quantity of contraband but has been implicated for her
role as being a part of a larger drug trafficking. Here, in the
present case, the applicant is charged for commercial quantity
and, therefore, her bail application needs to be decided as
per Section 37 of the Act. It prima facie appears from the
materials produced on record that the applicant-accused was
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indulged in the said illegal activity since very beginning and
she has provided her premises and the raw material to the
other co-accused for manufacturing the contraband substance.
Thus, looking to the quantum of punishment the applicant-
accused is likely to face, nature of accusation gravity of
offence and in view of Bar of Section 37 of the NDPS Act, I am
of the considered opinion that the applicant-accused is not
entitled for releasing on regular bail in the present case.
11. At the time of granting bail, the court has to consider the
role played by the applicant-accused in the commission of the
offence as well as gravity of offence and in the present case,
considering the role played by 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.
12. In view of the aforesaid discussion, 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.
13. Accordingly, the instant bail application fails and is
hereby rejected. Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
