Gujarat High Court
Sabir Shaikh S/O Farukh Shaikh vs State Of Gujarat on 31 January, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 10203 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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SABIR SHAIKH S/O FARUKH SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR SS SAIYED(3690) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 31/01/2024
ORAL 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 C.R. No.NCB/AZU/C.R.NO.13 of
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2022 registered with the Narcotic Control Bureau Police
Station, Zonal Unit, Ahmedabad of the offence punishable
under Sections 8(c), 20(b)(ii) (c) and 29 of the NDPS Act.
2. Facts leading to the filing of the present application may
be summarized as under;
2.1 On 14.06.2022, at around 16:30 hours, the Junior
Intelligence Officer, Narcotics Control Bureau (NCB),
Ahmedabad Zonal Unit, namely, Mr. Atul Yadav had received a
tip-off that two persons namely Hemraj Thakare of
Maharashtra and Farhan Pathan of Surat are coming from
Ganjam (Odisha) in a Ashok Leyland Truck bearing Registration
No.HR-64-B-2691 carrying huge quantity of Ganja of 700 kg to
be delivered to the persons namely Farukh Shaikh, Sabir
Shaikh, Shakil Shaikh and Arun Gauda at Surat who will take
the delivery of the said contraband substance from Lajpore
Circle, Surat.
2.2 The said secret information was then passed over to the
Zonal Director, NCB, who upon receipt of such information,
directed Mr. Atul Yadav to form a team and take appropriate
action as per the provisions of the NDPS Act. Accordingly, a
team of officers and staff members of NCB was formed under
the supervision of Mr. Atul Yadav, Jr. Intelligence Officer, NCB,
Ahmedabad who then reached near the Lajpore Circle, Surat
and arranged a trap. Thereafter, Panchas were also called for
and persuaded about the said trap.
2.3 Thereafter, on 15.06.2022, at around 3:45 hours in the
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morning, it was noticed by raiding party that one Ashok
Leyland Truck was coming from Surat side on Surat-Navsari
Road bearing its registration number HR-64-B-2691 which was
as per the secret information received by the police. So, the
members of the raiding party tried to stop the said vehicle,
however, the driver of the vehicle turned the truck into an
open field. It was also noticed that one Renault Car bearing
Registration No.MH-46-AL-7082 followed the said truck to an
open field. Both the said vehicles stopped in the open field.
2.4 Then, the members of the raiding party along with the
Panchas reached to the open field in the Government vehicles
where Jr. Intelligence Officer Mr. Atul Yadav introduced himself
to the driver of the Ashok Leyland Truck and asked his name
upon which the driver of the truck told his name as Hemraj
Bhikan Thakare, a resident of Maharashtra and the other
person who was there in the said truck along with him was
introduced himself as Farhan Pathan which were according to
the secret information received by the police. After that,
Intelligence Officer Mr. Atul Yadav confronted the persons
sitting in the Renault Car and asked about their names, upon
which, they introduced themselves as Farooq Sheikh, Sabir
Sheikh, Shakeel Sheikh and Arun Gauda.
2.5 Then, Mr. Atul Yadav disclosed about the secret
information received by the police to those persons sitting in
the car and truck that they are illegally transporting the
Narcotic substance Ganja in the said truck whereupon the
driver of the truck admitted that the narcotic substance Ganja
is present in the truck and one of the persons sitting in the
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Renault Car, namely, Farooq Sheikh also admitted that they
had come to take delivery of the said contraband substance.
2.6 Thereafter, Mr. Atul Yadav inquired from the driver of the
truck about the quantity of the contraband article lying in the
truck whereupon the driver of the truck replied that total 18
plastic bags of Ganja is hidden in the cavity at the back side of
the driver cabin. Accordingly, search was carried out and total
18 white coloured plastic bags containing Ganja were found
from the cavity at the back side of the driver cabin. Thereafter,
all the accused persons were taken at the nearby Sachin Police
Station where necessary Panchnama was drawn. The total
quantity of the Ganja seized by the police was 700 kg.
Therefore, the first information report came to be lodged.
2.7 The applicant preferred an application at post charge-
sheet stage being Criminal Misc. Application No.793 of 2023
before the Ld. 5th Additional Sessions Judge and Special (NDPS)
Judge, Surat which has been rejected by the Sessions Judge
vide its order dated 10.02.2023. Hence, the present petition.
3. Learned advocate Mr. S.S. Saiyed appearing for the
applicant has submitted that the applicant-accused was
arrested on 15.06.2022 and since then he is in jail. Learned
advocate Mr. Saiyed has also submitted that the investigation
has already been completed and charge-sheet has also been
filed. Learned advocate Mr. Saiyed has further submitted that
as per the case of the prosecution, the applicant-accused was
the proposed receiver of the contraband article. It is submitted
that the contraband substance was found from the truck and
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the applicant-accused was not sitting in the truck. It is moreso
submitted that the contraband Ganja was not found from the
conscious possession of the applicant-accused and he has
been falsely implicated in the present offence only on the basis
of the confessional statement made by the other co-accused.
Learned advocate Mr. Saiyed has submitted that the
involvement of the present applicant-accused is found in the
commission of the offence solely on the ground that the
applicant-accused has made certain phone calls to the other
co-accused persons. Except that, there is no incriminating
material found against the applicant-accused. The applicant-
accused was not in contact with the persons sitting the truck
from whom the Muddamal article was found. It is further
submitted that the standing orders of the Central Government
have also not been complied with. The Panchnama is also not
done at the place where the Muddamal was intercepted by the
police. Learned advocate Mr. Saiyed has submitted that the
applicant-accused is a young boy aged about 21 years having
no past antecedents. To substantiate his submissions, learned
advocate Mr. Saiyed has relied upon one decision of the
Hon'ble Apex Court in the case of Rabi Prakash vs. The
State of Odisha, Special Leave to Appeal (Cri.) No.4169 of
2023. Under the circumstances, learned advocate Mr. Saiyed
prays that there being merit in this application the same be
allowed and the applicant-accused be released on bail.
4. 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
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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. It is
submitted that the members of the raiding party had received
specific inputs from the reliable sources that on this particular
date, from this particular route and in this particular vehicle,
the contraband article was brought into the City by the
accused persons and the proposed receiver of the contraband
article was also coming in the separate vehicle. Upon receipt of
such secret information, the members of the raiding party kept
watch in a particular area and as soon as they saw the said
truck, they immediately tried to stop the truck but the driver of
the truck sped away and, therefore, the police chased the
truck and intercepted the same. At that point of time, the
police noticed that one another vehicle, i.e, Renault Car was
running behind the said truck and, therefore, the said car was
also intercepted. It is submitted that more than 700 kg Ganja
was found from the conscious possession of the driver and
cleaner of the truck. Learned advocate Mr. Pandya has further
submitted that during the period of the alleged incident, the
present applicant-accused was in constant touch with the other
co-accused persons which is evident from the Call Data
Records collected by the Investigating Officer during the
course of investigation. It is submitted that the contraband
substance which has been recovered from the conscious
possession of the accused persons is more than 700 kg, which
is commercial in nature and, therefore, rigors of Section 37 of
the NDPS Act would come into play. Learned advocate Mr.
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Pandya has also submitted that the decision upon which
reliance is being placed by the learned advocate for the
applicant is not at all applicable to the case on hand as in the
said case, the period of incarceration spent by the accused is
more than three and a half years whereas in the present case,
the applicant-accused was arrested somewhere in the month
of June, 2022. Therefore, considering the above stated factual
aspects, the present application, being devoid of any merit, the
same may be rejected and the applicant-accused may not be
enlarged on bail.
5. 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.
6. 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
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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."
7. 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.
8. 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.
9. 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
trafficking and/or dealing in intoxicants
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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."
10. 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
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grant of bail under the NDPS Act have been prescribed."
11. 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
of 700 kg of Ganja and, therefore, his 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 indulged in the said illegal activity since very
beginning and he was supposed to receive the said contraband
article from the other co-accused. 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.
12. 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.
13. In view of the aforesaid discussion, this Court is of the
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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.
14. Accordingly, the instant bail application stands rejected.
Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
