Gujarat High Court
Jitendra Gagdishbhai Patel vs State Of Gujarat on 30 September, 2024
NEUTRAL CITATION
R/CR.MA/15269/2024 ORDER DATED: 30/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 15269 of 2024
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JITENDRA GAGDISHBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AS TIMABLIYA for MS SONAL M SHARMA(9963) for the Applicant(s) No. 1
MR ADITYASINH JADEJA, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 30/09/2024
ORAL ORDER
[1.0] RULE. Learned APP waives service of notice of Rule for and
on behalf of the respondent - State of Gujarat.
[2.0] By way of present application under Section 439 of the
Code of Criminal Procedure, 1973 (for short "CrPC"), the
applicant is seeking regular bail in connection with FIR being CR
No.11210019231008 of 2023 registered with Icchapore Police
Station, Surat City for the offence under Sections 8(c) and
20(b)II(C) of the Narcotic Drugs and Psychotropic Substances Act.
[3.0] Heard learned advocate for the applicant and learned APP
for respondent - State of Gujarat.
[4.0] The case of the prosecution is that present applicant -
accused was intercepted on the basis of intelligence received and
found in conscious possession of 13.127 Kg of Charas worth
Rs.6,56,35,000/- without any pass or permit. In this regard, the
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R/CR.MA/15269/2024 ORDER DATED: 30/09/2024
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FIR came to be filed. After investigation, charge-sheet was filed
against the present applicant.
[5.0] Learned advocate for the applicant has submitted that the
the applicant is innocent and no muddamal has been recovered
from the conscious possession of the present applicant. Further,
without delving into the merits of the case, he has submitted
that though six months have passed after filing of the charge-
sheet, trial is not proceeding and therefore, he has requested to
grant regular bail to the applicant.
[6.0] Learned APP has vehemently opposed the present
application and submitted that present applicant is found in
conscious possession of the muddamal contraband. Hence, he
has requested to dismiss the present application.
[7.0] At the outset, as the applicant is found in conscious
possession of contraband, rigors of section 37 of the NDPS Act
would get attracted. Even, from the bare perusal of the
investigation papers, it appears that present applicant is found in
conscious possession of the contraband. In view of the law laid
down by the Hon'ble Supreme Court in the case of Union of India
v. Nawaz Khan reported in (2021) 10 SCC 100 (3 Judges' Bench),
as the applicant is found in conscious possession of the
contraband, his involvement is there and considering the rigors
of section 37 of the NDPS Act, it is very difficult to presume that
if the applicant is released on bail, then he would not involve in
commission of similar type of offence. At this stage, it is apposite
to refer to the decision of the Hon'ble Supreme Court in the case
of State of Kerala etc. vs. Rajesh etc. reported in AIR 2020 SC
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R/CR.MA/15269/2024 ORDER DATED: 30/09/2024
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721, wherein considering the provisions of Section 37(1)(b)(ii) of
the NDPS Act, it has been held that since the offence involves
recovery of the narcotic drug in excess of its commercial
quantity, the Court is required to record its satisfaction that
there are reasonable grounds for believing that the applicant is
not guilty of such offence and that the applicant is not likely to
commit any offence while on bail and the Court is required to
record a finding mandated under Section 37 of the NDPS Act
which is a sine qua non for grant of bail to the accused under the
NDPS Act. The contraband is found in the conscious possession of
the present applicant based on intelligence. Not only that from
seashore he has received number of packets of contraband and
then he has concealed the same near the Savali Beach and said
muddamal contraband is also discovered and then recovered at
the instance of present accused during the remand in presence of
panch witnesses by concealing the said contraband in huge
quantity he has circulated the same in market and based on such
intelligence he is caught red-handed with the conscious
possession of contraband.
[7.1] A Liberal approach in the matter of bail under the NDPS Act
is uncalled for. Section 37 of the NDPS Act starts with a non-
obstante clause and therefore, the provisions of Section 437/439
of the Code of Criminal Procedure would not be applicable with
regard to a person accused of an offence punishable under
Section 19 or Section 24 or Section 27A and also for offences
involving commercial quantity of contraband. The words
"reasonable grounds" also appear in clause (i) of Section 437 of
Cr.P.C. but the authority given to a High Court or a Court of
Session under clause (a) of Section 439 permitting release on bail
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of any person accused of an offence would be curtailed in view of
the stringent provision of Section 37(1)(b)(ii) of the NDPS Act.
The limitations prescribed under the NDPS Act on granting of bail
are in addition to the limitations under Cr.P.C. or any other law
for the time being in force. It is further contended that while
considering an application for bail with reference to Section 37 of
the NDPS Act, the Court is not called upon to record a finding of
not guilty. With reference to the phrase "reasonable grounds for
believing".
[7.2] Moreover, other aspect to be borne in mind is that the
liberty of a citizen has got to be balanced with the interest of the
society. In cases where narcotic drugs and psychotropic
substances are involved, the accused would indulge in activities
which are lethal to the society. Therefore, it would certainly be in
the interest of the society to keep such persons behind bars
during the pendency of the proceedings before the court 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.
[7.3] The seriousness of cases under the NDPS Act have to be
viewed like this 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
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are vulnerable: it causes deleterious effects and deadly impact on
the society,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, the Parliament in its wisdom, has made
effective provisions by introducing this Special provisions under
the Act.
[7.4] The Court while considering the application for bail with
reference to Section 37 of the Act is not called upon to record a
finding of not guilty. It is for the limited purpose essentially
confined to the question of releasing the accused on bail that the
Court is called upon to see if there are reasonable grounds for
believing that the accused is not guilty and records its
satisfaction about the existence of such grounds. But the Court
has not to consider the matter as if it is pronouncing a judgment
of acquittal and recording a finding of not guilty. in the case of
Babua v. State of Orissa, Hon'ble Apex Court has been pleased
to held that:
"3. In view of Section 37(1)(b) of the Act unless there are
reasonable grounds for believing that the accused is not
guilty of such offence and that he is not likely to commit any
offence while on bail alone will entitle him to a bail. In the
present case, the petitioner attempted to secure bail on
various grounds but failed. But those reasons would be
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insignificant if we bear in mind the scope of Section 37(1)(b)
of the Act. At this stage of the case all that could be seen is
whether the statements made on behalf of the prosecution
witnesses, if believable, would result in conviction of the
petitioner or not. At this juncture, we cannot say that the
accused is not guilty of the offence if the allegations made in
the charge are established. Nor can we say that the evidence
having not been completely adduced before the Court that
there are no grounds to hold that he is not guilty of such
offence. The other aspect to be borne in mind is that the
liberty of a citizen has got to be balanced with the interest
of the society. In cases where narcotic drugs and
psychotropic substances are involved, the accused would
indulge in activities which are lethal to the society.
Therefore, it would certainly be in the interest of the society
to keep such persons behind bars during the pendency of the
proceedings before the court, and the validity of Section
37(1)(b) having been upheld, we cannot take any other
view."
Further, in the present case, the applicant is found in
conscious possession of the contraband and therefore,
considering the rigors of section 37 of the NDPS Act and the law
laid down by the Hon'ble Supreme Court in the case of Bhawani
Singh vs. State of Rajasthan reported in 2022 SCC OnLine SC
1991 as well as in the case of State of Meghalaya vs.
Lalrintluanga Sailo and Another reported in 2024 SCC OnLine
SC 1751, the applicant is not entitled to any relief from this
Court.
[8.0] In view of the above, there being no merits in the present
application, same is hereby dismissed. However, learned trial
Court is directed to conclude the trial at the earliest preferably
within a period of six months from the date of receipt of the
present order by conducting the trial on day to day basis and the
applicant shall cooperate the learned trial Court in early disposal
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of the case. Rule is hereby discharged.
[9.0] It is made clear that the observations made in the present
order are tentative in nature and the learned trial Court shall
decide the case of the applicant on its own merits without being
influenced by the observations made in the present order.
(HASMUKH D. SUTHAR, J.)
Ajay
