Gujarat High Court
Ashrafkhan @ Samir Amanullakhan Pathan vs State Of Gujarat on 11 April, 2025
NEUTRAL CITATION
R/CR.MA/160/2025 ORDER DATED: 11/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 160
of 2025
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ASHRAFKHAN @ SAMIR AMANULLAKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR S D MOGHARIYA(11273) for the Applicant(s) No. 1
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 11/04/2025
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule on behalf
of respondent-State.
2. By way of the present application under Section 482 of the
of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short
"BNSS") / 438 of the Code of Criminal Procedure, 1973, the
applicant accused has prayed to release him on anticipatory
bail in the event of his arrest in connection with the FIR
being C.R. No.11191046240335 of 2024 registered with
Airport Police Station, Ahmedabad City, for the offences
punishable under Sections 8(c), 20(b), and 29 of the
Narcotic Drugs Psychotropic Substances Act, 1985
(hereinafter referred to as 'NDPS Act' for short).
3. Learned counsel for the applicant submitted that the
applicant is innocent and has not committed any offence as
alleged in the FIR. Merely on the basis of statement made
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by the co-accused, his name has been impleaded as an
accused. Learned advocate for the applicant has submitted
that present applicant is 40% disabled person. Now nothing
is required to be recovered and discovered from the
conscious possession from the applicant. He is not
connected in any manner with the alleged offence. He has
nothing to do with the co-accused. As per the case of the
prosecution 7.051 KG hybrid Ganja was found from the four
bags, which belongs to accused Nos. 1 to 4, who were
traveling from the Thailand and they were intercepted by
the police. During the interrogation, based on the
statement of co-accused, the present applicant is falsely
implicated in the offence as accused No.8, wherein role
attributed to the present applicant is that the present
applicant was going to taking the delivery of the Ganja.
Applicant is having no past antecedents. Based on the
statement of co-accused under sections 67 and 25 of the
Evidence Act, which is not admissible as weak piece of
evidence. Recovery is bogus and concocted, which is
affected to only accused Nos. 1 to 4. A false story was
cooked up at the behest of the police. Applicant is ready
and willing to join the investigation as prosecution has
failed to collect any evidence, which connect the applicant
with the offence. No any material is collected to show the
involvement of the present applicant and as alleged
contraband is an intermediate quantity and he has
requested to allow the present application.
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In view of the above submissions made by learned
counsel for the applicant, he prays this Court to allow
present application by enlarging the applicant on bail.
4. Per contra, the learned APP appearing for the respondent-
State has vehemently opposed the present application,
contending that the applicant is involved in a serious
offence and is specifically named in the FIR as an accused. It
is further submitted that the applicant is the kingpin and
mastermind of the alleged offence. Although the applicant
is 40% disabled, he is allegedly actively involved in the
offence. He is accused of facilitating the entry of individuals
from outside the country, particularly from Thailand, and of
importing hybrid ganja and other narcotic and psychotropic
substances, under the pretext of importing legitimate
goods. He is indulged in the drug trafficking offence. In
every trip, he was bearing the expenses of stay and
traveling of concerned persons and he was paying
Rs.10,000/- per trip. When police has received the
intelligence qua smuggling of gold, then accused persons
were intercepted. During the investigation, based on the
said intelligence, the 4 accused were found with the hybrid
Ganja of 7.0135 kg. The present applicant and other three
accused were present at the Airport to take the delivery of
the said Ganja. The applicant has hatched from one
Syndicate and he was a mastermind and found on the same
day with the constant touch of the co-accused persons. At
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the instance of the present applicant, the entire scam to
import the hybrid Ganja and the racket was found, which is
required to be unearth and for that, custodial interrogation
is required. Only with a view to earn the sympathy of his
disablement, it was stated that the present applicant is
40 % disabled persons, but during the investigation, it was
found that he was a kingpin and he was also driving the
vehicle. It is submitted that ample material is collected
during the investigation. It is submitted that present
applicant is on run and shown in Column No.2 as an
absconder and as other co-accused is released on regular
bail. In view of the above submissions, learned APP
requested to dismiss the present application.
5. Heard learned counsel appearing for the respective parties
and perused the material placed on record.
6. Having heard learned advocates for the respective parties
and having gone through the material available on record, it
appears that the present applicant is arraigned as an
accused No.8 and he is named in the FIR.
6.1. At the outset, it is worth to mention that the applicant is
shown as absconder in Column No.2. It appears that he is on
run. Hence, in view of the law laid down by the Hon'ble
Apex Court in case of State of Haryana vs. Dharamraj
reported in 2023 INSC 784; Lavesh vs. (NCT of Delhi)
reported in (2012) 8 SCC 730; Abhishek vs. State of
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Maharastra reported in 2022 (8) SCC 282 and Prem
Shankar Prasad vs. State of Bihar reported in 2021 SCC
OnLine SC 955 and Srikant Upadhyay and Others vs.
State of Bihar and Another reported in 2024 SCC OnLine
SC 282 and Serious Fraud Investigation Office vs. Aditya
Sarda reported in 2025 INSC 477, i am of the considered
view that this is not a fit case to exercise the jurisdiction in
favour of the applicant.
7. It appears that charge-sheet is filed accused Nos.1 to 7 are
arrested and they are already released on regular bail. So
far as parity is concerned, parity in regular bail and
anticipatory bail is different. The Court has to consider the
role of the accused. At the time of deciding the bail
application, the Court should refrain from appreciating the
evidence. However, considering the submissions made by
the learned advocates for the respective parties and the
fact and specific stand taken by the applicant to extend the
benefit of parity as the co-accused are released on regular
bail. Hence, this Court has considered the material collect
during the course of investigation with a view to examine
the applicability of parity. The reference is required to be
made in a cases of Tarun Kumar Vs. Asst. Director,
Directorate of Enforcement, 2023 INSC 1006 and Ramesh
Bhavan Rathod vs. Vishanbhai Hirabhai Makwana,
reported in AIR 2021 SC 221, wherein, the Hon'ble Apex
Court held that when deciding a bail application and
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extending the benefit of parity, the Court has to examine
the exact role attributed to the accused. If the accused
played a similar role, then the Court should extend the
benefit of parity. Merely some words or any observation
made in the order are not enough, such approach is
erroneous and inappropriate for considering the benefit of
parity. As co-accused are released on regular bail, the
applicant is not entitled to claim parity in anticipatory bail.
Since the co-accused have been released on regular bail and
the role of the present applicant is distinct and more
serious, the applicant is not entitled to claim parity in
seeking anticipatory bail. Considering the fact that
applicant is not entitled for anticipatory bail.
8. Now coming back to the merits of the case and the role
attributed to the present applicant, it appears that the
police has received intelligence by name, the accused
persons indulged in the smuggling and they were coming
with the gold, at that time 4 persons i.e. accused Nos.1 to 4
were intercepted and from-their conscious possession,
hybrid Ganja worth Rs.2,11,53,900/- was found, along with
94 mobile phones, Indian Currency, Currency of Bangkok
and Currency of UAE (Dir-ham). They were interrogated and
during the investigation, it was found that at the behest of
the present applicant, the people were engaged in the
pretext of business purpose. Applicant is involved in the
business of imported goods and for that purpose, he is
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importing the goods from the foreign countries. He is
making arrangement for the traveling process, traveling
expenses, stay arrangement and tickets and per trip he was
paying Rs.10,000/- and in the pretext of the said import the
goods, he used to import narcotics substance and thereby
he is indulged in the drug trafficking. The present applicant
along with the accused Nos.5 to 7 were present. They used
to take delivery of the said Ganja from accused Nos.1 to 4.
On the fateful day, they were apprehended from the
Airport and the present applicant keeping watch and
driving the vehicle. He was waiting outside the Airport,
when he came to know about the raid, he fled away from
the spot.
8.1. The accused No.8 i.e. present applicant is having affair with
the accused No.7 and he used to import and indulged in the
illegal drug trafficking. He was waiting outside the Airport
in a car. The present applicant and other co-accused are
running the Syndicate. Considering the aforesaid fact,
prima facie, involvement of the present applicant is
revealed. Merely intermediate quantity of hybrid Ganja is
intercepted. Intermediate quantity of hybrid Ganja is not a
ground to consider the case of the present applicant. Only
rigor of Section 37 would not attracted. Considering the
effect of the illegal business and continuous activity of
trafficking of drug and that to import the hybrid Ganja,
which is against the society. Criteria to decide the bail
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application under Section 438 of CrP.C/ 482 of BNSS and
under Section 439 of Cr.P.C. / 483 of BNSS is totally
different in NDPS offences.
9. So far the second limb of argument with respect to nothing
is recovered from conscious possession of the applicant is
concerned, reference is required to be made upon the
decision of the Apex Court in the case of Union of India Vs.
Md. Nawaz Khan, reported in (2021) 10 SCC 100, wherein,
the Apex Court has held that "in absence of possession of
the contraband on the person of the accused does not
absolve it of the level of scrutiny required under Section
37(1)(b(ii) of the Act. The Hon'ble Apex Court further has
been pleased to hold that, the term possession could mean
physical possession with animus, custody over the
prohibited substances with animus, exercise of dominion
and control as a result of concealment or personal
knowledge as to the existence of the contraband and the
intention based on such knowledge.
10. The present applicant was having the knowledge of the said
contraband, which may be construed as constructive
possession, at his behest, accused Nos. 5 to 6 and 7 was
going to receive the said contraband and accused Nos.1 to
4 were found from-their conscious possession, who were
working as peddlers at the behest of present applicant.
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10.1. So far as another argument is concerned, the applicant is
arraigned as an accused No.8 based on the statement of co-
accused, but it is needless to say that, during the
investigation, under Section 67 also statement of co-
accused is relevant is provided clue. Relying upon the
judgments of this Court rendered in the case of Mohmed
Salim Abdul Rasid Shaikh Vs. State of Gujarat, rendered
in 2001 (2) GLR 1580 as well as in the case of Dolatram
Tekchand Harjani Vs. State of Gujarat, reported in 2013
(3) GLR 2133, so far investigation is concerned, statement
of the co-accused is relevant and it provides the clue and
for that purpose, statement of co-accused is relevant and as
the serious offence is disclosed. In the case of Mohammed
Fasrin Vs. State (CR.MA/296/2014), the Apex Court has
observed as under:
"...The confessions of a co-accused gives a clue to the
investigating authorities as to how to investigate the
matter and against whom to investigate the matter.
Thereafter, it is for the investigating officers to collect
evidence against the said person who has been made by
the co-accused."
11. Hence, in such cases, the Court should not exercise its
jurisdiction granting anticipatory bail. Even, this is not only
a case, merely based on the statement of co-accused, the
present applicant is arraigned as an accused. Perusing the
statement of another witnesses and with the constant
touch with the co-accused, CDR, it appears that present
applicant is involved in the illegal activity and trafficking of
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drug and he has imported the said contraband material
from the foreign country. For that custodial interrogation is
required.
12. It is appropriate to refer to the judgment of the Apex Court
rendered in case of Pratibha Manchand Vs. State of
Haryana, reported in AIR 2023 SC 3307, wherein the Apex
Court has observed thus:-
"19. The relief of Anticipatory Bail is aimed at safeguarding
individual rights. While it serves as a crucial tool to prevent the misuse
of the power of arrest and protects innocent individuals from
harassment, it also presents challenges in maintaining a delicate
balance between individual rights and the interests of justice. The tight
rope we must walk lies in striking a balance between safeguarding
individual rights and protecting public interest. While the right to liberty
and presumption of innocence are vital, the court must also consider
the gravity of the offence, the impact on society, and the need for a fair
and free investigation. The court's discretion in weighing these interests
in the facts and circumstances of each individual case becomes crucial
to ensure a just outcome."
12.1. It would be apposite refer the decision of the Hon'ble Apex
Court in case of Anarul SK vs. The State of West Bengal
passed in Petition(s) for Special Leave to Appeal (Crl.)
No(s). 12621/2024, wherein it is observed that "The Grant of
anticipatory bail in cases involving Narcotic Drugs and
Psychotropic Substances (NDPS) is a very serious issue." It
would be apposite refer the decision of the Hon'ble Apex
Court in case of State by the Inspector of Police v. B.
Ramu reported in 2024 INSC 114.
12.2. Further, keeping in mind Law laid down by the Hon'ble
Supreme Court in the case of Siddharam Satlingappa
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Mhetre V/s State of Maharashtra and Others reported in
(2011) 1 SCC 694. Herein, I have gone through the material
available against the accused very carefully and it appears
that herein, no complaint has been made with view to
humiliating or tarnish the image of the present applicant.
Even in Jai Prakash Singh V/s State of Bihar and another,
reported in (2012) 4 SCC 379, Honourable Supreme Court
pleased to hold:
"Parameters for grant of anticipatory bail in a
serious offenceare required to be satisfied and
further while granting such relief, the court must
record the reasons therefore. Anticipatory bail
can be granted only in exceptional circumstances
where the court is prima facie of the view that
the applicant has falsely been enroped in the
crime and would not misuse his liberty."
13. 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
organized 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 sizable
section of the public, particularly the adolescents and
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students of both sexes and the menace has assumed
serious and alarming proportions in the recent years.
14. Ergo, considering the fact that, in present time, the trend of
only arresting peddlers while the kingpins, suppliers, and
big receivers of narcotics go scot-free is a deeply
concerning issue. As applicant is kingpin and mastermind he
used to various paddlers to import contrabands under
temptation .Herein, some of the major effects this has on
society such perpetuation of the Drug Network,When the
masterminds and financiers of drug operations remain
untouched, the drug trade continues to flourish. Peddlers
are easily replaced, but the real power and money lie with
those who are higher up the chain. Misplaced Focus of Law
Enforcement agency going to dismantle the actual
networks then custodial interrogation is mandatory,
masterminds are continuing their activities in pretext of
technical benefits and playing safe to escape from clutches
of the law hence intermediate quantity is seized it doesn't
mean court has to enlarge accused on anticipatory bail
more particularly considering nature of offence and role
attributes to accused,applicant is disable is nothing but only
eyewash and only for to coin sympathy by misleading the
court,in such cases pre arrest bail is granted then it erodes
Public Trust in the System: When people see the "big fish"
walk free, it damages faith in the legal and law
enforcement agency far reaching Socioeconomic
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Consequences of such illegal activities is nothing but an
amounts to Encouragement of Organized Crime and
unchecked survival of drug cartels allows organized crime
to grow, which can lead to more violence, deterioration of
public health,corruption, and instability in society.
15. 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 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 sizable 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.
16. In view of the above decision and in view of the facts and
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circumstances of this case, custodial interrogation of not
only the applicant, but all other suspect/s is therefore
imperative to unearth the truth. Over and above that,
hybrid Ganja is narcotic substance. The offence under 'the
NDPS Act' committed by the accused not only ruins an
individual but the whole family by an individual and the
youth of the country as a result. It is not the case like
murder of one or two or more but it is more of youth itself
of the country, which cannot be tolerated.
17. Considering the question of public health and adverse
effect and impact in the society, in the larger interest of
justice, the Court has to struck down the balance between
the personal liberty and larger interest of the society.
Anticipatory bail in the NDPS offences that to against the
society, this Court is of the considered view that 40%
handicapped is only with a view to earn the sympathy from
the court, the said defence is put forward. Though he is
handicapped, but he is able to manage the entire affairs
and leading the syndicate and to get rid off from clutches
of law used to import intermediate quantity to ragged out
from the rigor of Section 37 of the NDPS Act. Hence, merely
contraband of intermediate quantity is not a ground or
conferred absolute right of applicant to enlarged or claim
to enlarged anticipatory bail as of right. Considering the
aforesaid fact, if he released on bail, then adversely effect
the case of the prosecution, which amounts to death . In
view of above, if the present applicant is/are protected with
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this order, this Court is of the considered view that if the
present accused is equipped with protective order, it would
obviously affect the case of the prosecution and adversely
the qualitative investigation. This is not a fit case, wherein
accused is falsely enraged in the offence and it appears that
there is no frivolity, with a view to tarnish his image.
Considering the fact that the custodial interrogation is
required.
18. For the foregoing reasons and considering the law laid
down in the above cited decisions of this Court as well as
the Hon'ble Apex Court, I am not inclined to exercise
discretion in favour of the applicant. Accordingly, present
application is hereby dismissed. Rule is discharged. It is
made clear that this Court has not delve into the merits of
the matter and the views expressed in the order are prima
facie only.
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
