Gujarat High Court

Asif Parchhavni @ Asif Afsarali Shaikh vs State Of Gujarat on 11 April, 2025

Author: A.Y. Kogje

Bench: A.Y. Kogje

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                            R/CR.MA/3135/2025                                                   ORDER DATED: 11/04/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
                                      AFTER CHARGESHEET) NO. 3135 of 2025

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                                        ASIF PARCHHAVNI @ ASIF AFSARALI SHAIKH
                                                         Versus
                                                   STATE OF GUJARAT
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                      Appearance:
                      P.S. TOLIA with NITISH M. NAIR with MEGHA M DAVE(8115) for the
                      Applicant(s) No. 1
                      MR. L. B. DABHI, APP for the Respondent(s) No. 1
                      ==========================================================

                           CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                                           Date : 11/04/2025

                                                               ORAL ORDER

1. This application is filed by the applicant praying for

successive regular bail in connection with an offence being

C.R.No.11210046201139/2020, which was registered with Puna

Police Station, District-Surat City, for offences under Sections 8(C),

22(C) and 29 of the Narcotic Drugs and Psychotropic Substances

Act, 1985.

2. This application is a successive regular bail application filed

in terms of the liberty reserved in favour of the applicant under

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order dated 13-09-2024, when the applicant had withdrawn the

application with a liberty to file a fresh after a period of one year,

if the trial does not progress satisfactorily.

3. Learned Advocate for the applicant has submitted that the

period of one year has not lapsed. However, on the basis of change

in the circumstance, the present application is filed, particularly on

account of grant of bail subsequently to one of the co-accused

recently in January 2025.

3.1 Learned Advocate for the applicant has submitted that all the

accused who have been charge-sheeted, have been released on

regular bail and therefore applying the ground of parity, the

applicant is also required to be enlarged on regular bail.

3.2 Learned Advocate for the applicant has submitted that the

role attributed to the applicant is quite similar to that of the other

co-accused, who are on bail. Moreover, the evidence gathered by

the investigating agency against the applicant is also identical. It is

submitted that it cannot be said that the applicant was in conscious

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possession of the drugs and thereafter also there is no recovery or

discovery of drugs from the applicant and therefore it is only the

contact between the co-accused and the applicant on some technical

evidence, is the only evidence against the applicant.

3.3 It is lastly submitted that the applicant is in custody since

four years and there is no possibility of trial being concluded in

immediate future. Learned Advocate for the applicant has therefore

relied upon various decisions of the Apex Court, where in view of

the prolonged trial, the Court has enlarged the applicant on bail.

He is referred to the decision in case of Sangram Sadashiv

Suryavanshi vs State of Maharashtra reported in 2024 INSC 899

wherein Hon'ble the Apex Court has held that the applicant is

entitled to be due to long incarceration and lack of progress of

trial.

3.4 Learned Advocate for the applicant thereafter took this Court

through various orders passed by the concerned Sessions Court as

well as Coordinate Benches of this Court by which co-accused

having enlarged on regular bail. He has referred to the decision of

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3rd Additional Sessions Judge, Surat. By this, accused Imtiyaz@

Mana Ismail Shaih has been enlarged on regular bail vide order

dated 26-04-2024 passed in Criminal Misc.(Bail) Application No.

2294 of 2021.

3.5 Learned Advocate for the applicant has thereafter referred to

decision of Coordinate Bench dated 24-02-2025 passed in Criminal

Misc. Application No.2125 of 2025. He has also referred to order

dated 20-07-2021 in case of accused; Ishak Ibrahim Saiyed passed in

Criminal Misc. Application No.8134 of 2021. By order dated

20-04-2021, the Coordinate Bench of this Court passed order in

Criminal Misc. Application No.2180 2021 enlarging Tausif @ Karam

Hamid Deewan. Reliance is also placed on order dated 15-11-2022

of the Coordinate Bench passed in Criminal Misc. Application No.

3938 of 2022 enlarging Faisal Abdul Rauf Shaikh on regular bail.

4. Learned APP has strongly objected to the grant of the bail by

submitting that the applicant is a part of an organized crime, which

is pushing a dangerous drug like Mephedrone into the society and

the applicant is a very important connect between the main

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facilitator of the narcotic substance from Mumbai to Surat. It is

submitted that the prosecution has sufficient evidence to bring on

record the role of the applicant as an important link for

transporting the drug till the end users. It is submitted that the

evidence in the nature of call detail records is also available, where

the applicant has talked to the main supplier on several occasions

and also talked to other co-accused, who are down in the chain

link. Learned APP has submitted that the role of the applicant and

the evidence against the applicant cannot be equated with that of

the accused, who are enlarged on bail and in fact, the main

supplier and other co-accused are already absconding and not

available to the investigation, as also the accused persons, who

have been enlarged on regular bail, are also not attending the trial

and the same is recorded in the rojkam of the trial Court.

5. Having heard the learned Advocates for the respective

parties and having produced the documents on record, an FIR came

to be registered with Puna Police Station, District-Surat City against

six accused persons, where the name of the applicant was not

disclosed. However, during the course of investigation, role of the

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applicant has appeared to be an intermediary between the supplier

and purchaser. Accused Mohsin is the supplier from Mumbai and

applicant is the first point of contact for bringing the narcotic

substance from Mumbai to Surat and from there, it is through the

present applicant, the narcotic substance was supplied to the other

accused, who acted as retailers.

5.1 The role attributed to the applicant as per the charge-

sheet of the accused persons of this offence, accused Imtiyaz @ Lal

S/o. Firoz Malek and accused Mohsin Munavar Khan were in

contact of each other. Therefore, after purchasing mephedrone drug

from Mohsin Munavar Khan, the said Imtiyaz S/o. Firoz Malek had

to give 50 grams out of the said drug to Ishak Ibrahim Saiyed,

Mahidharpura, Surat and he had to give 30 grams drug to Imtiyaz

@ Mana Ismail Shaikh, Surat and 20 grams drug to Tausif @

Karam S/o. Hamid Diwan, of Village: Karam, Taluka: Vagra,

District: Bharuch. Therefore, the accused Imtiyaz S/o. Firoz Malek

ordered for 100 grams of drug from the accused Mohsin Munavar

Khan and the accused Mohsin Munavar Khan asked his partner

absconding accused Faizal Shabbir Shaikh, Mahim, Mumbai to get

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the stock of drug from the absconding accused Aasif Parachhavani

@ Aasif Thane (Maharashtra) and to deliver the same at Palsana

and accordingly, the accused Faizal Shabbir Shaikh collected the

stock of drug from Aasif Parachhavani @ Aasif S/o. Afsarali Shaikh

and delivered the same to the accused Mohsin Munavar Khan at

Palsana and the said stock was lying with accused Mohsinh

Munavar Khan. The accused Mohsin Munavar Khan told his brother-

in-laws/witnesses Aakib and Asraf in the afternoon on 05/09/2020

that he has to go to Surat for some work and upon saying so, out

of the said brother-in-laws, Asraf brought his Innova Car No.GJ-16-

BB-5115 and Mohsin Munavar Khan and Aakib were made to sit

therein, they came near pump of Bharat Petroleum at Saroli and

there, the accused Imtiyaz @ Lal S/o. Firoz Malek called his friend

accused Mustufa Johar Vana, of Mahidharpura, Surat to collect the

stock of drug and he came on Two-wheeler Activa No.GJ-05-SQ-

4628 and Mohsinh Munavar Khan delivered 100 grams drugs to

Imtiyaz @ Lal. After receiving the said stock, while Imtiyaz @ Lala

and his friend Mustufa Johar Vana were carrying the same on the

Activa, they were nabbed with the stock of drugs at 16.00 o'clock

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at the time of passing by on public road located opposite Sardar

Palace on the west side out gate of Puna Sardar Market.

5.2 The investigation has evidence such as the call detail

records and connect of the applicant with Salman of Bombay, who

is a supplier and also with Mohsin, who is also the supplier. It is

pertinent to observe that both Salman and Mohsin are absconding

and not available for the trial.

5.3 The Court may now discuss the parity claimed by the

applicant with the bail orders passed by the Sessions Court as well

as Coordinate Bench of this Court, by which accused have been

enlarged on bail. This is a case which is of 100gms. of

Mephedrone, which is a narcotic substance. The drug Mephedrone

came to be added to the schedule of the narcotic substance under

the NDPS Act under the Notification dated 05-02-2015 issued by the

Ministry of Finance, Department of Revenue, the Drug Mephedrone

was added at Sr. No.110B after 110A. This Notification is

G.S.R.74(E) again with S.O.375(E), the Notification was issued

specifying quantity of 2gm. drawn to be small quantity and 50gm.

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to be commercial quantity. In the present case, when the quantity

of Mephedrone as per the charge-sheet is 100 gms., obviously the

case under the Act is that of a commercial quantity.

5.4 Once a case of commercial quantity is charged of,

Section-37 of the NDPS Act would set in. Section-37(1)(b) of the

NDPS Act, clause (i) and (ii) provides for twin conditions before

granting bail; the first being an opportunity to the prosecutor and

the second being where the prosecutor opposes the application, then

the Court has to satisfy itself that there are reasonable grounds for

believing that the person seeking bail is not guilty of such an

offence, and he is not likely to commit any offence while on bail.

5.5 With this background, the Court may examine the oral

orders on which reliance is placed by the applicant for claiming the

parity. In case of co-accused Imtiyaz Lala passed in Criminal Misc.

Application No.2125 of 2025, the Court does not find the discussion

with regard to the twin test as though categorical stand was taken

by the Public Prosecutor regarding recovery of 100 gms.

Mephedrone from the conscious possession. No primary conclusion

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is given that there are no reasonable grounds to believe that the

co-accused is not guilty of such offence.

5.6 Similarly, in case of co-accused; Ishak Ibrahim Saiyed

passed in Criminal Misc. Application No.8134 of 2021, there is no

discussion with regard to Section 37 of the NDPS Act and the

Coordinate Bench consider the case of the co-accused by treating

the quantity of Mephedrone drug only to the extent of 50 gms. on

the ground that the case of the prosecution is that the applicant

was to receive 50 gms. out of the total 100 gms. In yet another

oral order in case of Tausif @ Karam Hamid Deewan passed in

Criminal Misc. Application No.2180 2021, the Coordinate Bench

considered the case against such co-accused only to the extent of 20

gms. as the co-accused applicant therein was to receive 20 gms. of

Mephedrone drug out of total 100 gms. Where in case of Faisal

Abdul Rauf Shaikh passed in Criminal Misc. Application No.3938 of

2022, reference is made to Notification in the Gazette of India,

which pertains to Ganja and prescribing 20 kg. to be the

commercial quantity, whereas the drug which is in question in the

present case is of Mephedrone.

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5.7 The Sessions Court, while considering the case of

Imtiyaz@ Mana Ismail Shaih, has in its discussion, observed that

the riggers of Section 37 of the NDPS Act will not apply as the case

of the prosecution against this accused is to receive 20 gm. of

Mephedrone drug, which is less than the commercial quantity

prescribed.

5.8 The Court having examined the role attributed to the

applicant and the nature of evidence on record of the investigation,

particularly the call detail records of the applicant with the accused

persons and other co-accused. There is sufficient evidence to

implicate the applicant in the offence as one of the connecting link

and that to a crucial link in the network of pushing narcotic

substance Mephedrone in the market and therefore finds that there

is no reasonable ground to believe that the applicant has not

committed the offence.

5.9 In the opinion of this Court that for the reasons

accepted by the Coordinate Bench as well as the Sessions Court in

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enlarging the co-accused and the discussion made in the preceding

paras in connection with the oral orders, the Court is not inclined

to accept the parity as claimed by the applicant.

5.10 The applicant has also relied upon the order dated 17 th

January 2025 in case of Mustafa Johar Vana passed in SLP

(Criminal) No.15518 of 2024, enlarging the co-accused on regular

bail, which order is cited as a subsequent development to the

withdrawal of the bail application by the applicant. The order has

been passed only on the basis of the incarceration suffered by the

applicant therein, said accused; Mustafa was arrested on 06-9-2020

and his name was reflected as an accused from the very beginning.

Whereas the present applicant was apprehended later on, as his

name was disclosed during the course of investigation and the

applicant was arrested on 13-12-2020.

5.11 The Court has examined the status of the trial, wherein

it appears that there are total 35 witnesses as per the charge-sheet

placed on record by the applicant at Annexure-B, Page-12 and

reportedly 8 witnesses have been examined at this stage. The Court

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may refer to Special NDPS Case No.35 of 2020 pertaining to the

present offence, wherein it is recorded that the co-accused who

have been enlarged on bail particularly accused nos. 3, 4 and 6 are

not remaining present before the trial Court and therefore on

03-12-2024, non-bailable warrant has been issued. Accused No.5 has

absconded and necessary steps have been taken to arrest the

absconding accused. Over and above, two of the accused; Salman

and Mohsin are yet to be arrested in the present offence.

5.12 Thereafter, learned Advocate for the applicant has relied

upon the judgment of Apex Court in case of State by Intelligence

Officer (NCB) Bengaluru Zonal Unit, Bengaluru versus Pallulabid

Ahmad Arimutta and another reported in (2022) 12 SCC 633, to

support his contention about the details which are required to be

examined at the stage of trial and therefore in the present case

also, the evidence of C.D.R. may not come in way of bail

application for the present applicant. It may be pertinent to point

out that the aforesaid decision was rendered by the Apex Court,

when the prosecution approach the Apex Court for cancellation of

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bail, where the applicant was already on regular bail by the High

Court.

5.13 Another decision relied upon by the applicant is in case

of Javed Gulam Nabi Shaikh v/s. State of Maharashtra reported in

(2024) 9 SCC 813, substantial argument is that long incarceration

and delay in trial, the applicant would be entitled to get the bail.

5.14 In this regard, the Court may observe that this Court

while permitting withdrawal of the previous bail application and

giving liberty to approach after period of one year, had also

expedited the trial. Undoubtedly the period of one year after the

previous order dated 13-09-2024 is yet to expire, therefore relied

upon the decision of the Apex Court in case of X versus State of

Rajasthan and another reported in 2024 INSC 909 where in Para-14,

the Court has observed that in serious offences, once the trial

commences and witnesses are being examined, the trial Court or the

High Court should be loath in entertaining the bail applications of

the accused. In the present case, as is observed that the trial is

ordered to be expedited and 8 witnesses out of 35 witnesses, having

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been examined, the Court is not inclined to exercise the discretion

in favour of the applicant.

5.15 Following the decision of the Apex Court in case of Tarun Kumar v/s. Assistant Director, Directorate of Enforcement, reported in, AIR 2024 SC 169, the Hon'ble Supreme Court again in case of Sabita Paul v/s. State of West Bengal and another, in Criminal Appeal No.1772 of 2024, has held in para 9 as under:-

"9. Grant of bail based on parity is not a claim of right. The same is well- established. While applying this principle of parity, the Court is required, as was recently observed in Tarun Kumar v. Assistant Director Directorate of Enforcement, the Court is required to focus on the role attached to the accused whose application is under consideration. In the facts, the prime accused who is alleged to have initially conducted the blackmail, whom the complainant is said to have paid 'hush-money', has been granted bail and the role played by the instant appellant was only to further the alleged acts of her son. She has not acted independently, to further aggravate the situation."

5.16 By the aforesaid order, Hon'ble Supreme Court confirmed the grant of anticipatory bail. However, by referring to the decision in case of Tarun Kumar (Supra), the Court in para 9 has held that the Court is required to focus on the role attributed to the accused, whose application is under consideration.

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5.17 It would be appropriate to give due regards to the

submissions made by the learned APP bringing of notice of the

Court the grim situation that is prevailing, especially in the State of

Gujarat where offences under the provision of NDPS Act dealing

with the drugs like 'Ganja', Charas', 'Mephedrone' and

'Amphetamine' are on huge increase and the action is taken by the

Government Agency to deter the use from indulging into the

activities related to drugs which include the drug dealing, drug

peddling and drug consuming.