Gujarat High Court
Mohammad Faizan @ Bhaijan Abdulkadar ... vs State Of Gujarat on 21 April, 2025
NEUTRAL CITATION
R/CR.MA/4723/2025 ORDER DATED: 21/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 4723
of 2025
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MOHAMMAD FAIZAN @ BHAIJAN ABDULKADAR PATEL
Versus
STATE OF GUJARAT
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Appearance:
ADILHUSHAIN M SAIYED(9723) for the Applicant(s) No. 1
MR HARDIK DAVE, PUBLIC PROSECUTOR assisted by MR HARDIK
MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/04/2025
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. 11191011230275/2023 registered with
D.C.B. Police Station, Ahmedabad City, for the offences
punishable under Sections 8(c), 22(C), 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
by the co-accused, his name has been impleaded as an
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accused. It is submitted that name of the present applicant
is not correctly mentioned and his address is not correctly
mentioned, where he resides. Nothing is recovered from
the conscious possession of the present applicant.
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.
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. During the investigation, his name is revealed. It is
submitted that the present applicant, known as Bhaijaan,
has been named based on the statements of co-accused
and the further statement of Accused No. 2, Sabir Hussain.
His mobile numbers have also been mentioned during the
investigation. The contraband, consisting of 96 grams and
35 milligrams of Mephedrone worth Rs. 9,63,500/-, was
recovered from the conscious possession of the accused,
and his residential address has been verified as correct. The
accused is currently absconding, and a warrant under
Section 70 of the Cr.P.C. has been issued against him. He is
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actively involved in illegal drug trafficking and maintained
constant communication with co-accused, having spoken
with them 81 times. Furthermore, it is revealed that the co-
accused and others, some of whom have past criminal
antecedents, had received contraband from the present
applicant on multiple occasions. The applicant himself is
also noted to have one prior criminal antecedent. It is
submitted that 96 grams and 35 milligrams of the drug
Mephedrone, valued at ₹9,63,500/-, has been recovered,
which is above the threshold of commercial quantity.
Accordingly, the rigours of Section 37 of the NDPS Act
would be applicable. 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.2 in column No.2 of the charge-sheet.
6.1. As the offence in question falls under the provisions of the
Narcotic Drugs and Psychotropic Substances Act, it is
pertinent to note that Section 37(1)(b)(ii) of the NDPS Act
becomes applicable in the present case. The alleged
contraband was recovered from the possession of a co-
accused and consists of 96 grams and 35 milligrams of the
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drug Mephedrone, valued at ₹9,63,500/-. The quantity
seized clearly falls under the category of "commercial
quantity," and therefore, the rigours of Section 37 of the
NDPS Act are attracted. In such circumstances, the case
warrants a different consideration, and it is not one where
the provisions of Section 482 of the BNSS, pertaining to
anticipatory bail, would ordinarily apply. At the outset, it is
also significant to mention that under the NDPS Act, there
exists a reverse burden of proof on the part of the accused,
which further narrows the scope for granting bail at the
pre-arrest stage. In this regard, reference is required to be
made upon the judgment of the Apex Court delivered in the
case of Dataram Singh Vs. State of Uttar Pradesh,
wherein the apex Court has observed thus:-
"A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences but
that is another matter and does not detract from the
fundamental postulate in respect of other offences."
That 96 grams and 35 milligrams of the alleged drug
Mephedrone, valued at Rs. 9,63,500/-, recovered are above
the commercial quantity and as such the rigour of Section
37 would be applicable in the instant case. The FIR depicts
prima facie involvement of the applicant. The charge-sheet
has been filed. Perusal of the FIR and other material placed
on record, it reveals that 96 grams and 35 milligrams of the
alleged drug Mephedrone was seized, which was to be
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delivered as per the instructions of the applicant herein.
Looking to the investigation papers, prima facie
involvement of the applicant is found.
7. At the outset, it is worth to mention that the applicant is
shown as absconder in Column No.2 of charge-sheet. 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 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 to
grant of pre-arrest bail in favour of the applicant.
8. Further, perusing the record, it appears that The co-
accused, Karan Arvindbhai Chauhan, was intercepted by the
police and found in possession of commercial quantity of 96
grams and 35 milligrams of the alleged drug Mephedrone,
valued at Rs. 9,63,500/-, along with a mobile phone worth
Rs. 10,000/-, Rs. 500/- in cash, and an Activa scooter valued
at Rs. 50,000/-, totaling Rs. 10,24,000/-. The Mephedrone is
alleged to have been procured from Mumbai by the earlier
arrested accused Sabir Hussain and other co-accused with
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the assistance of the present petitioner/accused Mohmand
Faijaan alias Bhaijaan and wanted accused Javed Sheikh.
The sale of this Mephedrone was approved by the
petitioner Mohmand Faijaan, who, along with accused Dr.
Dhwani Radheshyam Patel, was actively involved in the
drug business. All accused acted in coordination, aiding and
abetting one another for financial gain, with drug sale
proceeds being deposited into Karan Arvindbhai Chauhan's
Punjab National Bank account. During the investigation, 81
phone conversations were recorded between Mohmand
Faijaan and Karan Chauhan, and 9 conversations between
Mohmand Faijaan and Sabir Hussain alias Gotu. Call detail
records of both arrested and absconding accused are being
sought, and efforts to apprehend the wanted accused are
ongoing. Applicant is arraigned as an accused in aid of
Section 29 of NDPS Act.
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
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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. Learned advocate for the argued that the applicant is
arraigned as an accused No.2 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
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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
drug. For that custodial interrogation is required and having
one past antecedent.
12. In view of the decision of Hon'ble Apex Court in the (i)
State Rep. by the CBI V/s Anil Sharma reported in 1997
(7) SCC 187, (ii) Adri Dharan Das V/s State of W.B.
reported in 2005 (4) SCC 303 (iii) P. Chidambaram V/s
Directorate of Enforcement reported in AIR 2019 SC
4198, wherein the Hon'ble Supreme Court has held held as
follows:
"The legislative intent behind the introduction of Section 438
CrPC is to safeguard the individual's personal liberty and to
protect him from the possibility of being humiliated and from
being subjected to unnecessary police custody. However, the
court must also keep in view that a criminal offence is not
just an offence against an individual rather the larger societal
interest is at stake. Therefore, a delicate balance is required
to be established between the two rights - safeguarding the
personal liberty of an individual and the societal interest.
Ordinarily, arrest is a part of procedure of the investigation to
secure not only the presence of the accused but several other
purposes. There may be circumstances in which the accused
may provide information leading to discovery of material
facts and relevant information. Grant of anticipatory bail may
hamper the investigation. It may frustrate the investigating
agency in interrogating the accused and in collecting the
useful information and also the materials which might have
been concealed. Success in such interrogation would elude if
the accused knows that he is protected by the order of the
court. Grant of anticipatory bail, particularly in economic
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offences would definitely hamper the effective investigation.
Pre-arrest bail is to strike a balance between the individual's
right to personal freedom and the right of the investigating
agency to interrogate the accused as to the material so far
collected and to collect more information which may lead to
recovery of relevant information. In this view, it cannot be
said that refusal to grant anticipatory bail would amount to
denial of the rights conferred upon the appellant/applicant
under Article 21 of the Constitution of India.
Consequently, power under Section 438 CrPC being an
extraordinary remedy, has to be exercised sparingly; more so,
in cases of economic offences. Economic offences stand as a
different class as they affect the economic fabric of the
society. The privilege of the pre-arrest bail should be granted
only in exceptional cases. The judicial discretion conferred
upon the court has to be properly exercised after application
of mind as to the nature and gravity of the accusation;
possibility of the applicant fleeing justice and other factors to
decide whether it is a fit case for grant of anticipatory bail.
Grant of anticipatory bail to some extent interferes in the
sphere of investigation of an offence and hence, the court
must be circumspect while exercising such power for grant of
anticipatory bail. Section 438 CrPC is to be invoked only in
exceptional cases where the case alleged is frivolous or
groundless. Anticipatory bail is to be granted as a matter of
rule and it has to be granted only when the court is convinced
that exceptional circumstances exist to resort to that
extraordinary remedy".
Having regard to nature of allegations and stage of
investigations, held investigating agency must be given
sufficient freedom in process of investigation. Appellant not
entitled to anticipatory bail as the same would hamper the
investigation".
13. It is appropriate to refer to the judgment of the Apex Court
rendered in case of Pratibha Manchanda 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
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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."
13.1. 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 SCC OnLine SC 4073.
13.2. Further, keeping in mind Law laid down by the Hon'ble
Supreme Court in the case of Siddharam Satlingappa
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
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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."
14. 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
students of both sexes and the menace has assumed
serious and alarming proportions in the recent years.
15. 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 supplier 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
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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
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.
16. 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
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victims, who are vulnerable: it causes deleterious effects
and deadly impact on the society,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 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.
17. In view of the above decision and in view of the facts and
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,
Mephedrone 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.
18. Considering the question of public health and adverse
effect and impact in the society, in the larger interest of
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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. In case of State of Kerala Vs. Rajesh, the Apex
Court held that in view of the provisions of Section 37 (1)(b)
(ii) of the NDPS Act, since the offence involves recovery of
the prohibited substance in excess of the 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.
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.
18.1. Furthermore, if the applicant is indeed innocent, he ought
to have joined and cooperated with the police investigation
rather than absconding from the scene. However, he has
failed to do so and is currently evading arrest. This conduct
on the part of the applicant clearly indicates mens rea.
Innocent individuals generally do not display such unnatural
behavior in the ordinary course of events. In the present
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case, the applicant's conduct is a significant factor and must
be duly considered. It is well-settled that conduct may vary
from person to person; however, when the involvement of
the accused is prima facie established, and the allegations
are not found to be maliciously intended to defame or
tarnish the image of the applicant, the Court must exercise
its jurisdiction judiciously. It is important to emphasize that
the grant of anticipatory bail is neither an extraordinary
jurisdiction nor an absolute right of the accused. In this
context, reference may be made to the judgment of the
Hon'ble Supreme Court in State of Madhya Pradesh vs.
Ram Kishan Balothia, reported in (1995) 3 SCC 221.
19. 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 and this order is tentative in nature.
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
