Gujarat High Court
Pragnesh Pravinbhai Thummar vs State Of Gujarat on 4 February, 2025
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R/CR.MA/348/2025 CAV JUDGMENT DATED: 04/02/2025
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Reserved On : 28/01/2025
Pronounced On : 04/02/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 348 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
No
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PRAGNESH PRAVINBHAI THUMMAR
Versus
STATE OF GUJARAT
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Appearance:
MR. KISHAN H DAIYA(6929) for the Applicant(s) No. 1
MR. SOHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent-State.
2. The present successive application is filed under Section
483 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for regular
bail in connection with the FIR being C.R. No.11210015200082
of 2020 registered with the D.C.B. Police Station, Surat of the
offence punishable under Sections 8(C), 22(C ) and 29 of the
NDPS Act.
3. The brief facts leading to the filing of the present
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application are that police official of the D.C.B. Police Station
received a tip-off that the accused, namely, Salman @ Aman
Mohammed Hanif Zaveri, a resident of Surat is transporting the
Narcotic Substance in his car and would be passing from
Kuvada Tea point to Surat City for selling the said Narcotic
substance and upon that information, the necessary procedure
had been carried out, and raid was conducted and one
accused, namely, Salman was caught by the police along with
the contraband substance Mephedrone worth 1011.82 grams,
and after following due procedure in accordance with law, the
FIR came to be filed.
4. Mr. Kishan Daiya, learned counsel for the applicant has
submitted that the applicant-accused was arrested on
18.10.2020 and since then he is in jail. Learned advocate Mr.
Daiya for the applicant has also submitted that the
investigation has already been completed and charge-sheet
has also been filed. He has further submitted that the
applicant-accused has not been named in the FIR, and he has
been falsely implicated in the present offence on the basis of
the statement made by the co-accused during the course of
investigation. Learned advocate Mr. Daiya has also submitted
that, in fact, the charge-sheet has been filed against in all total
19 persons, out of which, eight persons, having similar or
graver role than that of the applicant-accused, have already
been enlarged on bail. He has submitted that the contraband
substance was not found from the conscious possession of the
applicant-accused and he was not caught red-handed on the
spot along with the contraband substance. Learned advocate
Mr. Daiya has further submitted that there are in all total six
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supplementary charge-sheets have been filed in the present
case, and total 196 persons have been cited as witnesses, and
all those cases have been ordered to be consolidated and
heard together, which is indicative of the fact that the trial
would take considerable long period of time to conclude, and
keeping the applicant-accused behind the bar for such an
indefinite period of time, would be nothing but a pre-trial
conviction. The applicant accused came to be arrested on
18.10.2020 and since then he is in jail, i.e., for more than four
years, and considering the period of incarceration already
undergone by the applicant-accused, he is entitled to be
released on bail. Moreover, there is no recovery or discovery
at the instance of the applicant-accused. He has submitted
that the applicant-accused is an educated man, having
completed the study in Pharmacy with gold medal, having a
bright future in pharmacy industry. In such circumstances,
referred to above, learned advocate Mr. Daiya prays that there
being merit in this application, the same may be allowed and
the applicant-accused may be released on bail on any suitable
terms and conditions.
5. The learned APP Mr. Joshi appearing on behalf of the
respondent-State has opposed grant of regular bail looking to
the nature and gravity of the offence. Learned APP has
submitted that the role of the present applicant-accused is
clearly found out from the charge-sheet papers. Learned APP
Mr. Joshi has further submitted that the applicant-accused has
studied in Pharmaceutical and is the main manufacturer of the
contraband substance, and he is actively involved in such kind
of illegal activity. Learned APP has also submitted that during
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the course of investigation, the investigating officer has
collected ample and clinching evidences against the applicant-
accused which indicates his active involvement in the
commission of the crime. He has also submitted that for doing
the said illegal activity of manufacturing the contraband
substance, he has also taken one house on rent, and the
statement of the landlord has also been recorded by the
investigating officer during the course of the investigation,
wherein he has stated that the applicant-accused had taken
his house on rent by saying that he is manufacturing the drug
medicines to be used in severe diseases. The statement of the
persons from whom the applicant-accused purchased the
chemicals and other relevant materials have also been
recorded. The applicant-accused is the main manufacturer of
the contraband substance. There are also all possible chances
that the applicant-accused may run away from the trial
proceedings and, therefore, to secure his presence, he may not
be enlarged on bail. It is further submitted that a huge
quantity of 1011.82 kg Mephedrone has been recovered in the
present offence, and therefore, rigors of Section 37 of the
NDPS Act would come into play, and as such, this is a fit case
wherein discretionary power of this Court is not required to be
exercised in favour of the applicant-accused.
6. 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.
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7. 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
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."
8. 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:
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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.
9. 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 483 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
over and above, what has been prescribed under the Code.
10. 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
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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
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."
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11. Thus, what is evident from the above is that the offences
prescribed under the Act are not only a menace to a particular
individual but to the entire society especially, the youth of the
country. Such offences have a cascading effect and are in
vogue these days, thus destroying the capabilities and lives of
a substantial chunk of the population and trend has been
growing over the years. Thus, to prevent the devastating
impact on the people of the nation, Parliament in its wisdom
deemed it fit to introduce stringent conditions for grant of bail
under the Act. The Court must stay mindful of the legislative
intent and mandate of the Act while considering the question
bail in such matters.
12. As far as condition under Section 37(b)(i) is
concerned, there is no ambiguity in its interpretation. It
gives effect to the doctrine of audi alteram partem. Since
the crime is an act against the society, the legislature has
contemplated that the Public Prosecutor must be given an
opportunity to oppose a bail application under the Act.
Additionally, under Section 37(b)(ii) of the NDPS Act, the
court is not required to be merely satisfied about the dual
conditions i.e., prima facie opinion of the innocence of the
accused and that the accused will not commit a similar
offence while on bail, but the court must have „reasonable
grounds‟ for such satisfaction.
13. The term "reasonable grounds‟ under Section 37(b)
(ii) has been interpreted by the Hon‟ble Supreme Court in
the case of Union of India v. Shiv Shanker Kesari, (2007) 7
SCC 798. It was a case where an appeal was preferred
against the order granting bail under the NDPS Act by the
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High Court. The prosecution alleged that the raiding party
seized nearly 400 kgs of poppy straw from the possession
of the accused therein. The special court rejected the bail
while the High Court granted the bail on the ground that
the recovery was not from the exclusive possession of the
accused, but other family members were also involved.
The Supreme Court set aside the order granting bail. In
this context, it interpreted „reasonable grounds‟
under Section 37 of the Act, as under:
"7. The expression used in Section 37(1)(b)(ii) is
"reasonable grounds". The expression means
something more than prima facie grounds. It
connotes substantial probable causes for believing
that the accused is not guilty of the offence charged
and this reasonable belief contemplated in turn
points to existence of such facts and circumstances
as are sufficient in themselves to justify recording of
satisfaction that the accused is not guilty of the
offence charged. The word "reasonable" has in law
the prima facie meaning of reasonable in regard to
those circumstances of which the actor, called on to
act Signature Not Verified Digitally Signed
By:GAURAV SHARMA Signing Date:25.01.2022
17:34:17 reasonably, knows or ought to know. It is
difficult to give an exact definition of the word
"reasonable".
14. Thus, the term "reasonable grounds‟ is not capable of any
rigid definition, but its meaning and scope will be determined
based on the surrounding facts and circumstances of each
case. Thus, what may be reasonable in one set of facts may
not be reasonable in another set of facts. However, the
standard of satisfaction in such cases is more than mere
satisfaction on a prima facie opinion. Thus, the court before
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exercising its discretion for granting the bail must record the
reasonable grounds before granting bail to the accused.
15. 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
grant of bail under the NDPS Act have been prescribed."
16. Thus, the court must be conscious about the mischief
that is sought to be curbed by the Act and the consequences
that might ensue if the person accused of the offence under
the Act is released on bail. The court ought to be satisfied on
the basis of reasonable grounds discernible from the facts and
circumstances that the Petitioner is not guilty of offences that
the accused is charged with. Additionally, the court also needs
to be satisfied that the person so released will not commit the
offence while being on bail. Both the conditions are interlinked
because the legislature intends that in cases where there is a
possibility of commission of this grave offence under the Act,
the person need not be released. It is so because if the person
is released, he is most likely to repeat the offence, thus
impacting the society at large. Thus, to not give any leeway to
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the accused, the court has to be satisfied about the dual
conditions on reasonable grounds.
17. 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
weighing 1011.82 grams of Mephedrone and, therefore, his
bail application needs to be decided as per Section 37 of the
Act. As per the materials available on record, the applicant-
accused is the main manufacturer of the Mephedrone drugs,
who was manufacturing the contraband drugs and then
supplying it in the market through different persons. All
requisite procedures had also been followed as per the law
and, thereafter, the accused persons came to be arrested. 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.
18. Proceeding to the application of Section 37 in the instant
matter, the Public Prosecutor has been heard who has
vehemently opposed the bail petition with reasons. With
respect to the second condition prescribed thereunder, this
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Court is satisfied that there are no reasonable grounds, based
on the analysis of the provision in the foregoing paragraphs
and its application to the facts of the case, for this Court to
believe that the applicant is not guilty of the offence that he
has been charged with. Since this court is not satisfied on this
ground, there is no question to consider that the accused will
not commit the offence while on bail.
19. In view of the aforementioned facts, circumstances,
analysis and reasoning, keeping in mind the legal provisions
and the underlying intent as well as the mischief that is sought
to be curbed by the NDPS Act, this Court is of the 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.
20. Accordingly, the instant bail application stands rejected.
Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
