Gujarat High Court
Mustakim Mayuddin Belim vs State Of Gujarat on 20 February, 2025
NEUTRAL CITATION
R/CR.MA/2157/2025 ORDER DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 2157 of 2025
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MUSTAKIM MAYUDDIN BELIM
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the Applicant(s) No. 1
MR HK BAROT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 20/02/2025
ORAL ORDER
1) The present successive bail application is filed under Section 483
of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short "BNSS")
for regular bail in connection with FIR being
C.R.No.11191011240221 of 2024 registered with DCB Police
Station, Ahmedabad City, for the offence under Sections 8(c),
20(b)(ii)(c) and 29 of the Narcotic Drugs and Psychotropic
Substances Act (hereinafter referred to as "NDPS Act").
2) Heard learned advocate for the applicant and learned APP for
respondent - State of Gujarat.
3) Case of the prosecution case is that, when the raid was made by
the police at Godown No.C-061, Krish Industrial Park, Opp.
Hanuman Temple Road, GIDC Phase No.IV, Hathijan, Ahmedabad,
seven accused were found present in the godown unloading the
contraband from Eicher truck bearing registration No.OD-07-X-
2167 and upon verification, 97 parcels wrapped into separate
polythene bag were found containing total 194.850 Kgs. of Ganja
worth Rs.42,86,700/-, which according to accused persons brought
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by them without any pass or permit for illegal sale in the market. In
this regard, FIR came to be lodged.
4) Learned counsel for the applicant has submitted that, nothing is
found from conscious possession of the applicant. Whatever
contraband drug recovered is from a godown. However, merely
based on the statement of the co-accused, the applicant has been
arraigned as an accused. The applicant is not named in the FIR, but
during investigation, his name has been surfaced. Further, he has
submitted that, the applicant is not amongst those of seven
accused found and caught at the scene of occurrence by the Police
party. Therefore, he is not the author of 194,850 kgs. Ganja
recovered from a Godown and in a remand sought of those
arrested accused as to dropping of some contraband Ganja initially
at the house of the applicant and that he was to sell the said
contraband Ganja in the open market, the applicant is said to have
remained in telephonic contact with one co-accused Wasimkhan
Pathan, whereas what is exact contraband found from the house
of the applicant is 6.050 KGs of Ganja worth Rs.60,540/-. Only the
quantum to which at best, the applicant can be correlated to and
not the entire chunk of 194.850 KGs of Ganja found from a
godown. In absence of any, conspiracy shown to have hatched by
the applicant or his remaining in telephonic contact with any of the
seven accused, is being an intermediate quantity, by no stretch of
imagination. The applicant has no past antecedent . In absence of
any sufficient material establishing the livelink with the main
accused, from whose possession contraband drug was recovered,
present application deserves consideration.
5) Ld. APP appearing for the State has opposed the present
application on the ground that the applicant is involved in very
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serious offence, which is against the society. Though he is not
named in FIR, but during investigation, his participation is surfaced
and he is found in illegal activities. Recovered Ganja from the
godown is of commercial quantity. Sufficient material is found
which connects the accused in the offence and in collusion with
other accused, hatched criminal conspiracy and received huge
quantity of ganja from Orissa and out of the same, 6.050 Kgs.
Ganja was kept at the house of the applicant which was recovered
from the house of the applicant. Other co-accused are yet to be
arrested. Accused Nos.1 to 7 and 9 are also indulged in similar type
of activities. NCB has lodged a complaint against accused No.9,
who is already in jail and from the jail, he is maintaining the
network and importing contraband from Orissa to Ahmedabad. In
earlier offence, he is facing charge of 500 Kgs.
6) Ld. APP has further submitted that, the applicant was in constant
touch of accused Nos.1 to 6 and thereafter, with contact of driver
and cleaner of the vehicle, he was constant monitoring the whole
route of traveling. The applicant has played a vital role and after
receiving contraband Ganja from the co-accused, he is in supply of
network in various areas of the State. Five accused are yet to be
arrested. The applicant Considering the aforesaid fact, it clearly
establishes that the applicant was in constant touch of the co-
accused and monitoring the whole route of transportation.
Thereby, all the accused including the applicant involved in such
illegal activities of supplying and selling huge quantity of
contraband Ganja and therefore, rigors of Section 37 of the Act
would be applicable in the instant case. Therefore, he has prayed
not to entertain this application.
7) While deciding bail application, the Court has to consider the
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involvement of the accused in the alleged offence, the jurisdiction
to grant bail has to be exercised on the basis of the well settled
principles having regard to the facts and circumstances of each
case and the following factors are to be taken into consideration
while considering an applications for bail: (i) the nature of
accusation and the severity of the punishment and the nature of
the materials relied upon by the prosecution; (ii) reasonable
apprehension of tampering with the witnesses and threat to the
complainant or the witnesses; (iii) reasonable possibility of
securing the presence of the accused at the time of trial or the
likelihood of his abscondence; (iv) character behaviour and
standing of the accused and the circumstances which are peculiar
to the accused; (v) larger interest of the public or the State and
similar other considerations are required to be considered.
8) Having heard learned counsel for the respective parties and
perusing the record, it appears that, the application is successive
bail application and earlier application came to be dismissed.
Allegation against the applicant is that, the applicant in connivance
with co-accused have hatched criminal conspiracy and ordered
huge quantity of Ganja from Orissa to Ahmedabad for the purpose
of selling in various parts of the State. Though the applicant is not
named in the FIR, during investigation, his involvement is surfaced,
who obtained 5.060 Kgs of Ganja and kept in his house for selling
purpose. The applicant is owner of the said house. Accused No.5 is
driver and accused No.6 is cleaner. Present applicant and co-
accused Vasim both have received said contraband from the co-
accused. Out of the said contraband, some pockets received by
Vasim, who is on run and yet to be arrested. Total contraband is
huge quantity, which is in commercial quantity. Hence, the
applicant has been arraigned as an accused in aid of Section 29 of
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the NDPS Act. However, investigation under Section 193(9) of the
Act is going on and if the applicant grants bail, then possibility
cannot be ruled out to tamper with the evidence. Merely filing of
the chargesheet is never lesson the burden and entire syndicate
which indulged in narcotics trafficking is yet to be arrested. One
disturbing feature is that, one accused Mahalingam Shiva is a
history sheeter who is at present in Lajpore Jail, Surat, however, he
is operating the whole syndicate from jail. The applicant is also
involved in large scale conspiracy and therefore, in aid of Section
29 of NDPS Act, he has been arraigned as an accused.
9) Learned counsel for the applicant has mainly contended on ground
that, only 6.050 kgs. of Ganja was found from the house of the
applicant which is not commercial quantity, is not a ground to
grant bail. It is important to note that, the applicant was in
constant touch of driver and cleaner who transporting huge
quantity of Ganja, which according to accused persons brought by
them without any pass or permit for illegal sale in the market. In
this regard, FIR came to be lodged. Hence, the argument
canvassed by learned counsel for the applicant that the applicant
has been falsely enroped in the offence merely based on the
statement of the co-accused and no supporting material is
available, is not acceptable. One more aspect is required to be
considered that the recovered contraband Ganja from the godown
is of commercial quantity. Hence, rigors of Section 37 of the Act
would be applicable and therefore, applicant is facing serious
charge under Section 29 of the NDPS Act.
10) First blush argument of learned counsel for the applicant is that,
there was no link between the applicant and co-accused is not
acceptable considering the material collected during investigation.
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Even the said fact is also a matter of trial. So far as Section 29 of
NDPS Act is concerned, which relates to abetment in criminal
conspiracy.
11) The main argument of the learned advocate for the applicant is
that the quantity which is of commercial quantity was recovered
from the godown and not from him and therefore, the applicant
has no live link with the alleged offence. Perusing the call details
collected during investigation, it appears that present applicant
was in constant touch wit the driver and cleaner and other co-
accused through their respective mobile phones. Hence, argument
of learned advocate for the applicant that there was no any link
between the present applicant and co-accused is not acceptable
considering the material collected during investigation and it is a
matter of trial. If the accused are involved in illegal activity of
carrying contraband and abets an offence, then in aid of section
29(2) of the NDPS Act, clubbing of the said contraband is
permissible though obviously it is a subject of trial but this Court is
of prima facie considered view that present is a case of commercial
quantity and hence, rigors of section 37 of the NDPS Act would be
applicable, as the applicant facing charge under Section 29 of the
NDPS Act, which reads as under.
"29. Punishment for abetment and criminal conspiracy.
(1) Whoever abets, or is a party to a criminal conspiracy to
commit, an offence punishable under this Chapter, shall,
whether such offence be or be not committed in consequence
of such abetment or in pursuance of such criminal conspiracy,
and notwithstanding anything contained in section 116 of the
Indian Penal Code (45 of 1860), be punishable with the
punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to
commit, an offence, within the meaning of this section, who, in
India, abets or is a party to the criminal conspiracy to the
commission of any act in a place without and beyond India
which--
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(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to
narcotic drugs or psychotropic substances having all the legal
conditions required to constitute it such an offence the same
as or analogous to the legal conditions required to constitute it
an offence punishable under this Chapter, if committed within
India."
12) In the case of Union of India v. Nawaz Khan reported in (2021) 10
SCC 100 (3 Judges' Bench), the Hon'ble Supreme Court has
elaborately discussed the test, which the High Court should adopt
while granting bail, "reasonable grounds to believe", "conscious
possession" of contraband and principles for ascertaining the
same have been summarized. Merely the contraband was not in
conscious possession of present applicant does not absolve him of
the level of scrutiny required under Section 37(1)(b)(ii) of the
NDPS Act. 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. Herein, it
is very much established that the applicant is involved in supply
chain of ganja and he was in constant touch of co-accused.
13) 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
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authority given to a High Court or a Court of Session under clause
(a) of Section 439 permitting release on bail 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.
14) 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".
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 ganja/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.
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16) 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 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."
17) Considering the provisions of Section 37, limitation of grant of bail
under Section 37(b) of the Act where there are reasonable ground
for pleading that the applicant is not guilty of such offence and
that he is not likely to commit any offence while on bail.
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18) Considering the aforesaid provisions, as the applicant is having
past antecedents of similar nature of offence under the NDPS Act
and considering the rigors of Section 37 (b)(ii) of the Act,
possibility cannot be ruled out to indulge again in such type of
serious offence if he is released on bail.
19) 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, Mayur
Jamanbhai Ajani Vs. State of Gujarat, [SLP (Cri.) No.302/2025],
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. Further, in
view of the decision of the Hon'ble Supreme Court in case of State
of Kerala Vs. Rajesh, Criminal Appeal No.154-157 of 2020, as the
recovery contraband is Mefedrone Drug is of commercial quantity,
rigors of Section 37 of the Act would be applicable.
20) It is apt to refer to the decision of the Hon'ble Supreme Court in
the case of Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu &
anr, reported in 2012 (9) SCC 446.
21) Further, in the case of CBI vs. V. Vijay Sai Reddy reported in
(2013)7 SCC 452, the Hon'ble Supreme Court observed in
paragraph 34 as under:
"34. While granting bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction
will entail, the character of the accused, circumstances
which are peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial, reasonable
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apprehension of the witnesses being tampered with, the
larger interests of the public/State and other similar
considerations. It has also to be kept in mind that for the
purpose of granting bail, the Legislature has used the words
"reasonable grounds for believing" instead of "the evidence"
which means the Court dealing with the grant of bail can
only satisfy it as to whether there is a genuine case against
the accused and that the prosecution will be able to
produce prima facie evidence in support of the charge. It is
not expected, at this stage, to have the evidence
establishing the guilt of the accused beyond reasonable
doubt."
22) In view of the above as well as the fact that, further investigation
is going on, co-accused are yet to be arrested and recovered ganja
was of commercial quantity, application does not deserve any
consideration. Further, it is important to note that, co-accused who
is in jail, operating said network from the jail, hence, considering
the larger societal interest, present application is hereby dismissed.
However, learned trial Court is directed to expedite the trial. Rule
is hereby discharged. 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.
23) Ld. trial Court is directed to expedite the trial and complete it in
accordance with law as early as possible subject to convenience. If
the applicant is failed or unable to engage a counsel, the trial
Court shall appoint an amicus curie for the accused through District
Legal Services Authority.
(HASMUKH D. SUTHAR,J)
SUCHIT
