Gujarat High Court

Mohammed Javed @ Fazun @ Faizan ... vs State Of Gujarat on 29 January, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

                                                                                                                  NEUTRAL CITATION




                           R/CR.MA/726/2025                                        ORDER DATED: 29/01/2025

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                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                        R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR
                                 BAIL - AFTER CHARGESHEET) NO. 726 of 2025

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                          MOHAMMED JAVED @ FAZUN @ FAIZAN SALIMBHAI
                                                Versus
                                        STATE OF GUJARAT
                      ===================================================
                      Appearance:
                      MR MUSAIB I SHAIKH(10565) for the Applicant(s) No. 1
                      MR. NIRAJ SHARMA, APP for the Respondent(s) No. 1
                      ===================================================
                       CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                                        Date : 29/01/2025

                                                           ORAL ORDER

1. Heard Mr. Musaib I. Shaikh, learned advocate

appearing for the applicant and Mr. Niraj Sharma, learned

Additional Public Prosecutor appearing for the respondent -

State.

2. By way of the present bail application under Section

439 of the Code of Criminal Procedure, applicant - accused is

seeking successive regular bail in connection with the C.R. No.

11191011200092 of 2020 registered with D.C.B. Police Station,

Ahmedabad for the offences punishable under Sections 29, 20(B),

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8 (C) of the N.D.P.S. Act registered with D.C.B. Police Station,

Ahmedabad, on 04.08.2020.

3. The applicant herein preferred Criminal Misc.

Application No.581 of 2021 which was withdrawn vide order

dated 16.2.2021 reserving the liberty. Thereafter the applicant

preferred another Criminal Misc. Application No.5205 of 2024

which was withdrawn vide order dated 3.5.2024 reserving the

liberty.

4. Mr. Musaib I. Shaikh, learned advocate appearing for

the applicant submitted that the charge-sheet came to be filed on

28.10.2020. The applicant is seeking regular bail, on the ground

that the sessions trial has commenced and the charges have also

been framed, however, till date, only one panch witness and

witness no.6 has been examined as on 31.03.2023. Thereafter,

the accused no.2 was absconding, since March, 2023 and the

trial has not proceeded satisfactorily. It is submitted that, since

past one year, only adjournments are sought by the prosecution

and on several occasions, though the request was made to

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separate the trial, no order to such extent was passed, rather the

applicant have been suffering from delay of such trial, and

therefore, the present second successive bail application is filed,

as only two witnesses have been examined.

4.1 Mr. Musaib I. Shaikh, learned advocate reiterated the

contentions as referred above and submitted that undue delay in

trial can be a ground for granting of bail, even to a person,

accused of the offences punishable under the N.D.P.S. Act,

despite Section 37 of the law, putting heavy limitation on the

grant of bail.

4.2 It is submitted that, the applicant herein have gone

detention of more than 4 years and the trial is not likely to be

concluded soon and the applicant is suffering from pre-trial

conviction.

4.3 In view of the aforesaid submissions, it is submitted

that the present application may kindly be allowed.

5. Mr. Niraj Sharma, learned Additional Public

Prosecutor appearing for the respondent - State has submitted

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that the applicant - accused has been arrested with muddamal

weighing Ganja of 20.800 k.g. from the spot, which is

commercial quantity. He has placed on record the report dated

29.01.2025 and submitted that the trial is proceeded with, on

regular basis and last witness was examined on 28.01.2025 and

the next date of hearing of the case is 20.02.2025. In all 22

witnesses, out of which, 7 witnesses have already been examined.

5.1 It is submitted that, considering the nature of offence

and as the trial is proceeded with, on regular basis, and

witnesses are examined from time to time, which is contrary, to

what is stated by Mr. Shaikh, learned advocate appearing for the

applicant and further submitted that, the present application may

not be allowed and the same be rejected.

6. Having heard the learned advocates appearing for the

respective parties and on perusal of the report placed on record

by the learned APP, it emerges that the applicant - accused has

been arrested on the spot with muddamal weighing Ganga of

20.800 k.g., which is a commercial quantity. Further, trial has

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already been commenced, wherein out of 22 witnesses, 7

witnesses have already been examined. Relevant details of the

witnesses examined are as under:

Witnesses Examined Sr. Witnesses Date No. Prafulchandra Kantilal Trivedi, Age. 51 (Panch) 17/11/2022 Residing at - 2088, Temple of Shri

Vishvakarma Prabhu, 21/01/2023 Near Upasna School, Dolatkhana, Sarangpur, Ahmedabad City.

Pukhraj Son of - Mohan Shankar Yogi, Age 19 (Person of Weighing Scale) 16/02/2023 Residing at - in the Temple of Bhairavnath

Scrap Shop.

31/03/2023 Near Hanuman Temple, Nr. Dhara Transport, Nr. Ramol Police Choki, Ahmedabad City.

Mr. S. J. Desai - P.S.I. -

(Complainant - on behalf of the prosecution) 3 06/08/2024 Service at - Crime Branch, Ahmedabad City.

Mr. R. B. Majmudar, Scientific Officer, Ahmedabad City.

4 ( gave primary opinion 30/08/2024 after after doing examination of the place) Mr. Chinu Aatmaram - Unarmed A.S.I. -

Buckle no. 8146 -

5 Service - At present Vadaj Po. Stn. 18/11/2024 Ahmedabad City (The then Writer Head - Crime)

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Mrs. R. J. Vaida - Scientific Officer Service at - F.S.L. Office, Gandhinagar. 6 ( carried out the examination of the samples 19/12/2024 of muddamal and gave opinion) - in Case no. DFS/EE/2020/NC/00222 Dt. 29/09/220 Mr. Manish - Nodel Officer, Relience Jio Infocom Limited, Gujarat. - Office at : 7 28/01/2025 Second Floor, Nr. Reliance Mart, Opp. Drive-In Cinema, Gurukul, Ahmedabad City.

7. In light of the aforesaid, it is apposite to refer to the

ratio laid down by the Hon'ble Apex Court, vide judgment and

order passed in Special Leave Petition (Criminal) No. 13378 of

2024, wherein, it is held in para-16 of the said order that, once

the trial commences, it should be allowed to reach to its final

conclusion which may either result in the conviction or acquittal

of the accused. It is only in the event if the trial gets unduly

delayed and that too for no fault on the part of the accused, the

Court may be justified in ordering the accused released on bail,

on the ground that the right of the accused to have a speedy

trial has been infringed.

8. At this stage, it is apposite to refer to the judgment

and order passed by the Hon'ble Apex Court in Special Leave

Petition (Criminal) No. 13378 of 2024, dated 27.11.2024, relevant

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paras-15 to 17 read thus:

"15. Over a period of time, we have noticed two things, i.e.,

(i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim.

16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that right of the accused to have a speedy trial has been infringed.

17. In the case on hand, the victim is yet to be examined.

Her mother who, according to the case of the prosecution, is an eye-witness has also not been examined so far. The High Court seems to have looked into few discrepancies in the FIR compared to the statement of victim recorded under Section 164 of the Code. This could not have been a good ground to exercise discretion in favour of an accused in a serious offence like rape."

9. This is a successive bail application wherein the

primary requirement is change of circumstances. In the present

application there is none. When the applicant withdrew the

earlier bail application two witnesses were examined reserving

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the liberty to approach this Court after two months. It emerges

from the perusal of record that, the trial has commenced and has

proceeded satisfactorily after the order passed by this Court dated

3.5.2024 in the Criminal Misc. Application No.5205 of 2024.

It is stated that the trial of the co-accused having been