Gujarat High Court
Nirmit Krishnakumar Jadeja vs State Of Gujarat on 9 July, 2025
NEUTRAL CITATION
R/CR.MA/9084/2025 ORDER DATED: 09/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 9084 of 2025
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NIRMIT KRISHNAKUMAR JADEJA
Versus
STATE OF GUJARAT
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Appearance:
MR SI NANAVATI, SR. ADVOCATE with MR DARSHIT H RAVAL(11887) for the
Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 09/07/2025
ORAL ORDER
Learned APP waives service of notice of Rule for and on behalf
of the respondent - State of Gujarat.
[1.0] The present third 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.11210070240784 of 2024 registered with Bhestan Police Station,
District Surat for the offence under Sections 8(c), 22(c) and 29 of the
Narcotic Drugs and Psychotropic Substances Act (hereinafter referred
to as "NDPS Act").
[2.0] Heard learned advocate for the applicant and learned APP for
respondent - State of Gujarat.
[3.0] Case of the prosecution is that officers of DCB Police Station on
the basis of secret information, caught the accused No.1 Nirmit
Krishnakumar Jadeja (present applicant), who was carrying illegally
Mephedrone Drugs, weighing 80.26 Grams, valued at Rs.8,02,600/- and
upon further enquiry, it was learnt that the said quantity of MD drugs
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was supplied by one Jay Makwana (accused No.3) at the instance of
accused Babu (accused No.2). In this regard, FIR came to be filed.
Thereafter, the statements of the police officials and other witnesses
have been taken. The samples of drug was sent to FSL Gandhinagar
for analysis and it was opined that, it was Mephedrone, which is
included in the NDPS Act.
[4.0] Learned Senior Counsel Mr. S.I. Nanavati assisted by learned
advocate Mr. Darshit Raval appearing for the applicant has submitted
that present applicant is falsely enroped in the offence. Earlier two
applications seeking regular bail were filed but same were disposed of
as withdrawn as the Court was not inclined and liberty was reserved to
file fresh application if the trial does not progress substantially.
Hence, the applicant has approached this Court by way of present
third successive application. Further, he has submitted that out of 40
witnesses, only 4 witnesses have been examined. Present applicant
was found in the possession of said contraband but said contraband
was for his personal consumption. He has not indulged in any illegal
activity or drug trafficking. Present applicant has purchased the said
contraband for his personal use. As per the case of prosecution, from
one Wasim, who is yet to be arrested, one Shri Krishna Ghanshyam
Swane had purchased the contraband through Aditya and from Jay he
had purchased the said contraband. Other two co-accused are
released by the coordinate Bench and hence, on the ground of parity,
the applicant is required to be released on regular bail as allegation
against the applicant is only of consumption. Co-accused Ronak from
whom present applicant had purchased the contraband is already
released on bail and hence, has requested to extend the benefit of
parity. Even otherwise, the commencement of trial will take its own
time and except confessional statement at the time of raid, no any
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material is collected. Hence, in absence of any material and there
being no past antecedent, he has requested to allow the present
application on the ground of delay. Further, present applicant is not a
supplier and no further evidence is required to be collected from the
present applicant. Hence, question of applicability of rigors of section
37 of the NDPS also does not arise as contraband was for personal use
and consumption. Even, considering the delay in trial, he has
requested to allow the present application.
[5.0] Learned APP has opposed the present applicant on the ground
that present applicant is not entitled for the benefit of parity. Present
applicant was found in conscious possession of the contraband and
rigors of section 37 of the NDPS Act is applicable. Learned advocate
for the applicant has argued that the said contraband was for
consumption but as per section 8(c) of the NDPS Act, consumption
itself is an offence. 80.26 gram of contraband is found from the
conscious possession of the applicant however, even if it is believed
that contraband was for consumption of applicant then also, the
quantity of contraband recovered from the applicant is commercial
quantity and hence, rigors of section 37 of the NDPS Act would be
applicable.
[5.1] So far as benefit of parity as claimed by the applicant on the
ground of release of co-accused Ronak is concerned, while enlarging
the said co-accused Ronak on bail, coordinate Bench has not
considered the rigors of section 37 of the NDPS Act. Not only that,
nothing was found from the conscious possession of co-accused
Ronak and no other material except statement of co-accused is
available which is substantially mentioned in paragraph 5 of the said
order. On the contrary, while disposing the application of co-accused
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Shri Krishna Ghanshyam on merit, this Court has discussed the role of
present applicant (accused No.1) has received the contraband from
one Babu and thereafter, he has received from one Jay the
commercial quantity was recovered from the present applicant -
accused No.1 and there was a live link for which CDR is collected
during the investigation and financial transaction and money
transaction with co-accused Aditya and other co-accused is also found
and there is a live link and acceptable evidence is collected during the
investigation. Hence, no case is made out to consider the present
application in absence of any change in circumstances more
particularly considering the rigors of section 37 of the NDPS Act.
[5.2] Further, she has refuted the argument canvassed by the learned
Senior Advocate for the applicant that present applicant is having no
past antecedent and submitted that same is not a ground to come out
from the rigors of section 37 of the NDPS Act and possibility of
tampering with evidence if released on bail cannot be ruled out.
Further, if the applicant used to purchase commercial quantity for
consumption then the possibility of his being involved in drug
trafficking and to involve in similar type of activity cannot be ruled
out. So far as other procedural aspect is concerned, it is matter of trial
and so far as delay in trail is concerned, the prosecution after the
direction of this Court had given the list of material witnesses and
examination of witnesses is going on and 5 witnesses have been
examined while PW-5 was being examined, at that time, the present
applicant has raised objection qua recording of the evidence and he
has filed the revision application and sought an adjournment and due
to this reason, entire trial is protracted. Hence, present applicant
cannot take undue advantage of the his own wrong as the accused
persons in collusion and connivance of each other are trying to take
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advantage of their own wrong. Further, the applicant is arrested on
12.07.2024 but he has engaged an Advocate only on 14.11.2024 and
thereafter, the trial was in progress and hence, question of delay in
trial does not arise and in absence of any change in circumstances, she
has requested to dismiss the present application.
[6.0] Heard learned Senior Advocate for the applicant and learned
APP for the respondent - State of Gujarat.
[7.0] Perusing the investigation papers and charge-sheet papers, it
appears that on 02.07.2024, while the complainant Mr. Gamit, PSI was
on patrolling to maintain law and order on the festival of Rathyatra, at
that time, applicant - accused No.1 was found from conscious
possession of Mefedrone Drug weighing 80.26 gms., valued at
Rs.8,02,600/-, i.e. commercial quantity and arranged for two panchas
and in their presence, mandatory procedure under the NDPS Act was
followed. In this regard, FIR came to be lodged. During investigation, it
was surfaced that the accused No.1 has received said contraband from
one Babu and said Babu had received from one Jay Makwana. During
the course of investigation and interrogation, it was found that
accused Jay Makwana has received contraband from accused Aditya
and he has received from one Wasim, who is yet to be arrested. Thus,
prosecution has established the supply chain of contraband drug with
another accused. Sufficient material including the CDR and bank
details are collected which connects the whole chain of supply by the
accused persons and live link of accused is shown and material is
collected during the investigation. The certificate also issued in
compliance of Section Section 65(4)(c) of the Indian Evidence Act/
Section 63 of BNSS is issued. Hence, the arguments canvassed by
learned counsel for the applicant that the applicant has been falsely
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enroped in the offence merely because he has received contraband
only for the consumption purpose as per the case of prosecution
without there being any supporting material, is not acceptable.
[7.1] One more aspect is required to be considered is that the
recovered contraband MD drug from the conscious possession of
applicant - accused is of commercial quantity. Hence, rigors of Section
37 of the Act would be applicable and therefore, applicant is facing
serious charge under Sections 8(1), 22(c) and 29 of the NDPS Act.
[8.0] 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 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.
[8.1] 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".
[8.2] 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,
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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 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.
[8.3] 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.
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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."
[8.4] 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.
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.
[8.5] 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 recovered contraband Mefedrone
Drug is of commercial quantity, rigors of Section 37 of the Act would
be applicable.
[9.0] Further, to consider the argument canvassed by the learned
Senior Advocate for the applicant that applicant is entitled to bail on
the ground of delay in trial aspect, the report of learned Sessions
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Judge was called for and perusing the same it appears that 5
witnesses are examined and prosecution has also submitted the list of
material witnesses but while recording the evidence, present
applicant has raised objection and by way of revision application
challenged the said order due to which the trial is prolonged. Hence,
on the ground of delay in trial, present applicant is not entitled for any
relief in absence of any change in circumstances. Earlier, after
withdrawal of earlier two applications, learned Senior Counsel has
failed to point out any material change in circumstances and no one
can take advantage of his own wrong. Considering the facts and
circumstances of the case, gravity of offence, severity of punishment
as well as the law laid down in cases of Ram Govind Upadhyay vs.
Sudarshan reported in 2002 (3) SCC 598, discretion cannot be
exercised in favour of the applicant - accused. In the case of Ram
Govind Upadhyay (Supra), the Hon'ble Apex Court has held that "the
accused has right to make successive application for grant of bail, but
while entertaining a subsequent bail application, it is the duty of Court
to consider the reasons and grounds, which persuade to take a view
different from the one taken in the earlier application". From the record,
it appears that there is no reason or ground which can persuade this
Court to take a view different from the earlier application. The
offence against the applicant is very serious in nature and earlier
applications after filing of the charge-sheet have not been
entertained. Hence, question of delay in trial does not arise. Even,
learned APP has assured that prosecution is ready to expedite the trial
and ready to examine the witnesses on day to day basis.
[10.0] Now, coming back to the next argument qua extending
benefit of parity, considering the role of the present applicant and law
laid down by the Hon'ble Apex Court in the case of Ramesh Bhawan
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Rathod vs. Vishanbhai Hirabhai Makwana reported in AIR 2021 SC
2011 as well as in the case of Tarun Kumar vs. Assistant Director,
Directorate of Enforcement reported in 2023 INSC 1006, argument
as regards parity is not acceptable. Herein, the role of co-accused
Ronak, who has been released on bail, was different. Except the
statement of co-accused, no material was available and nothing was
found from the conscious possession of the said co-accused. Herein,
from the conscious possession of the present applicant, the
contraband was found and that too 80.26 gram which is obviously
commercial quantity. The evidence of monetary transaction with co-
accused is also found and cross-entry in the statement of account is
also found and learned trial Court has also noted the aforesaid fact
that there was a live link between the applicant herein and other co-
accused, who were considered in absence of any live link. Even
otherwise, it is needless to say that while considering the application
of co-accused Ronak, Court has not considered the rigors of section 37
of the NDPS Act though, it is mandatory requirement to adhere to the
statutory requirement while granting bail in the case of commercial
quantity under the NDPS Act. Herein, in the case on hand, from the
conscious possession of the applicant, muddamal was recovered and
hence, rigors of section 37 of the NDPS Act would be applicable in
view of the decision of the Hon'ble Supreme Court in the case of State
of Meghalaya vs. Lalrintluanga Sailo and Another reported in 2024
SCC OnLine (SC) 1751. Further, on two different dates, Rs.50,000/-
each and in total Rs.1,00,000/- was transferred from the account of
the present applicant to the co-accused who are supplier of said
contraband. Hence, it reveals from the investigation papers that there
is live link of the present applicant with the drug peddler and the
persons who are indulged in drug trafficking. Hence, the argument
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canvassed by the learned Senior Advocate appearing for the applicant
that rigors of section 37 of the NDPS Act will not be applicable, is not
acceptable and there is substance in argument canvassed by the
learned APP.
[11.0] Further, it is worth to mention that while enlarging co-
accused on bail, rigors of section 37 of the NDPS Act are not
considered and hence, applicant is not entitled to get benefit of parity
on that count also. It is true that rigors of section 37 of the NDPS Act
is always not a ground to refuse bail in case of delay in trial but herein,
considering the peculiar facts of the case on hand, as the applicant is
facing charge under Section 20(c) of the NDPS Act and as applicant is
facing charge wherein contraband involved is of commercial quantity
attracting rigors of section 37 of the NDPS Act and as punishment for
the said offence is not less than 10 years but it may extend upto 20
years and shall also be liable to fine which is not less than one lakh
rupees but may extend to two lakh rupees. Individual rights of accused
are undoubtedly important but equally important was societal
interest for bringing offender to book and for system to send right
message to all in society be it law-abiding citizen or potential
offender. Criminal justice delivery system could not be allowed to veer
exclusively to benefit of offender making it uni-directional exercise. In
this regard, reference is required to be made to the decision of the
Hon'ble Supreme Court in the case of Varinder Kumar v. State of
Himachal Pradesh reported in (2020)3 SCC 621. Further, herein case
on hand, rigors of section 37 of the NDPS Act is applicable, trial is in
progress, if applicant is released on bail it seems difficult to secure the
presence of accused during the further proceedings and possibility to
repeat or indulge in similar nature of offence in view of law laid down
by the Hon'ble Apex Court in case of Union of India vs. Abdul Momin
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reported in (2005) 13 SCC 144 and Union of India vs. Saurabh
Chatterji reported in (2006)9 SCC 759. Herein, 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 (Supra) as well
as in the case of Lalrintluanga Sailo and Another (Supra), the
applicant is not entitled to any discretionary relief from this Court.
[12.0] It would be profitable to refer to the decision of the
Hon'ble Supreme Court in the case of Ash Mohammad vs. Shiv Raj
Singh alias Lalla Babu and Another reported in (2012) 9 SCC 446 is
also required to be referred to wherein it has been held that the
concept of liberty is not in the realm of absolutism but is a restricted
one and no element in the society can act in a manner by consequence
of which the life or liberty of others is jeopardized. Gujarat State is
starving to eliminate the drug menace from the State and launched
anti drug campaign. During the last year only, the State Law
Enforcement agencies have seized approximately more than 87000 kg
of narcotics and 251 drug related cases have been registered and drug
worth of approximately Rs.410 Crore is seized and 353 persons are
arrested. From such illegal drug trafficking the illegal activities are
also going on and considering the adverse impact of the same on the
society, this is not a case to exercise the jurisdiction in favor of the
applicant - accused while his prima facie involvement is found in drug
trafficking activity.
[13.0] In view of the above, there being no merits in the present
application, same 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
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applicant on its own merits, without being influenced by the
observations made in the present order, as early as expeditiously
preferably within a period of TEN WEEKS from today. The applicant -
accused shall also cooperate the learned trial Court in early disposal of
the case.
(HASMUKH D. SUTHAR, J.)
Ajay
