Gujarat High Court
Sarjerao Keshavrao Garad vs State Of Gujarat on 2 May, 2025
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R/CR.MA/5487/2025 CAV JUDGMENT DATED: 02/05/2025
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Reserved On : 17/04/2025
Pronounced On : 02/05/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 5487 of 2025
(FOR SUCCESSIVE REGULAR BAIL - AFTER CHARGESHEET)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
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SARJERAO KESHAVRAO GARAD
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR IH SYED, Sr. Adv. with MR ANIQ A KADRI(11256) for
the Applicant(s) No. 1
MR SHUSHIL R SHUKLA(5603) for the Respondent(s) No. 2
MS MEGHA CHITALIA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Rule. Learned APP waives service of notice of rule
for respondent - State of Gujarat.
2. The present application, which is a successive
bail application preferred by the applicant after
the rejection of earlier bail application, is
filed under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, for regular bail in connection
with the FIR being C.R. No.III-05/2021 registered
with the ATS Police Station, Ahmedabad Unit for
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the offence punishable under Sections 8C, 22(c),
23(c), 25, 27A, 28 and 29 of the NDPS Act.
3. Heard learned Senior Counsel, Mr. I.H. Syed
assisted by learned advocate, Mr. Aniq Kadri for
the applicant, learned APP Ms. Megha Chitalia for
the respondent no.1 and learned advocate, Mr.
Shushil Shukla for the respondent no.2.
4. Learned Senior Counsel, Mr. Syed submitted that
the present application is a successive bail
application preferred by the applicant after the
rejection of earlier bail application. He
submitted that however after the rejection of
earlier bail application, the applicant had
preferred SLP before the Hon'ble Supreme Court,
which was withdrawn by the applicant and thus, the
order passed by this Court has attained finality.
He submitted that the present application is
preferred on the ground of change of
circumstances. He submitted that FIR has been
registered against total 15 accused persons, out
of those, the co-accused, who are having graver
and lesser role than the present applicant, have
already been considered by this Hon'ble Court for
bail. He further submitted that there is no
recovery or discovery at the instance of the
present applicant and the applicant has been
arraigned as accused only on the basis of the
statement of the co-accused and the co-accused,
who have been found with contraband articles, have
already been considered for bail. He submitted
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that FIR has been lodged on 10.11.2023 and the
applicant is arrested in connection with the same
on 15.11.2021 and since then, the applicant is in
jail since 27.11.2021 and thus, more than three
have been passed, therefore for indefinite period,
the applicant may not be kept behind the bar.
5. Learned Senior Counsel, Mr. Syed submitted that at
the time of submission of the chargesheet, the
concerned Investigating Officer has cited 119
persons as witnesses and recently on 01.04.2025,
the charge has been framed by the court concerned,
therefore, the manner and method in which the
trial is proceeding clearly goes on to show that
it would take considerable long time to conclude
the proceedings, therefore for no fault on the
part of the applicant, he may not be kept behind
the bar.
6. Learned Senior Counsel, Mr. Syed has drawn
attention towards the order dated 31.01.2025
passed by the Coordinate Bench of this Hon'ble
Court in Criminal Misc. Application No.10094/2024
in case of co-accused, Hussain @ Husen Isa Rav and
submitted that before entertaining the bail
application of the said co-accused, the Coordinate
Bench of this Hon'ble Court had called for the
report from the concerned trial court and after
considering the said report, the Coordinate Bench
of this Court has categorically observed that
after a period of almost 3½ years, charge is not
yet framed and considering the number of
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witnesses, trial is not likely to be concluded in
near future and the accused may not be made to
suffer incarceration for indefinite period at the
pre-trial stage. He, therefore, submitted that
denying the bail to the applicant would also
violate the fundamental right under Article 21 of
the Constitution of India. He submitted that in
view of the number of decisions of the Hon'ble
Supreme Court including recent decisions, bail is
a rule and jail is exceptional. Learned advocate,
therefore, submitted that considering the period
of incarceration, the Hon'ble Supreme Court has
considered the case of bail of the accused
concerned. In support of this submission, learned
advocate has placed reliance upon the decisions of
the Hon'ble Supreme Court as well as this Hon'ble
Court and submitted that negation of bail is the
rule and its grant and exception under sub-clause
(ii) of clause (b) of Section 37(1) of the NDPS
Act.
7. Learned Senior Counsel, Mr. Syed, at this stage,
has referred to following decisions,
(1) the judgment of the Hon'ble Supreme Court in
case of Tapas Kumar Palit Vs. State of
Chhattisgarh, reported in 2015 INSC 222;
(2) the judgment of the Hon'ble Supreme Court in
case of Mohd. Muslim @ Hussain Vs. State (NCT
of Delhi), reported in 2023 SCC OnLine SC
352;
8. Referring to the aforesaid decisions of the
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Hon'ble Supreme Court, it is submitted that the
case of the applicant is squarely covered by those
decisions as in the said decisions, the Hon'ble
Supreme Court has considered the liberty of the
accused guaranteed under Article 21 of the
Constitution of India as also period of
incarceration and considered the case of the
accused concerned on bail. It is, therefore, urged
that considering the nature of the offence, the
period of incarceration spent by the applicant so
far as also on the ground of parity, there being
merit in this application, the applicant may be
enlarged on regular bail by imposing suitable
conditions.
9. Learned advocate, Mr. Shukla appearing for the
respondent - NCB has opposed the present
application and submitted that in fact, this is a
successive bail application and earlier bail
application preferred by the applicant has been
rejected by reasoned order and the said order has
also been confirmed by the Hon'ble Supreme Court
and except delay in trial and period of
incarceration, there is no chance in the
circumstances. He submitted that from the papers
of the chargesheet, the involvement of the
applicant in the commission of crime is clearly
spelt out. He submitted that at the time of
submission of the chargesheet, specific role is
attributed to the applicant to the effect that the
applicant is involved in the business of
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transportation of the contraband articles within
the territory of country and at number places, the
applicant had supplied such contraband articles
and thus, the applicant is involved in
distributing of the drugs.
10. Learned advocate, Mr. Shukla submitted that in
fact, on the strength of the secret information
received by the members of the ATS as well as SOG,
a raid was carried out and during the course of
investigation, the involvement of the present
applicant is found out and as a part of
transaction, the amount has been transferred in
the account of his daughter and son, which clearly
goes on to suggest his involvement in the
commission of crime. He further submitted that
during the course of investigation, the concerned
Investigating Officer has collected CDR, which
clearly goes on to show that the applicant was in
contact with other co-accused. He further
submitted that at the time of submission of the
chargesheet, the concerned Investigating Officer
has cited 119 persons as witnesses, out of which,
27 witnesses are the officers of the ATS, whereas
15 witnesses are the members of SOG and few others
were also police officials, therefore, the trial
will get over in near future. He further submitted
that in fact, huge volume of contraband articles
were recovered from the custody of the accused,
therefore, rigors of Section 37 of the NDPS Act
would come into play. He further submitted that
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one of the reasons for delay in trial is that the
accused were kept in judicial custody at different
places and because of non-cooperation on the part
of the accused, the trial gets delayed and there
is no fault on the part of the prosecution. He
further submitted that in fact, some accused have
not engaged advocate to defend their case nor they
have asked for legal aid and thus, they are
passing valuable time of the courts and thereby
creating picture of delay in trial and thereby
trying to get advantage of it. He further
submitted that as stated above, this is a
successive bail application, therefore instead of
entertaining the present application, the
direction to expedite the trial may be issued. It
is, therefore, urged that considering the above
facts, the present application being successive
bail application may not be entertained.
11. Learned APP Ms. Chitalia appearing for the
respondent - State of Gujarat has adopted the
submissions canvassed by learned advocate, Mr.
Shukla appearing for the respondent - NCB and also
opposed the present application contending that
this is a successive bail application preferred by
the applicant without there being any change of
circumstances, that too, at the time of rejection
of earlier bail application and withdrawing SLP,
no liberty was reserved. It is, therefore, urged
that the present application may not be
entertained.
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12. Learned advocates appearing on behalf of the
respective parties do not press for further
reasoned order.
13. I have heard the learned advocates appearing on
behalf of the respective parties and perused the
papers of the investigation and considered the
allegations levelled against the applicant and the
role played by the applicant. It is found out from
the record that the present application is
preferred after submission of the chargesheet and
now the investigation is completed and the
applicant is in jail since 27.11.2021. I have
considered the role attributed to the present
applicant at the time of commission of crime and
the role attributed to the co-accused, who have
been considered for bail. It is also found out
from the record that there are 119 persons cited
as witnesses by the concerned Investigating
Officer at the time of submission of chargesheet
and there is no progress in the trial also. As can
be seen from the documents produced on record,
recently on 01.04.2025, the charge has been framed
and yet the trial has not proceeded further.
Further, there are voluminous record and as stated
above, there are number of witnesses, who are yet
to be examined, therefore, it would take
considerable time to conclude the trial.
14. I have taken into consideration the decisions upon
which reliance has been placed by learned Senior
Counsel for the applicant and other recent
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decisions of the Hon'ble Supreme Court in the
matter of regular bail as also successive bail
application, wherein it has been categorically
observed that "bail is the rule and refusal is an
exception" and specific observations have been
made with regard to the grant of bail.
15. The Hon'ble Supreme Court in a decision in case of
Tapas Kumar Palit (supra) has observed in
Paragraph No.14 as under,
"14. In this regard, the role of the Special Judge
(NIA) would also assume importance. The
Special Judge should inquire with the Special
Public Prosecutor why he intends to examine a
particular witness if such witness is going
to depose the very same thing that any other
witness might have deposed earlier. We may
sound as if laying some guidelines, but time
has come to consider this issue of delay and
bail in its true and proper perspective. If
an accused is to get a final verdict after
incarceration of six to seven years in jail
as an undertrial prisoner, then, definitely,
it could be said that his right to have a
speedy trial under Article 21 of the
Constitution has been infringed. The stress
of long trials on accused persons - who
remain innocent until proven guilty - can
also be significant. Accused persons are not
financially compensated for what might be a
lengthy period of pre- trial incarceration.
They may also have lost a job or
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accommodation, experienced damage to personal
relationships while incarcerated, and spent a
considerable amount of money on legal fees.
If an accused person is found not guilty,
they have likely endured many months of being
stigmatized and perhaps even ostracized in
their community and will have to rebuild
their lives with their own resources."
16. The Hon'ble Supreme Court Mohd. Muslim @ Hussain
(supra) has observed in Paragraph No.22 as under,
"22. Before parting, it would be important to
reflect that laws which impose stringent
conditions for grant of bail, may be
necessary in public interest; yet, if trials
are not concluded in time, the injustice
wrecked on the individual is immeasurable.
Jails are overcrowded and their living
conditions, more often than not, appalling.
According to the Union Home Ministry's
response to Parliament, the National Crime
Records Bureau had recorded that as on 31 st
December 2021, over 5,54,034 prisoners were
lodged in jails against total capacity of
4,25,069 lakhs in the country20. Of these
122,852 were convicts; the rest 4,27,165 were
undertrials."
17. I have also taken into consideration the law laid
down by the Hon'ble Apex Court in the case of
Sanjay Chandra v. Central Bureau of Investigation,
reported in [2012] 1 SCC 40 as well as in case of
Satender Kumar Antil v. Central Bureau of
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Investigation & Anr. reported in (2022) 10 SCC 51.
Therefore in the facts and circumstances of the
case and considering the nature of the allegations
made against the applicant in the FIR as also
considering the period of incarceration spent by
the applicant in jail, this Court is of the
opinion that this is a fit case to exercise the
discretion and enlarge the applicant on regular
bail.
18. Hence, the present application is allowed. The
applicant is ordered to be released on regular
bail in connection with the FIR being C.R. No.III-
05/2021 registered with the ATS Police Station,
Ahmedabad Unit on executing a personal bond of
Rs.50,000/- (Rupees Fifty Thousand only) with one
surety of the like amount to the satisfaction of
the trial Court and subject to the conditions that
he shall;
[a] not take undue advantage of liberty or misuse
liberty;
[b] not act in a manner injuries to the interest
of the prosecution;
[c] surrender passport, if any, to the concerned
court within a week;
[d] not leave the State of Gujarat without prior
permission of the concerned court;
[e] mark presence before the concerned Police
Station on alternate Monday of every English
calendar month for a period of six months
between 11:00 a.m. and 2:00 p.m.;
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[f] furnish the present address of residence to
the Investigating Officer and also to the
Court at the time of execution of the bond
and shall not change the residence without
prior permission of this Court;
19. The authorities will release the applicant only if
he is not required in connection with any other
offence for the time being. If breach of any of
the above conditions is committed, the concerned
Sessions Judge concerned will be free to issue
warrant or take appropriate action in the matter.
Bail bond to be executed before the lower Court
having jurisdiction to try the case. It will be
open for the concerned Court to delete, modify
and/or relax any of the above conditions, in
accordance with law.
20. At the trial, the trial Court shall not be
influenced by the observations of preliminary
nature qua the evidence at this stage made by this
Court while enlarging the applicant on bail.
21. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
