Gujarat High Court
Pravinbhai Nagjibhai Thakor vs State Of Gujarat on 3 September, 2025
NEUTRAL CITATION
R/CR.MA/17708/2025 ORDER DATED: 03/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 17708 of 2025
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PRAVINBHAI NAGJIBHAI THAKOR
Versus
STATE OF GUJARAT
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Appearance:
MR ANIQ A KADRI(11256) 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 : 03/09/2025
ORAL ORDER
[1.0] RULE. Learned APP waives service of notice of Rule for and on
behalf of the respondent - State of Gujarat.
[2.0] By way of present successive application under Section 483 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the
applicant is seeking regular bail in connection with FIR being CR
No.11195018240665 of 2024 registered with Dhanera Police
Station, District Banaskantha for the offence under Sections 8(C),
21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act
(hereinafter referred to as "NDPS Act").
[3.0] Heard learned advocate for the applicant and learned APP for
respondent - State of Gujarat.
[4.0] Learned advocate for the applicant has submitted that the
applicant is innocent and in the present case, charge-sheet is filed and
nothing is required to be recovered or discovered from the present
applicant. Further, the applicant is arraigned as accused only on the
basis of statement of co-accused and applicant was not having any
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knowledge about the muddamal contraband. It is submitted that if the
present applicant is not released even after filing of charge-sheet,
then his future career will be ruined as he will have to be behind the
bars with hardcore criminals. Further, co-accused having similar role
has been considered by the coordinate Bench of this Court and
therefore, even on the ground of parity, the applicant deserves to be
enlarged on regular bail. It is submitted that commencement and
conclusion of trial will take its own time as till date only two witnesses
are examined and therefore, he has requested to grant regular bail to
the applicant as no offence as alleged is made out against the present
applicant.
[5.0] Learned APP has vehemently opposed the present application
on the ground that applicant was well within the knowledge of the
commercial quantity of contraband and accused No.1 is found with
conscious possession of smack and alongwith present applicant he
had gone to Rajasthan to purchase the said contraband muddamal. He
had tasted and purchased the contraband smack from accused No.6
from Rajasthan and while returning, during the patrolling, police
recovered the contraband muddamal however, as the present
applicant was on motorcycle with co-accused, he managed to escape
but he was aware of the contraband and he had tasted the muddamal
which was in commercial quantity and he is used to consume and sell
the contraband. Thus, prima facie involvement of the applicant is there
and therefore, contraband in commercial quantity, rigors of section 37
of the NDPS would be applicable. Further, merely filing of charge-
sheet is not a ground to grant bail to the applicant and therefore, she
has requested to dismiss the present application.
[6.0] Present is a successive bail application seeking regular bail.
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Perusing the investigation papers, it appears that the case of the
prosecution is that based on the intelligence, on 16.08.2024, Auto
Rickshaw No.GJ-08-AX-0991 was intercepted and on checking the
person of driver of said auto rickshaw - accused No.1, 256.890 gram
i.e. commercial quantity of Heroin Morphin contraband worth
Rs.12,84,540/- was found and accused No.2 was also traveling in the
said rickshaw. It is further the case that the accused persons including
the present applicant was involved in the commission of offence
under the NDPS Act. It is the case of prosecution that the accused
Nos.1 and 2 were caught red-handed with contraband and they had
stated that they alongwith present applicant, as per the say of
accused No.5 - Bharat Arjan Rathod, for his personal use and for
selling by the present applicant and accused Nos.1 and 2, were
carrying the contraband which was purchased from absconding
accused No.6 - Tejabhai. Further, the applicant was apprehended by
the police on Passion Pro Motorcycle which is of the ownership of
accused No.5. He has submitted that the present applicant is not
found with conscious possession of contraband but has admitted
during investigation that he had ordered the said contraband for
selling purposes. After investigation, charge-sheet is filed against the
present applicant and accused No.6 - Tejabhai is shown as absconding
accused and investigation qua him is still going on. The IO has carried
out the procedure strictly as per the rules and regulations and
applying the mandatory provisions of the NDPS Act.
[7.0] The main argument of the learned advocate for the applicant is
that trial will take its own time and now as the charge-sheet is filed,
applicant is entitled for bail. Herein, the applicant admittedly was in
knowledge of the conscious possession of 256.890 gram of Heroin
Morphin with the accused Nos.1 and 2, which is a commercial quantity
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and therefore, rigors of section 37 of the NDPS Act are applicable. 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.
[7.1] Even, from the bare perusal of the investigation papers, it
appears that present applicant was admittedly in knowledge of the
conscious possession of the contraband and that too in commercial
quantity. In view of the law laid down by the Hon'ble Supreme Court in
the case of Nawaz Khan (Supra), as the involvement of present
applicant is there, considering the rigors of section 37 of the NDPS
Act, it is very difficult to presume that if the applicant is released on
bail, then he would not involve in commission of similar type of
offence. At this stage, it is apposite to refer to the decision of the
Hon'ble Supreme Court in the case of State of Kerala etc. vs. Rajesh
etc. reported in AIR 2020 SC 721, wherein considering the provisions
of Section 37(1)(b)(ii) of the NDPS Act, it has been held that since the
offence involves recovery of the narcotic drug in excess of its
commercial quantity, the Court is required to record its satisfaction
that there are reasonable grounds for believing that the applicant is
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not guilty of such offence and that the applicant is not likely to
commit any offence while on bail and the Court is required to record a
finding mandated under Section 37 of the NDPS Act which is a sine qua
non for grant of bail to the accused under the NDPS Act. The
contraband is found in the conscious possession of accused persons
who were in contact with the present applicant based on intelligence.
Even, CDR details have been collected by the investigating agency.
Not only that, accused Nos.1 and 2 are caught red-handed with the
contraband in presence of panch witnesses and they are caught red-
handed with the conscious possession of contraband and applicant
herein during the investigation has agreed that he had gone with the
accused Nos.1 and 2 to Rajasthan for taking delivery of the
contraband.
[8.0] Further, learned APP has submitted 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. 256.890 gram i.e.
commercial quantity of Heroin Morphin contraband worth
Rs.12,84,540/- 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 will be applicable.
[8.1] So far as benefit of parity as claimed by the applicant on the
ground of release of co-accused Bharatbhai Arjanbhai Rathod is
concerned, while enlarging the said co-accused on bail, coordinate
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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 Bharatbhai Rathod 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, present applicant is found in
conscious posssession of contraband in commercial quantity and there
was a live link for which CDR is collected during the investigation 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.
Considering the role of the present applicant and law laid down by the
Hon'ble Apex Court in the case of Ramesh Bhawan 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 Bharat Rathod, who
has been released on bail, was different. The only role attributed to
the said accused was that his motorcycle was used in the offence.
Herein, from the conscious possession of the present applicant, the
contraband was found and that too in commercial quantity.
[9.0] 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
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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. 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" that the
accused would not indulge in similar activity or repeat the same
offence.
[9.1] 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,
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 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.
[9.2] 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
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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 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.
[9.3] 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
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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."
Further, in the present case, the applicant is admittedly withing
the knowledge of indulging in conscious possession of the contraband
which was in commercial quantity and one co-accused namely
Tejabhai, from whom delivery of the recovered contraband was taken
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 (1)
Bhawani Singh vs. State of Rajasthan reported in 2022 SCC OnLine
SC 1991 as well as in the case of (2) State of Meghalaya vs.
Lalrintluanga Sailo and Another reported in 2024 SCC OnLine SC
1751 and (3) State by the Inspector of Police vs. B. Ramu reported in
2024 INSC 114, 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 is of commercial quantity and
therefore, rigors of Section 37 of the Act would be applicable. Even,
the coordinate Bench has not considered the riogrs of section 37 of
the NDPS Act while enlarging the co-accused and therefore, question
to grant benefit of parity to the present applicant also does not arise.
[10.0] Further, the learned Sessions Judge has accorded the
satisfaction qua compliance of mandatory provisions of the and even
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it is subject matter of trial. Herein, in the case on hand, the applicant -
accused had tasted the muddamal contraband and indulged in selling
of the same and if the applicant is released on bail then the possibility
of his getting engaged in such illegal activity and tampering with
evidence cannot be ruled out and even, the co-accused Tejabhai is on
run and yet to be arrested. So far as submission on behalf of the
applicant that he is arraigned on the basis of statement of co-accused
is concerned, it falls within the purview of Section 67 of the NDPS Act
and amounts to defences raised by the present applicant which are
question of appreciation of evidence at the time of trial. Even,
sufficient evidence qua CDR and locations etc. are also collected.
[11.0] Further, to consider the argument canvassed by the
learned advocate for the applicant that applicant is entitled to bail on
the ground of delay in trial, as only two witnesses are examined,
present applicant is not entitled for any relief in absence of any
change in circumstances. Herein, learned advocate for the applicant
has failed to point out any material change in circumstances after
dismissal of earlier bail application. 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". At this stage it is
also apposite to refer to the decision of the Hon'ble Supreme Court in
the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu
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Yadav and another reported in AIR 2004 SC 1866, wherein in
paragraph 20, the Hon'ble Supreme Court has observed and held as
under:
"20. Before concluding, we must note though an accused has a
right to make successive applications for grant of bail the court
entertaining such subsequent bail applications has a duty to
consider the reasons and grounds on which the earlier bail
applications were rejected. In such cases, the court also has a duty
to record what are the fresh grounds which persuade it to take a
view different from the one taken in the earlier applications. In
the impugned order we do not see any such fresh ground
recorded by the High Court while granting bail. It also failed to
take into consideration that at least on four occasions order
refusing bail has been affirmed by this Court and subsequently
when the High Court did grant bail, this Court by its order dated
26th July, 2000 cancelled the said bail by a reasoned order. From
the impugned order, we do not notice any indication of the fact
that the High Court took note of the grounds which persuaded
this Court to cancel the bail. Such approach of the High Court, in
our opinion, is violative of the principle of binding nature of
judgments of superior court rendered in a lis between the same
parties, and in effect tends to ignore and thereby render
ineffective the principles enunciated therein which have a binding
character."
Even, 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.
[11.1] Further, 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
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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
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] Further, person has no absolute right of liberty at the cost
of societal interest, individual liberty cannot be ascertained to such an
extent or elevated to such high pedestal which would bring in anarchy
or disorder in the society. In this regard, reference is required to be
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made to the decision of the Hon'ble Supreme Court in the case of
Ankush Vipan Kapoor vs. Union of India & Another reported in 2024
INSC 986 wherein in paras 9.1 and 9.2 it is observed as under:
"9.1 The ills of drug abuse seem to be shadowing the length and
breadth of our country with the Central and every State
Government fighting against the menace of substance abuse. The
debilitating impact of drug trade and drug abuse is an immediate
and serious concern for India. As the globe grapples with the
menace of escalating Substance Use Disorders ("SUD") and an ever
accessible drug market, the consequences leave a generational
imprint on public health and even national security. Article 47 of the
Constitution makes it a duty of the State to regard the raising of the
level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties and in
particular the State shall endeavour to bring about prohibition of
the consumption except for medicinal purposes of intoxicating
drinks and of drugs which are injurious to health. The State has a
responsibility to address the root causes of this predicament and
develop effective intervention strategies to ensure that India's
younger population, which is particularly vulnerable to substance
abuse, is protected and saved from such menace. This is particularly
because substance abuse is linked to social problems and can
contribute to child maltreatment, spousal violence, and even
property crime in a family.
9.2 Despite the efforts of the State, an unprecedented scale of
coordination and profit seeking has sustained this menace so hard-
hitting and multifaceted that it causes suffering cutting across age
groups, communities, and regions. Worse than suffering and pain, is
the endeavour to profit from it and use the proceeds thereof for the
committing of other crimes against society and the State such as
conspiracy against the State and funding terrorist activities. Profits
from drug trafficking are increasingly used for funding terrorism and
supporting violence."
[12.1] Further, 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 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
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of which the life or liberty of others is jeopardized.
[13.0] In view of the above, there being no merits in the present
successive application, which is filed without there being any change
in circumstances, is hereby dismissed. However, learned trial Court is
directed to expedite the trial. Rule is hereby discharged.
[14.0] 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, 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
