Gujarat High Court
Amriksingh @ Sonu Sarvansing Malhi vs State Of Gujarat on 1 January, 2024
NEUTRAL CITATION
R/CR.MA/23275/2023 ORDER DATED: 01/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 23275 of 2023
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AMRIKSINGH @ SONU SARVANSING MALHI
Versus
STATE OF GUJARAT
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Appearance:
MR NITIN T GANDHI(5620) for the Applicant(s) No. 1
MR JK SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 01/01/2024
ORAL ORDER
1. Rule. Learned APP waives service of notice of Rule for the respondent - State.
2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with C.R.No.11196012220750 of 2022 registered with Fatehganj Police Station, Vadodara City for the offence punishable under Sections 8(c), 21(b), 22(b) and 29 of the NDPS Act.
3. Heard learned advocate Mr. Nitin T. Gandhi for the applicant and learned APP Mr. J. K. Shah for the respondent - State.
4. Learned advocate Mr. Gandhi submits that the so-
Page 1 of 7 Downloaded on : Tue Jan 02 20:39:56 IST 2024NEUTRAL CITATION R/CR.MA/23275/2023 ORDER DATED: 01/01/2024 undefined called incident is occurred on 03.11.2022 and FIR is filed on 04.11.2022 and applicant accused has been arrested from the spot along with contraband article i.e. 86.2 gram heroin on 03.11.2022 and since then he is in judicial custody. Learned advocate Mr. Gandhi submits that the contraband article allegedly recovered from the applicant accused is less than commercial quantity and more than small quantity i.e. intermediate quantity and therefore rigors of section 37 of the NDPS Act would not come into play. It is further submitted that considering the huge number of pending cases in the trial court, it would take considerably long period of time to conclude the proceedings. It is further submitted that the investigation is already completed and present application is preferred after submission of charge-sheet. Learned advocate Mr. Gandhi further submits that members of the raiding party have carried out raid and contraband article heroin was seized between sunset and sunrise without any warrant or authorization and that there was no compliance of Section 42 of the NDPS Act. Learned advocate Mr. Gandhi, therefore, submits that applicant may be enlarged on bail by imposing suitable terms and conditions.
5. Learned advocate Mr. Gandhi has put reliance upon the following decisions in support of his Page 2 of 7 Downloaded on : Tue Jan 02 20:39:56 IST 2024 NEUTRAL CITATION R/CR.MA/23275/2023 ORDER DATED: 01/01/2024 undefined submissions:
(1) In Sami Ullaha v. Superintendent, Narcotic Central Bureau, reported in (2008) 16 SCC 471; (2) In Puranmal Jat v. State of Rajasthan, reported in 2023 SCC Online SC 1418; and (3) The decision rendered by the Bombay High Court in the case of Shivraj Gorakh Satpute v.
State of Maharashtra rendered in Bail Application No.2865 of 2022 (para 9).
6. Learned APP Mr. J. K. Shah has objected present bail application with vehemence and submitted that role of the present applicant accused is clearly spelt out from the compilation of charge-sheet papers. There was three past antecedents reported against the applicant accused wherein his active involvement is found out and ultimately at the end of the day, charge-sheet is also filed against him. It is also submitted that contraband article i.e. 86.2 gram heroin was seized from the conscious possession of the present applicant accused. It is submitted that it is true that the contraband article recovered is less than commercial quantity and higher than small quantity i.e. intermediate quantity and therefore rigors of Section 37 of NDPS Act would not come into play but at the same time, while dealing with the application of bail, the role played by the Page 3 of 7 Downloaded on : Tue Jan 02 20:39:56 IST 2024 NEUTRAL CITATION R/CR.MA/23275/2023 ORDER DATED: 01/01/2024 undefined applicant accused at the time of commission of crime, the gravity of offence and severity of the punishment may also be seen by this Court. Learned APP, therefore, submits that applicant may not be enlarged on bail.
7. I have perused the police papers as well as other documents produced by the applicant along with memo of the application. It is found out from the record that on receipt of secret information, the members of the raiding party have carried out raid on 03.11.2022 and the applicant has been arrested from the spot along with contraband article i.e. 86.2 gram heroin and since then he is in judicial custody. It is also found out from the record that investigation is already completed and charge- sheet is also filed. The present application is filed after submission of the charge-sheet.
8. At this stage, I would like to refer to the decision of the Hon'ble Apex Court in the case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI Through its Director, reported in (2007) 1 SCC 70, wherein, the Hon'ble Apex Court has laid down that, while considering an application for regular bail, the Courts shall have to take into consideration, the following aspects:
(a) The nature of accusation and the severity of Page 4 of 7 Downloaded on : Tue Jan 02 20:39:56 IST 2024 NEUTRAL CITATION R/CR.MA/23275/2023 ORDER DATED: 01/01/2024 undefined punishment in case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant;
(c) Prima facie satisfaction of the court in support of the charge;
8.1. The Hon'ble Apex Court, further, observed in paragraphs 10 and 16 thus;
"10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted.
16. We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail Page 5 of 7 Downloaded on : Tue Jan 02 20:39:56 IST 2024 NEUTRAL CITATION R/CR.MA/23275/2023 ORDER DATED: 01/01/2024 undefined to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society."
9. There cannot be any dispute with regard to the ratio laid down by the Hon'ble Supreme Court in the decisions relied on by learned advocate Mr. Gandhi for the applicant. However, at the same time, while considering the bail application, this Court has to consider the gravity of offence, severity of the punishment in the event of conviction, the position and standing of the accused, reasonable apprehension of the witnesses being tampered with, etc. Thus, the aforesaid decisions would not render any assistance to the applicant accused in the facts of the present case.
10. I am conscious of the fact that the quantity of the seized contraband article is intermediate quantity and therefore rigors of Section 37 would not come into play in the instant case, however, at the same time, it is well settled that while dealing with the application of bail, the Court has to see the role played by the applicant accused at the time of commission of crime, the gravity of offence and severity of the punishment. It is not in dispute that the Page 6 of 7 Downloaded on : Tue Jan 02 20:39:56 IST 2024 NEUTRAL CITATION R/CR.MA/23275/2023 ORDER DATED: 01/01/2024 undefined applicant has been arrested from the spot with 86.2 gram heroin and therefore he played an active role in commission of crime. Moreover, the contraband article heroin and other drugs are destroying the country and ruining the youth. Therefore, considering the quantity of the contraband article, role played by the applicant accused, the gravity of offence and severity of the punishment, I am not inclined to consider this application. Accordingly, application stands rejected. Rule is discharged.
11. It is needless to say that the aforesaid observations are tentative in nature for deciding the present bail application.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 7 of 7 Downloaded on : Tue Jan 02 20:39:56 IST 2024