Gujarat High Court
Arvind Chenaji Barot vs State Of Gujarat on 17 September, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
R/CR.MA/12341/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12341 of 2020
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ARVIND CHENAJI BAROT
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 17/09/2020
ORAL ORDER
1.Heard learned advocate Mr. Virat G. Popat for the applicant and learned Additional Public Prosecutor Mr. Hardik Soni for the respondent
- State through video conference.
2.By this application under Section 439 of the Code of Criminal Procedure, 1973, the applicant has prayed for regular bail in connection with the F.I.R. being I-C.R. No. 42 of 2019 registered with Aagthala Police Station, District: Banaskantha for the offences punishable under Sections 15(b), 15
(c) and 29 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (for short "NDPS Act").
3. The facts of the case are that, the applicant is arraigned as an accused for the offences under 'NDPS Act' as the applicant was found Page 1 of 9 Downloaded on : Sat Feb 27 07:04:47 IST 2021 R/CR.MA/12341/2020 ORDER working in a shop, where the business of "poppy straw" was being done. On 11th November, 2019, the shop where the applicant was working was raided and from the shop, poppy straw weighing 3.475 kg was found and the applicant thereafter informed the raiding party that the owner of the Shop, Harbhuji @ Prabhuji Jagaji Barot was doing poppy straw business by purchasing the same from Bhanaji Jairamji Joshi, and thereafter, the raiding party, as per the information given by the applicant, raided the compound of Bhanaji Jairamji Joshi and seized poppy straw weighing 103.362 kg. The applicant was thereafter arrested on the spot. The applicant after filing of the charge-sheet, preferred the regular bail application being Criminal Misc. Application No.5329 of 2020 before this Court which was withdrawn on 09.06.2020.
4.The applicant has thereafter preferred this successive bail application on the ground that co-accused persons are absconding and there is no likelihood that the trial would commence in the near future.
5. The learned advocate Mr. Popat appearing for the applicant submitted that the applicant was only an employee in the shop, where the Page 2 of 9 Downloaded on : Sat Feb 27 07:04:47 IST 2021 R/CR.MA/12341/2020 ORDER business of poppy straw was carried out by his employer Harbhuji @ Prabhuji Jagaji Barot. It was further submitted that the trial is not likely to commence, as both the co-accused, Harbhuji @ Prabhuji Jagaji Barot and Bhanaji Jairamji Joshi are absconding. He further submitted that case of the prosecution even if it is taken at face value, the poppy straw weighing 3.475 kg can be said to have been recovered from the applicant which is a small quantity, and therefore, the applicant is required to be enlarged on bail as the commercial quantity for poppy straw prescribed under the NDPS Act and the rules therein is 50 Kg.
6.The learned advocate thereafter relied upon the provisions of Sections 42 and 50 of the NDPS Act to point out that the same were not complied with by the prosecution and the 103.362 Kg. poppy straw seized from the compound of Bhanaji by the raiding party cannot be attributed to the applicant for involving him for the alleged offence under the NDPS Act, as such quantity was recovered on the basis of the information given by the applicant.
7. It was submitted by the learned advocate Mr. Popat that the successive bail application is Page 3 of 9 Downloaded on : Sat Feb 27 07:04:47 IST 2021 R/CR.MA/12341/2020 ORDER maintainable after withdrawal of the bail application filed after filing of the charge- sheet as the prosecution has failed to arrest the co-accused persons and therefore, it would not be possible for the trial Court to commence the trial in near future and as such there is change of circumstances,
8. On the other hand, learned Additional Public Prosecutor Mr. Hardik Soni submitted that the submission made on behalf of the applicant that he was found in possession of only 3.475 kg. cannot be prima facie accepted, as it is only during the course of the interrogation of the applicant on the spot, that the quantity of 103.362 Kg of poppy straw was found, and therefore, the applicant is also a part of the entire chain of business of poppy straw. It was therefore, submitted that total quantity found during the course of raid is to be considered and the case of the applicant cannot be segregated only on the basis of the quantity of poppy straw found in the shop, where the applicant was found working, as the applicant cannot be said to have been in possession of such poppy straw for his own consumption, but as it is prima facie found during the course of the raid that the applicant was also involved in business of the commercial selling of such Page 4 of 9 Downloaded on : Sat Feb 27 07:04:47 IST 2021 R/CR.MA/12341/2020 ORDER poppy straw and as such the case of the applicant cannot be considered on the ground of smallness of quantity.
9. It was further submitted that the Apex Court in case of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav reported in AIR 2004 SC 1866 has held that in absence of any changed circumstances, no successive bail application can be entertained and as the applicant has withdrawn the bail application on 09.06.2020 before this Court, and there is no other change of circumstances as stated by the applicant within a period of about three months, the application is required to be rejected.
10. Having considering the submissions made on behalf of the respective parties and having gone through the materials on record, it is not in dispute that the applicant was found by the raiding party, at the place of shop from where the poppy straw business was done by the owner of the shop. It is also a fact that the owner of the shop - Harbhuji @ Prabhuji Jagaji Barot and the supplier of the poppy straw Bhanaji Jairamji Joshi are absconding. It is also accepted and admitted position that the raiding party recovered the poppy straw of 103.362 Kg. on the basis of Page 5 of 9 Downloaded on : Sat Feb 27 07:04:47 IST 2021 R/CR.MA/12341/2020 ORDER the information given by the applicant, during the course of interrogation at the time of raid, and therefore, it cannot be said that the applicant at any point of time was not in the knowledge of the business being run from the shop, where he is alleged to have been working as an employee.
11. In such circumstances, the case of the applicant cannot be segregated on the ground of smallness of the quantity of 3.475 Kg., recovered from the shop, for the alleged offences under Sections 15(b), (c) and 29 of the NDPS Act.
12. The applicant has already withdrawn his bail application after filing of the charge-sheet before this Court on 09.06.2020 being Criminal Misc. Application No. 5329/2020. At that time also, two other accused were also absconding and after considering the same, the permission was granted by the Court to withdraw the bail application. Learned advocate Mr. Popat has failed to show any change in the fact situation or circumstances, after withdrawal of the Criminal Misc. Application No. 5329/2020, and therefore, in view of the decisions of the Supreme Court as well as this Court in Page 6 of 9 Downloaded on : Sat Feb 27 07:04:47 IST 2021 R/CR.MA/12341/2020 ORDER the following cases, no successive bail application can be entertained by the High Court, in absence of any change of circumstances.
(1) Shyamdutt Upadhyay andAnother v. State of Gujarat reported in 1992(1) GLH 259 "4. ... When a Court is not inclined to grant the bail, it would give some reasons rejecting the application, which might come in the way of the accused during the trial and because of that the Advocate for the accused would prefer to withdraw the application instead of getting the application rejected with reasons. In such an event the subsequent bail application of the same accused cannot be entertained, unless and until fresh circumstance or ground is made out by the accused for releasing him on bail. In this case, no new ground is made out by the petitioners for releasing them on bail. Therefore, this application is required to be rejected."
(2) State of Gujarat v.Alpeshbhai Navinbhai Patel reported in 2004(1) GLH 754 "9. ...Normally, the substantial change in the circumstances are being considered stage wise, i.e.
(i) at the stage of considering the matter for granting anticipatory bail, (ii) at the stage of considering the matter for regular bail before the charge sheet when the investigation is in progress and (iii) after filing of charge sheet and after completion of investigation."
(3) Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another reported in 2005(3)GLH 601 "18. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our Page 7 of 9 Downloaded on : Sat Feb 27 07:04:47 IST 2021 R/CR.MA/12341/2020 ORDER country. The findings of a higher Court or a coordinate bench must receive serious consideration at the hands of the Court entertaining a bail applicable at a later stage when the same had been rejected earlier. In such an event, the Courts must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to speculation and uncertainty in the administration of justice and may lead to forum hunting.
19. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned Counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by Courts earlier including the Apex Court of the country."
(4) State of Maharashtra v. Budhikota Subbarao reported in 1989 (0) GLHELSC 28635:
"7. Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence.
...For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact-situation. That is what prompted Shetty, J. to describe the impugned order as 'a bit out of the Page 8 of 9 Downloaded on : Sat Feb 27 07:04:47 IST 2021 R/CR.MA/12341/2020 ORDER ordinary'. Judicial restraint! demands that we say no more."
13. Thus, on both the grounds i.e. on merits and that no new ground is made out by the applicant for releasing him on bail, this successive bail application is rejected.
(BHARGAV D. KARIA, J) Pradhyuman Page 9 of 9 Downloaded on : Sat Feb 27 07:04:47 IST 2021