Gujarat High Court
Rahul S. K. S/O Rizol S. K vs Narcotic Control Bureau on 23 August, 2023
NEUTRAL CITATION
R/CR.MA/5915/2023 ORDER DATED: 23/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5915 of 2023
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RAHUL S. K. S/O RIZOL S. K.
Versus
NARCOTIC CONTROL BUREAU
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Appearance:
MOHIT P PATHAK(7344) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 1
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 23/08/2023
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with offence registered vide File No.F.No.NCB/ AZU/CR-11/2022 with the Narcotic Control Bureau, Zonal Unit, Ahmedabad for the offences under sections 8(c), 22(c), 27(A), 28, 29 and 30 of the Narcotics Drugs and Psychotropic Substances Act, 1985 against 8 persons including the present applicant.
2. It is the case of the prosecution that they have received specific information on 26.5.2022 that four persons Page 1 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined named in the complaint are involved in manufacturing the huge quantity of the narcotic drug i.e. Alprazolam without any license which is a prohibited substance under the NDPS Act at Parashvnath Dye Chem, Plot C1B, 2409, GIDC Phase-3, Vapi, Valsad (Gujarat). It is the case of the prosecution that the preventive team conducted the search of the factory and machines, boiler, dryer, jerry-cans / barrels containing chemicals used in the manufacture of Alprazolam were found during the search and thereafter, 68.226 kg of the psychotropic substance Alprazolam / Nordazepam / other psychotropic substance was seized after following the due procedure under the NDPS Act. It is alleged that the applicant is one of the members of the cartel and he came to Vapi to provide support to other members at the factory. It is alleged that the applicant accused helped Satyanna Pothuganthi, Srinivas Karre and Mohammad Sahajat Shaikh in transportation of Chemicals required from godown to factory. It is alleged that the applicant accused arranged food, water and other necessary things to Satyanna Pothuganthi, Srinivas Karre and Page 2 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined Mohammad Sahajat Shaikh so that they did not have to go out of the factory and they can carry on their activities clandestinely. It is alleged that the applicant accused was arrested from the factory premises wherein the NCB has recovered seized Nordazepam from the applicant accused.
3. Heard learned advocate Mr.Mohit Pathak for the applicant, learned advocate Mr.Kartik Pandya for the respondent No.1 - Narcotic Control Bureau and learned APP Mr.Tirthraj Pandya for the respondent no.2 - State.
4. Learned advocate Mr.Mohit Pathak has submitted that in view of the quantity of contraband, the offence as alleged undoubtedly falls within the rigors of section 37 of the NDPS Act, however, it is settled proposition of law 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. Mr.Pathak has further submitted that at this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a Page 3 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined positive finding as to whether or not the accused has committed an offence under the NDPS Act but what is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offences he is charged with and further that he is not likely to commit an offence under the said Act while on bail. Mr.Pathak has further submitted that the satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. 4.1 Mr.Pathak has further submitted that the case against the applicant herein is built on the confessional statement of co-accused recorded under section 67 of the NDPS Act and the said statements are inadmissible and therefore no reliance ought to be placed on the same. Mr.Pathak has further submitted that two limbs of circumstances are cited by the prosecution so as to cite the involvement in the commission of alleged offence by the applicant accused and the role attributed to the applicant is of providing food to the persons working at the factory and Page 4 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined transport of chemicals to the factory from the godown. 4.2 Mr.Pathak has further submitted that the complaint in connection with the alleged offence is already filed on 02.12.2022 and therefore there is no possibility of tempering with the evidence of the prosecution and the trial would take considerable time and therefore keeping the applicant in judicial custody would amount to travesty of justice and therefore, this Court may be pleased to enlarge the applicant on regular bail.
5. Learned advocate Mr.Kartik Pandya appearing for the respondent No.1 has vehemently opposed the bail application and submitted that there is sufficient material against the present applicant to deny him bail as the present applicant is one of the members of the drug cartel and deeply indulged in conspiracy to manufacture the prohibited contraband substance under the NDPS Act. Mr.Pandya has further submitted that the offence committed by the accused is against society and prejudicial Page 5 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined to the interest of general public, therefore, if the accused is enlarged on bail, there is every probability/likelihood of his tampering with the prosecution evidence, hence, the accused deserves to be kept behind the bar and bail is not required to be granted, moreover, the enlarging of accused on bail at this stage would encourage the offenders of the like nature. Mr.Pandya has further submitted that as it is not a simple case of drug trafficking but this is a case of large scale manufacturing of contraband and therefore, considering the totality of facts and circumstances as well as the materials available against the present applicant, he may not be enlarged on bail. Learned advocate Mr.Kartik Pandya, further relied upon the judgment of Hon'ble Supreme Court in the case of Naroctics Control Bureau Vs. Mohit Aggarwal, reported in 2022 SCC Online SC 891 and submitted that in subsequent judgment the Hon'ble Supreme Court had an occasion to consider the case of Toofan Singh Vs State of Tamilnadu, reported in (2021) 4 SCC 1 as well as provision of Section 67 of the NDPS Act and the Hon'ble Supreme Court after considering Page 6 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined the ratio laid down in judgment of Toofan Singh (supra) has taken view, that the aforesaid aspects can be considered at the stage of trial. By relying upon the aforesaid judgment, he submitted that the Hon'ble Supreme Court in the aforesaid judgment had taken a view, that if the statement given by the co-accused under Section 67 of the NDPS Act is corroborated by some material, in that case, even if there is a statement of co-accused on the basis of overall materials placed on record against the accused person and considering the fact that contraband recovered is of commercial quantity, the rigors of Section 37 of the NDPS Act would apply and therefore the present applicant may not be enlarged on bail.
6. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in regard to grant or refusal of bail under the provisions of Section 37 of NDPS Act. In the case of Union of India Vs Niyazuddin Sk and another, reported in 2017 (4) Crimes 384 (SC), the Hon'ble Apex Court while setting aside the Page 7 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined order of the High Court granting bail to the accused indicted for possessing commercial quantity of contraband without discussing the two mandatory conditions appearing in section 37of the Act viz; (1) the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence & (2) the person is not likely to commit any offence on bail, while rejecting bail, in paras 7, 8 & 9 of the judgment held as under:-
(7) Section 37 of NDPS Act contains special provisions with regard to the grant of bail in respect of certain offences enumerated under the said section. They are:-
(1) In the case of person accused of an offence punishable under section 19. (2) Under section
24. (3) Under Section 27A and (4) Of offences involving commercial quantity. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the Page 8 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined application for bail to a person accused of the enumerated offences under section 37 of the NDPS Act, in case, the court proposes to grant bail to such person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr. PC or any other enactment, (1) the court must be satisfied that there is reasonable ground for believing that the person is not guilty of such offence; (2) that person is not likely to commit any offence while on bail.
(8) There is no such consideration with regard to the mandatory requirements, while releasing the respondents on bail.
(9) Hence, we are stratified that the matter needs to be considered afresh by the High Court. Impugned order is set aside and the matter is remitted to the High Court for fresh Page 9 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined consideration. It will be open to the parties to take all available contentious to the High Court.
7. In the case of Satpal Singh Vs The State of Punjab, reported in 2018 (5) Supreme 705, the Hon'ble Apex Court while rejecting bail to an accused indicted for the allegations of possession of commercial quantity of contraband in Head note C & para 15 of the judgment held as under:-
(c) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 37, 22 and 29 - Instantly quantity of drug commercial - Order could not be passed by High Court u/s 438 or 439, Cr.PC without reference to section 37 and without entering a finding on the required level of satisfaction - Impugned order set aside.
15. Be that as it may, the order dated 21.09.2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the Page 10 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined facts and circumstances of the case, the High Court could not have and should not have passed the order under Sections 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21.09.2017 is only to be set aside and we do so.
8. Therefore, the decisions rendered by the Hon'ble Apex Court in Niyazuddin Sk's case & Satpal Singh's Case (supra) make the legal proposition abundantly clear and also settles the legal controversy at rest that in case of the accusations against accused regarding possession of commercial quantity of the contraband, the court has to render findings regarding, (i) the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence & (ii) the person is not likely to commit any offence on bail, and if these conditions Page 11 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined are not satisfied by the court, the accused is not entitled bail.
9. It is apt to mention here that the Hon'ble Apex Court in the case of N.C.B Vs Krishan Lal, reported in AIR 1991 S.C 588 held that unless conditions prescribed under section 37 of the NDPS Act are not fulfilled, the court has no discretion to relax these conditions in order to give the benefit of bail to an accused.
10. In the present case, the prosecution has recovered contraband from the applicant accused and the prosecution has shown involvement of the applicant accused as the applicant accused was present at the factory premises when the raid was carried out and recovered the contraband seized from the applicant accused. It is apt to reiterate here that the contraband seized from the factory premises is of commercial in nature weighing 8.400 kgs Alprazolam.
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11. At the same time, this Court cannot lose sight of the fact that the menace of the crime of smuggling of contraband drugs is on increase and therefore, the perpetrators of the crime who are destroying the society and younger generations rendering them incapacitated by falling prey to drug abuse must be dealt with iron hands. The crime alleged against applicant accused is against the society and by his criminal activities, he is spoiling the young generation of the country. Such types of offences are to be dealt with severity and with heavy hands. Showing leniency in such matters would be really a case of misplaced sympathy. The criminal act of the applicant/accused operating in a manner as one of the members of drug cartel manufacturing commercial quantity of contraband Alprazolam is destructive, and is aimed to destroy the social fiber of the country, therefore, curtailment of his liberty is reasonable. The granting of bail to the applicant accused would lead to the danger of the course of justice being thwarted. This Court, therefore, holds that this is a fittest Page 13 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023 NEUTRAL CITATION R/CR.MA/5915/2023 ORDER DATED: 23/08/2023 undefined case where discretion cannot be exercised in favour of the applicant accused.
12. In view of above discussion, this Court does not see any reason to enlarge present applicant on bail and therefore, present application deserves to be dismissed and the same is dismissed. Accordingly, Rule is discharged.
(S. V. PINTO,J) H.M. PATHAN Page 14 of 14 Downloaded on : Sun Sep 17 02:16:53 IST 2023