Gujarat High Court
Aiyub Mohammad Yusuf Bokda vs State Of Gujarat on 6 October, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
R/CR.MA/14404/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14404 of 2020
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AIYUB MOHAMMAD YUSUF BOKDA
Versus
STATE OF GUJARAT
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Appearance:
MR KARTIK V PANDYA(2435) 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 : 06/10/2020
ORAL ORDER
1. Heard learned advocate Mr. Ijaj Qureshi for learned advocate Mr. Kartik V. Pandya for the applicant and learned Assistant Government Pleader Mr.Hardik Soni for the respondent - State through video conference.
2. This is a successive bail application under Section 439 of the Code of Criminal Procedure, 1973 in connection with the offences registered under Section8(C), 21(C) and 25 of the Narcotics Drugs Psychotropic Substance Act, 1985 (for short 'the NDPS Act').
3. The applicant after filing of the chargesheet preferred Criminal Misc. Application No.1915 of 2020, which was withdrawn after arguing the same for some Page 1 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER time and the following order was passed.
"Heard learned advocate Mr. Shivangkumar K. Trivedi for the applicant and learned Additional Public Prosecutor Ms. Chetna M. Shah for the respondent State through video conferencing.
After arguing for some time, learned advocate Mr. Shivangkumar K. Trivedi for the applicant seeks permission to withdraw this application.
Application stands disposed of, as withdrawn."
4.1 The brief facts of the case are that a complaint was filed against the applicant alleging that applicant is in business of selling codeine medicine illegally and therefore, his premises along with two panchs was raided on the secret information received by the complainant and during the course of the raid, raiding party found 1240 bottles containing codeine of 100 ml each being total value of Rs.1,51,389/.
4.2. After the seizure, the officers of the Forensic Science Laboratory were called and after testing, the "codeine" was found in all sealed packed bottles. The samples were drawn from the six packets containing the cough syrup containing codeine and after the samples were drawn and muddamal was sealed properly.
4.3. The applicant filed Criminal Misc. Application No.619 of 2009 in the Court of Principal Sessions Judge, Panchmahal for regular bail, which was Page 2 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER rejected. Thereafter, the applicant filed Misc. Criminal Application No.803 of 2019 before the Principal Judge, Panchmahal, after filing of the chargesheet, which was rejected on 8th January 2020.
4.4. The applicant thereafter, preferred the above stated Criminal Misc. Application No.1915 of 2020 before this Court, which was withdrawn on 3rd June 2020 after arguing the matter.
5.1. Learned advocate Mr. Ijaj Qureshi appearing for learned advocate Mr. Kartik V. Pandya submitted that the applicant has been wrongly arraigned for the alleged offences under the NDPS Act. It was submitted that the contraband which is recovered is more than small quantity but less than commercial quantity as one bottle contain only 10 mg codeine phosphate IP and therefore, total comes to only 12.4 grams and therefore, the applicant is required to be enlarged on regular bail considering the quantity of the codeine in the seized material.
5.2. Learned advocate further submitted that the statements recorded during the course of investigation also do not implicate the applicant and it has come out from the chargesheet papers that the applicant was not going to sell the cough syrup and therefore, the applicant should be enlarged on bail.
5.3. It was further submitted that the bottles recovered from the applicant are cough syrup Page 3 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER
containing 10 mg codeine phosphate and therefore, the seized material recovered from the applicant does not fall within the definition of commercial quantity.
5.4. Learned advocate also submitted that the prosecution has not recorded any statement of the person who has purchased the cough syrup from the applicant and there is no corroborative evidence against the applicant. It was also submitted that there is noncompliance of Sections 42 and 50 of the NDPS Act, which is mandatory in nature.
5.5. It was further submitted for the query raised by the Court that what are the changed circumstances for preferring the successive bail application that after passing of the order dated 3rd June 2020, the trial has not proceeded and it is not likely to proceed in view of the COVID19 pandemic situation. It was also submitted that the applicant is in jail since 28th September 2019 and therefore, the applicant is required to be enlarged on bail considering the uncertainty of commencing of trial.
6.1. On the other hand, the learned APP Mr. Hardik Soni submitted that this is a successive bail application and all the grounds on merits which are submitted before this Court by the learned advocate for the applicant were already argued and submitted by the learned advocate appearing in Criminal Misc. Application No. 1915 of 2020 and as the Court was not inclined to grant bail at the relevant time, Page 4 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER after considering the submissions made on behalf of the applicant, the learned advocate Mr. Shivangkumar K. Trivedi for the applicant sought permission to withdraw the bail application.
6.2. It was submitted that in view of the judgment of the Supreme Court in case of Hirasing v. Union of India reported in AIR 2020 SC 3255, the seized quantity is to be considered as entirely and not only the quantity of codeine in the cough syrup. It was submitted that as 1240 bottles of 10 mg is seized and therefore, a total of 12400 mg. i.e. 1240 gm i.e. 1.24 kg. of seized material is to be considered as a contraband material for the alleged offences.
6.3. It was also submitted that the applicant is found in possession of the contraband material, which was seized during the course of raid after following the due procedure under Sections 42 and 50 of the Act and even otherwise, such contention raised by the applicant is in nature of defense which can be considered at the time of trial.
6.4. Learned APP also submitted that in view of the fact that there is no change of circumstances and the case of the applicant cannot be considered differently than the other accused persons who are also languishing in jail during this COVID19 Pandemic situation and therefore, the ground that the trial is likely to be delayed cannot be considered as changed circumstances for entertaining the successive Page 5 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER bail application.
7. Having considered the submissions made by the learned advocates for the respective parties and having gone through the materials on record, it appears that the learned advocate has tried his best to putforth the case of the applicant reiterating the contentions, which were raised before this Court on 3rd June 2020 at the time of consideration of the regular bail application after filing of the charge sheet. However, in view of the settled legal position of considering the successive bail application, this Court cannot go into the same contentions raised before the Court earlier. Learned advocate for the applicant has submitted with regard to the changed circumstances that trial is likely to be delayed. However, such contention cannot be considered as changed circumstances after withdrawal of earlier bail application in view of the fact that COVID19 pandemic situation is affecting all the persons, who are in the jail. Therefore, contention of delay in trial cannot be considered for granting bail to the applicant in successive bail application. Even otherwise the Committee appointed by the High Court has also not permitted to grant bail during the trial for the offences under the NDPS Act as under: "Minutes of Meeting of the High Power Committee
1. The meeting of the High Power Committee has Page 6 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER been convened through whatsapp video conference call. Justice R M Chhaya, Judge High Court of Gujarat, Ms. Sangeeta Singh, ACS, Home and Mr. K L N Rao, ADG (Prison) and Mr.Mitesh Amin, Sr. Advocate and Public Prosecutor, Gujarat High Court have been connected.
2.Hon'ble Apex Court in "Suo Moto Writ Petition No. 1/2020, In Re : Contagion of Covid19 virus in Prison" while keeping in mind the emergent and urgent situation which has resulted in arisen to the health crisis due to out break of Coronavirus (Covid19) specifically with respect to the protection of health and welfare of the prisoners in order to restrict the transmission of Covid19 has issued directions to reduce the overcrowding of prisoners in the present context of pandemic Coronavirus.
3.The observations and directions issued by the Hon'ble Apex Court were taken into consideration by High Power Committee consisting of Justice R M Chhaya, Judge High Court of Gujarat, Ms. Sangeeta Singh, ACS, Home and Mr. K L N Rao, Dy. DG (Prison). The first meeting of the committee was convened on 24th March, 2020 and Mr. K L N Rao, ADG (Prison) was requested to have the details of the under trial prisoners (UTPs). Said details are perused by the committee and it has been decided to have the guidelines for proper implementation of the directions issued by the Hon'ble Supreme Court in the above referred case.
4.Guidelines for the proper implementation of the directions issued by the Hon'ble Supreme Court in Suo Moto Writ Petition No. 1/2020, In Re : Contagion of Covid 19 virus in Prison".
5.Following jail inmates may be considered for release on temporary/interim bail for the period of 2 months or till such time that the State Government withdraw the Notification under the Epidemics Act, 1897, whichever is earlier:
1.All temporary bail applications which are Page 7 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER required to be preferred before the Ld. Judicial Magistrate shall be decided in the jail premise itself. The duty Magistrate/s as ordered by the Ld. Principal District and Sessions Judge shall visit jail along with the bare minimum staff and the number of panel advocates as may be decided by the Secretaries of District Legal Services Authorities (depending on the number of bail applications).
2.A jail inmate facing trial for an offence punishable with imprisonment up to 7 years or less and the case is exclusively triable by the Judicial Magistrate.
3.A jail inmate facing trial for an offence punishable with imprisonment up to 7 years or less and who has been granted bail by the competent Criminal Court but not released, as he is unable to furnish bond or execute surety.
4.A jail inmate who is detained under chapter VIII of the CrPC i.e u/s 107, 108, 109 and 151 of Cr.PC.
5.A jail inmate facing trial for an offence punishable with imprisonment up to 7 years or less and is of unsound mind and he needs to be dealt under chapter XXV of the Code.
6.There are all possibilities that jail inmates who have failed to honour the order of maintenance passed u/s 125 of the CrPC or in other matrimonial proceedings may be in jail. These jail inmates may be released on with or without condition/s.
7.Persons who are undergoing Civil Imprisonment in connection with flouting or disobedience of the order passed by the Civil Courts shall also be considered for release.
8.Keeping in mind the direction issued by the Hon'ble Supreme Court in"Suo Moto Writ Petition No. 1/2020, In Re : Contagion of Covid 19 virus in Prison" the Jail Authority shall pass Page 8 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER appropriate orders for the release of an inmate on Parole and Furlough is concerned.
9.The Jail Authority shall pass appropriate orders for extension of period of Parole and Furlough for those convicts who are already on Parole and Furlough leave.
10.The jail inmates who are enlarged on temporary bail shall report to the concern police station within whose jurisdiction they are residing, once every 30 days.
11.Duty Magistrate may impose other conditions which he thinks fit appropriate, depending on the facts and circumstances of each case.
12.A jail inmate who has been convicted by the Chief Judicial Magistrate and/or Judicial Magistrate and directed him to undergo imprisonment for less than 7 years may prefer an application for temporary bail for the period of two months, before the Court of Sessions. Duty Sessions Judge who is required to decide such temporary bail applications in the Court premise itself or the jail premise or through Video Conference, which ever is feasible and the most suitable in the present situation.
13.A jail inmate who has been convicted by the Court of Sessions and directed him to undergo imprisonment for less than 7 years may prefer an application for temporary bail for the period of two months, before the Hon'ble High Court. All these temporary bail applications shall be decided through the Video Conference.
6.Above referred to guidelines for releasing an inmate on temporary bail shall not apply, if the inmate has alleged to have committed any of the following offences.
(I) Persons facing investigation/trial under:
(a) offences for which punishment provided is 7 years or more.
(b) any law dealing with terrorism.
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(c) Narcotics Drugs and Psychotropic Substances Act.
(d) Prevention of Money Laundering Act.
(e) Unlawful Activities (Prevention) Act.
(f) any or all offences against women and children.
(g) GUJCOC.
(h) any offence/s against the national security.
(i) all offences being investigated by the National Investigation Agency.
(j) Economic offence and
(k) Financial fraud with Bank, NBFC, public at large.
(II) A jail inmate who has been previously convicted by the court of competent jurisdiction in another offence/s and same is yet not set aside by the Higher Court.
(III) An UTP and/or convict who is facing another trial for other offences shall not be considered.
.........."
8. With regard to the merits canvassed by the learned advocate for the applicant as the same were not dealt with in the earlier order dated 3rd June, 2020 in view of the withdrawal of the matter by the learned advocate Mr.Trivedi at the relevant time, it is pertinent to note that in view of the judgment in case of Hirasing (supra), the entire seized quantity is required to be considered as a contraband goods and therefore, the contention of the learned advocate for the applicant that only 12.4 gm of codeine is seized is prima facie not acceptable.
9. With regard to the contention as to no statement is recorded of the persons who purchased any bottle from the applicant and that the provisions of Page 10 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER Sections 42 and 50 of the NDPS Act are not complied with, the same are in nature of defense, which may be considered at the time of trial.
10. The legal position is well settled in view of the following judgments that the successive bail application cannot be entertained :
(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 Page 11 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER a criminal proceeding, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our 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 Page 12 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021 R/CR.MA/14404/2020 ORDER fact-situation. That is what prompted Shetty, J. to describe the impugned order as 'a bit out of the ordinary'. Judicial restraint! demands that we say no more."
11. In view of the above foregoing reasons, this application being devoid of any merits, is summarily rejected.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 13 of 13 Downloaded on : Mon Mar 01 13:57:41 IST 2021