Gujarat High Court
Jeel Diptesh Parate vs State Of Gujarat on 18 January, 2023
R/CR.MA/14602/2022 ORDER DATED: 18/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14602 of 2022
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JEEL DIPTESH PARATE
Versus
STATE OF GUJARAT
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Appearance:
MR SUNIL S JOSHI(2925) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 18/01/2023
ORAL ORDER
[1] By way of this Criminal Miscellaneous Application under Section 439 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C."), the applicant - original accused No.4 has approached this Court seeking , inter alia, regular bail in connection with an F.I.R. being I-C.R. No.11192011210459 of 2021 registered on 16 th November 2021 with Bopal Police Station, District : Ahmedabad Rural for the offence punishable under Sections 8(c), 20(b), 22(c), 23(c), 24 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, "the N.D.P.S. Act").
[2] The case of the prosecution in brief can be stated as under:
On 15th November 2021, the complainant i.e. - Munalkumar Page 1 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023 R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 Dineshbhai Jaiswal, Police Sub-Inspector (PSI), SOG, Ahmedabad Rural has received secret information in writing that the Accused No.4 and 2 i.e Vandit Patel and Parth Sharma are going to be selling contraband in a vehicle being Kia Sonnet GJ-01- WA-5937 between l.00 a.m. to 5 a.m. near Bopal, Ghuma. Pursuant thereto, the complainant along with the raiding party have gone for conducting the raid. Hence, on 15 th November 2021 at around 11.30 p.m. the raiding party has found the Kia Sonnet GJ-01-WA-
5937 parked on the side under the streetlights near Ghuma, Bopal. In the car, the police have found two persons wherein the one on the driver's seat has identified himself as Vandit Patel (Accused No.1) and the one on the passenger seat has identified himself as Parth Sharma (Accused No.2). Furthermore, upon conducting a preliminary search of the car one school bag containing contraband was recovered from the accused Nos.2 and 4 and subsequent investigation was done by the investigation agency.
[3] Pursuant to the aforesaid, the applicant came to be arrested on 18th November 2021 from his residence. The applicant, thereafter, preferred a regular bail application before the learned Special Judge Page 2 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023 R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 (N.D.P.S. ) and 4th Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur being Criminal Miscellaneous Application No.3958 of 2021, however, the same was rejected by the learned Sessions Judge vide order dated 31st December 2021.
[4] The applicant, thereafter, approached this Court by way of Criminal Miscellaneous Application No.648 of 2022, however, the said application sought to be withdrawn by the applicant. Thus, vide order dated 7th March 2022, the said application came to be disposed as withdrawn.
[5] The Investigating Agency, thereafter, completed the investigation and submitted chargesheet on 11th May 2022 before the learned Special Judge (N.D.P.S.) and 2nd Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur. In view of the change circumstances, the applicant had again approached the learned Trial Court by way of Criminal Miscellaneous Application No.1512 of 2022, however, the said application came to be rejected vide order dated 10th June 2022. [6] Being aggrieved and dissatisfied with the aforesaid, the applicant has again approached this Court by way of this Criminal Miscellaneous Application under Section 439 of the Cr.P.C. seeking, inter alia, regular bail in connection with the aforesaid F.I.R.
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R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 [7] I have heard learned advocate Mr. Sunil Joshi for the applicant
and learned A.P.P. Mr. Pranav Trivedi for the respondent - State of Gujarat.
[8] Learned advocate Mr. Sunil Joshi for the applicant submitted that the investigation is over and chargesheet has been filed and there is no incriminating material found by the Investigating Agency from the present applicant. He further submitted that as such the applicant was not apprehended with the conscious possession of contraband articles. Mr. Joshi further submitted that there is no material available in the entire chargesheet connecting the present applicant with the offence in question, however, the present applicant has been falsely implicated only on the basis of statement of original accused No.1. Mr. Joshi further submitted that the entire contraband articles have been recovered from the original accused Nos.1 and 2, and thereby, though the said articles forming commercial quantity, rigour of Section 37 of the N.D.P.S. Act would not be applicable. Mr. Joshi, thereafter, submitted that now, the investigation is already over and chargesheet has been filed and there are no chances of hampering and/or tampering with the evidence of prosecution, and thereby, the present applicant cannot be kept in jail till the conclusion of trial which is not likely to be concluded in the near Page 4 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023 R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 future. Learned advocate Mr. Joshi, to substantiate his submissions, has relied upon the following judgements:
(i) Yash Jayeshbhai Champaklal Shah vs. State of Gujarat reported in 2022 SCC Online Guj 271
(ii) Sachin Makade vs. Narcotics Control Bureau reported in 2022 SCC Online Del 4294
(iii) Vikrant Singh vs. State of Punjab reported in 2022 SCC Online P&H 3584
(iv) Sehjad Isamil Marchant vs. State of Gujarat (Criminal Miscellaneous Application No.1117 of 2022 decided on 29 th September 2022 by this Court) [9] By making the above submissions, learned advocate Mr. Joshi for the applicant has prayed this Court to release the applicant on regular bail on suitable conditions.
[10] Per contra, learned A.P.P. Mr. Pranav Trivedi for the respondent - State has vehemently opposed the present application contending, inter alia, that the present applicant is involved in heinous crime and thereby, this Court may not exercise its discretionary power under Section 439 of Page 5 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023 R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 the Cr.P.C. Learned A.P.P. further submitted that the applicant is involved in commission of the offence by way of conspiracy under Section 29 of the N.D.P.S. Act. It has been further submitted that the present applicant was in active touch with the main accused No.1 from whom the contraband was found. Learned A.P.P. further submitted that from 23rd September 2021 to 10th November 2021, the present applicant and the main accused No.1 - Vandit Patel had in all 39 times telephonic conversion. Thus, learned A.P.P. submitted that the present applicant, who is also an addict, actively involved in the business of contraband articles. Learned A.P.P. further submitted that parcel, which came to be seized bearing No.292930 and tracking No.UC001463835US having 102 grams of "Ganja", was in the name of the present applicant. Learned A.P.P. further submitted that name of the present applicant came to be disclosed during the course of investigation. However, learned A.P.P. has emphatically submitted that name of the present applicant was not only on the basis of statement of the accused No.1, but one independent witness namely Dushyant Gautambhai Patidar has also in no uncertain terms stated in his statement dated 13 th December 2021 that he was the person who was on instructions given by the accused No.1 delivering parcel to the present applicant and for which, amount was being paid by the present applicant and the said amount was in turn handed over by Page 6 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023 R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 him to the main accused No.1. Therefore, according to the learned A.P.P., the person, who was regularly in touch between the present applicant and the main accused, has fortified the fact that the present applicant is actively involved in the business of contraband articles. Accordingly, learned A.P.P., relying upon the investigation papers, submitted that the case against the present applicant does not rest on the basis of the statement of the accused No.1. On the contrary, the evidence on record reveals that the present applicant is not alien to the transactions of contraband substance in question. Learned A.P.P. further submitted that bail application being R/Criminal Miscellaneous Application No.13518 of 2022 of the co-accused namely Vipal @ Vipul Sanjaygiri Goswami in connection with the F.I.R. in question whose name was disclosed on the basis of statement of the co-accused, came to be rejected by the Coordinate Bench of this Court vide order dated 25 th November 2022. Relying upon the said order, learned A.P.P. submitted that in the present case, the applicant's name was revealed during the course of investigation not only on the basis of statement of the accused No.1, but also on the basis of statement of independent witness namely Dushyant Gautambhai Patidar.
[11] By making the above submissions, learned A.P.P. has prayed this Court to dismiss the bail application of the applicant. Page 7 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023
R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 [12] I have heard learned advocates for the respective parties and have gone through the investigation papers in details. No other and further submissions have been canvassed by learned advocates for the respective parties except what are stated hereinabove.
[13] Having considered the submissions of the respective parties and having gone through the material produced on record, it appears that business of importing contraband substance through various parcels at various places was going on since last couple of years and the main persons who were dealing with the same are in active contact of the present applicant. Considering the provisions of Section 29 of the N.D.P.S. Act, police papers and the documentary evidence pertaining to the F.S.L. as well as pertaining to the scientific report, call details and statement of independent witness would prima facie suggest that the present applicant is also one of the conspirators in the conspiracy of illegal selling of contraband articles. Considering the quantity, as stated hereinabove and keeping in mind the active contact between the present applicant and the accused No.1, though the muddamal is not recovered from the present applicant, rigour of Section 37 of the N.D.P.S. Act would be applicable to the present applicant being a conspirator in the larger conspiracy of illegal trade of contraband articles. Now a days, the Page 8 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023 R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 menace of drugs is affecting the young generation of the society. Thus, in my view, the present applicant, who prima facie appears to be conspirator in the crime, does not entitle any sympathetic approach of this Court while exercising discretionary power under Section 439 of the Cr.P.C.
[14] So far as the judgement cited by the learned advocate for the applicant in the case of Yash Jayeshbhai Champaklal Shah (supra) is concerned, the said case is distinguishable on facts. In the said case, the Coordinate Bench of this Court has held that except call data, there is no other material to connect the applicant therein with the other accused persons and thus, there was no live link established between the main accused and the applicant therein. In the instant case, over and above the call data collected, the statement of independent witness namely Dushyant Gautambhai Patidar recorded which substantiates the fact that there is a live link between the present applicant and the main accused No.1.
[15] So far as the decision relied upon by the learned advocate for the applicant in the case of Sachin Makade (supra) is concerned, the Hon'ble Delhi High Court appears to have assigned no independent reasons and/ or findings of fact, which prompted the Court to exercise discretionary Page 9 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023 R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 power conferred under Section 439 of the Cr.P.C. Further, bare perusal of the said decision, would reveal that the applicants therein were the owners of one firm namely M/s. Azesto Impex Private Ltd., Nagpur and they had been implicated as accused on the basis of statement of one co- accused person namely Dipu Singh who was found with contraband articles. Thus, the sum and substance, as can be gathered from the said decision, is that the applicants therein came to be implicated on the basis of statement of the co-accused. In my view, the said fact is also distinguishable from the facts of the case on hand. As stated hereinabove, the present applicant came to be implicated in the offence not only on the basis of statement of the accused No.1, but also on the basis of statement of independent witness namely Dushyant Gautambhai Patidar as well as call details. In view of the aforesaid, decision relied upon in the case of Sachin Makade (supra) is not applicable to the facts of the present case.
[16] So far as the decision relied upon by the learned advocate for the applicant in the case of Vikrant Singh (supra) is concerned, the fact of that case is also more or less the same as that of the other aforesaid two cases whereby the accused was implicated on the basis of statement of the co-accused. The facts of the said case is also distinguishable from the facts of the case on hand as the present applicant accused came to be Page 10 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023 R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 implicated in the offence not only on the basis of statement of the accused No.1, but also on the basis of statement of independent witness namely Dushyant Gautambhai Patidar as well as call details. [17] So far as the decision relied upon by the learned advocate for the applicant in the case of Sehjad Isamil Marchant (supra) is concerned, this Court while exercising discretionary power under Section 439 of the Cr.P.C. observed therein that the applicant therein was implicated only on the basis of statement of the co-accused and the applicant therein was not found in conscious possession of the contraband product. The said decision is also distinguishable to the facts of the case on hand as the present applicant accused came to be implicated in the offence not only on the basis of statement of the accused No.1, but also on the basis of statement of independent witness namely Dushyant Gautambhai Patidar as well as call details.
[18] Over and above, grant of regular bail under Section 439 of the Cr.P.C. is in the nature of purely discretionary power of the Court, therefore, considering the totality of the facts and the evidence on record, this Court is not inclined to exercise discretion in favour of the present applicant who is prima facie connected with the offence affecting young generation of the society at large. Even otherwise, as per Page 11 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023 R/CR.MA/14602/2022 ORDER DATED: 18/01/2023 Section 37 of the N.D.P.S. Act, there is a bar in exercise of discretionary power. Accordingly, the present Criminal Miscellaneous Application fails and is hereby dismissed. Notice stands discharged.
(NIRAL R. MEHTA,J) CHANDRESH Page 12 of 12 Downloaded on : Mon Jan 23 20:37:30 IST 2023