Gujarat High Court
Vipal @ Vipul Sanjaygiri Goswami vs State Of Gujarat on 25 November, 2022
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13518 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VIPAL @ VIPUL SANJAYGIRI GOSWAMI
Versus
STATE OF GUJARAT
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Appearance:
MS. KETKI P JHA(9864) for the Applicant(s) No. 1
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 25/11/2022
CAV JUDGMENT
1. Present successive bail application under section 439 of the Code of Criminal Procedure has been filed by the applicant herein - original accused for releasing him on regular bail in connection with the alleged offence registered as CR No.11192011210459 of 2021 registered with Bopal Page 1 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 Police Station, District Ahmedabad (Rural) dated 16/11/2021 for the offences punishable under sections 8(C), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act. for short).
2. The brief fact giving rise to the application is that on 15.11.2021 the complainant i.e. -Munalkumar 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 15.11.2021 at around 11.30pm 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. A table enumerating the contraband seized during the investigation is enumerated hereinunder :
Page 2 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 Contraband Quantity Small Commercial Seized Quantity Quantity HYBRID GANJA 300 gms 1000 gms 20 kgs AMERICAN 501 gms 100 gms 1 kg CHARAS CHARAS 221 gms 100gms 1 kg MAGIC 224 gms N.A. N.A. MUSHROOMS* SHATTER* 43 gms 100 gms 1 kg 2.1. It is pertinent to note that the applicant accused was apprehended by police on the basis of statement of co-
accused and was sent to police remand between 19.11.2021 to 28.11.2021. It is relevant to note that on 25.11.2021, the investigating officer has filed reports for addition of offence under Section 24 of the NDPS Act. No contraband substance was found from the possession of the applicant herein. The said report was ordered to be kept with FIR.
2.2. The applicant was arrested by the NCB officials on the same day e.g. 29.09.2021 and his custody was obtained on remand upto 1.10.2021 and since then the applicant is in judicial custody and at present is in the Jail as an under- trial prisoner.
2.3. On 22.12.2021, the applicant has approached the Page 3 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 learned Special NDPS Court praying for regular bail vide Criminal Misc. Application 3808 of 2021 which came to be rejected. On 21.03.2022, the applicant has preferred regular bail before this Court vide Criminal Misc. Application No.1358 of 2022 which came to be disposed of as withdrawn.
2.4. That on 11.05.2022, the investigating agency has concluded the investigation qua the impugned FIR and filed the charge-sheet.
2.5. That the applicant herein preferred regular bail after charge-sheet before the learned Special Judge (NDPS) & 2 nd Additional Sessions Judge at Ahmedabad, Mirzapur vide Criminal Misc. Application No.1825 of 2022 which came to be rejected vide order dated 29.06.2022. Hence, the applicant has preferred the present successive bail application.
3. Heard Ms.Ketki Jha, learned advocate for the applicant and Mr.H.K. Patel, learned advocate for the State and perused the material placed on record.
4. Ms.Jha, learned advocate for the applicant has vehemently submitted that the applicant has not committed the alleged offences. Even if the case of the prosecution is accepted in its entirety, the alleged seizure of the Page 4 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 contraband articles, that too only from the co-accused A-1 and A-2, is either small quantity or intermediate quantity and therefore, the rigors of Section 37 of the NDPS Act would not apply. That at the time of alleged seizure, the present applicant was not even present along with the co- accused Accused No.1 and 2 and hence, bar of Section 37 of the NDPS Act would not be applicable against the present applicant accused. The applicant was not found in possession of any of the contraband which has been recovered during the course of investigation which was being carried out by police officers and is arraigned as an accused only on the basis of the inadmissible statements of the co-accused recorded by the police officers which are not admissible in the eyes of law. The investigating agency has falsely roped the applicant accused in the present case on the basis of statement of the co-accused i.e. accused No.1 from whose possession the investigating agency has recovered the contraband during the course of investigation. It is a well-settled tenet of law that even assuming at the highest that the information given or disclosure made by the co-accused nothing more is not admissible piece of material against co-accused and on the basis of such inadmissible material, the continued incarceration of the petitioners is nothing but abuse of process of law. No other material evidence is placed on record by the investigating agency to substantiate the commission of the alleged offence and in fact, the allegations are not even connecting the applicant Page 5 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 to the accused No.1 and 2. That a false link is sought to established through the statements made by charge-sheet witnesses, Pragneshbhai - PW 59 - and Pravinbhai - PW 60 which are in respect of lawful transfer of money through cryptocurrency route, that too upon payment of requisite commission amount, without anything else. Therefore, in the light of the aforesaid principles as held in myriad of judgments by the Hon'ble Supreme Court, the accused /applicant is required to be enlarged on regular bail. There is no material evidence placed on record to show any nexus between the alleged offences and the involvement of the applicant accused. Therefore, it is evident that the applicant accused is falsely roped into the impugned FIR. The applicant herein has been falsely implicated in the present case and even if all the allegations of the FIR are considered in its entirety without any rebuttals, no case is made out against the applicant accused herein. The conclusion of trial is likely to take a sufficiently long time and if the applicant is not enlarged on regular bail, he shall suffer in his defense. That the applicant has completely cooperated with the investigation agency and is willing to comply with all the procedures established by law and remain present as and when required. Since the charge-sheet has been filed and the investigation qua the applicant is long over, the applicant's custody is no longer required. The Applicant herein is permanent resident of the address as mentioned in the captioned application and is having deep roots in the Page 6 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 society. The applicant is having movable as well as immovable properties and he is not likely to abscond or tamper with the evidence and or jump the bail. She has also submitted that the applicant is in jail since last one year.
The learned advocate for the applicant has relied upon the decisions of the Hon'ble Apex Court in the case of Bharat Chaudhary Vs. Union of India rendered in SLP (Cri.) No.5703 of 2021 dated 13/12/2021 as well as decision in the case of Ragini Dwivedi Vs. State of Karnataka, reported in 2021 SCC ONLINE SC 174, Making above submission and relying upon above decisions, learned advocate for the applicant has prayed to exercise the discretion and order to release the applicant on bail.
5. Learned APP appearing for the State has submitted that the applicant is involved in commission of the offence by way of conspiracy under section 29 of the NDPS Act. It is also submitted that the applicant was in contact with the accused No.1 from whom the contraband is found. It is also submitted that based upon the statement of the co-accused, the name of the applicant has come out. The applicant is the person who has arranged for the funds through cryptocurrency and witnesses namely Pragneshbhai PW No.59 and Pravinbhai Ex.60 have given statements to that Page 7 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 effect who know the present applicant since 2017, who were approaching them in conversion of currency from Indian rupee to US $ and as per the telephonic talk with the applicant 7.2 to 382 ethereum was converted in the wallet address and screen shot to that effect has also been recovered by the investigating agency. As such, as per the say of the learned APP, amount of Rs.18,84,000/- was transferred into cryptocurrency ethereum at the instance of the applicant in the wallet No.0xc753260C5326816Ee5E2AE4e61F2d4Abb7d170f4. It is also submitted that laptop, pendrives and other documents were recovered from the flat rented by the accused No.1 Vandit Patel and panchnama to that effect has been prepared. Many papers are recovered wherein barcodes were also recovered in which in the transaction bar code of Rs.18,84,000/- was also there. The said barcodes were used for payment through cryptocurrency against delivery of the parcels of the contraband. The police has also seized one diary which was produced by witness Ravi Gajjar wherein transactions between accused No.1 - Vandit Patel and Darshil in cryptocurrency have been mentioned. Mobile phone is also recovered from the applicant from which various applications have been extracted from overall call details of the mobile phone of the applicant is also sought for by the investigating agency wherein call details reveals that the applicant was in touch with other co-accused through phone. It is also submitted Page 8 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 that there is conspiracy hatched by all the accused and they have imported various contraband substance through parcels and are distributed in various parts of Gujarat and out of Gujarat through courier wherein various persons have been used on commission basis to receive the parcels and as such, there is a scam of importing contraband drugs and are distributed in various parts. The involvement of the present applicant by way of statement of co-accused as well as panchnama drawn and call details of the phone of the applicant prima facie out a strong case against the applicant. The contraband seized at the initial juncture is commercial quantity. There is bar of section 37 of the NDPS Act. He has further submitted that the data of the mobile phone of the present applicant has been retrieved by the FSL and prima facie some material is found against the applicant from the data which points out towards involvement of the present applicant in the offence in question. He has further submitted that the offence is serious in nature and various contraband substances have been seized from the co-accused Nos.1 and 2 in which the present applicant is involved in the conspiracy in importing the drugs and running the network of selling the contraband substances and quantity which is recovered is commercial quantity.
He has further submitted that considering the chargesheet papers, and nature and gravity of the offence, Page 9 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 this Hon'ble Court may not exercise the discretion to release the applicant on bail.
6. Having heard the learned advocates for the respective parties and considering the material placed on record, it is clear that the chargesheet has been filed, which is admitted position. The name of the present applicant is disclosed right from the beginning in the FIR itself which cannot be denied. Looking to the chargesheet papers, it appears that the applicant is named by the accused No.1. It also comes out from the statements of the witnesses Ex.59 and 60 that cryptocurrency ethereum has been used through dark website which was deposited in the wallet No.0xc753260C5326816Ee5E2AE4e61F2d4Abb7d170f4. It also reveals that the present applicant was in constant touch with the co-accused as per the CDR which has been recovered and placed in the chargesheet papers. He has been in touch with the Vandit Patel, Neel Patel, Zeel and accused Ajay Kapur. Though the call details do not reveal what was the conversion between the applicant and other co-accused, but it prima facie shows involvement of the applicant along with the other co-accused in commission of the offence and it cannot be said that the applicant was not knowing the co-accused. The diary is also recovered at the instance of witness Ravi Gajjar in which the cryptocurrency transactions made is also mentioned. The said diary is also on record. Various devises and gazettes recovered from Page 10 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 the accused nos.1 and 2 were sent for FSL and one of the panchnama reveals the data of mobile phone of the applicant was recovered. The report of the FSL placed on record reveals that data which were deleted from the mobile have been retrieved by the FSL including various APPS used in commission of the offence, some photographs / images of the drugs, are also retrieved. On perusal of the investigation papers, it is clear that the case against the applicant do not rest only on the basis of statement of co-accused. There is evidence on record which shows that the applicant is not alien to the transactions of contraband substance in question. Prima facie, the allegation of conspiracy and also section 24 do get support from the investigation papers particularly FSL reports, which are on record. It is not a case only on the basis of statement of co-accused but there are substantial material in the chargesheet papers against the applicant, which prima facie shows involvement of the applicant in the offence in question.
7. From the investigation papers, it has also come on record that the transaction of importing the contraband substances through various parcels in various places was going on since last three years and the main persons who are dealing with the same are in contact of the present applicant, considering the provisions of section 29 of the NDPS Act, the police papers and the documentary evidence pertaining to the FSL as well as pertaining to the scientific Page 11 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 report, conspiracy amongst all the accused is made out as even the import of the various drugs through various parcels and payment through cryptocurrency ethereum has also come on record.
8. The there is prima facie involvement of the applicant on the basis of reports of the FSL, the data retrieved by the FSL from the mobile phone of the applicant and connection of the applicant with other co-accused as per the CDR, placed on record.
9. Though the muddamal is not recovered from the present applicant but on considering the chargesheet papers, prima facie case is made out against the present applicant. Counting the quantity of all the contraband substances recovered, the muddamal is of commercial quantity and hence, section 37 is applicable.
10. So far as the decision of the Hon'ble Apex Court in the case of Bharat Chaudhary (supra), relied upon by the learned advocate for the applicant is concerned, there was a case where the accused were not found in possession of the contraband but at the same time scientific devices were seized from the office of the accused. However, there was no scientific report received by the Court. In the present case, there are scientific - FSL reports retrieving the date of the mobile of the applicant connecting the applicant with Page 12 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022 R/CR.MA/13518/2022 CAV JUDGMENT DATED: 25/11/2022 commission of the offence and there are incriminating material against the applicant herein.
11. So far as the decision in the case of Ragini Dwivedi (supra), relied upon by the learned advocate for the applicant is concerned, in the said case Whatsup chat between the applicant and other accused was not believed as there was no report of the FSL and report was not received by the Court and there was no material to establish live link with the co-accused. Here in this case, call details of the present applicant with other accused clearly reveals that the applicant was in live contact with other accused. Further, FSL report retrieving the data of the mobile of the applicant also points out the involvement of the applicant in the commission of the offence in question.
12. Over and above, there was no reason for the co- accused Nos.1 and 2 to falsely implicate the present applicant and to give his name. Considering the statement of the co-accused Nos.1 and 2 against the applicant, FSL reports, statement of witnesses Ex.59 and 60, CDR and other investigation papers, prima facie involvement of the applicant herein cannot be ruled out. Even otherwise, the offence is against the society at large which cannot be taken lightly. Now a days, the menace of drugs is affecting mainly young generation of the society. Even there is bar under section 37 of the NDPS Act.
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13. For the reasons aforesaid, this court is not inclined to exercise discretion in favour of the present applicant. Present application is hereby rejected. Rule is discharged.
Sd/-
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 14 of 14 Downloaded on : Sat Dec 24 00:08:04 IST 2022