Gujarat High Court
Sujal Vijaybhai Patel vs State Of Gujarat & on 2 March, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/3107/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 3107 of 2017
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SUJAL VIJAYBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ANSHIN DESAI, SR. ADVOCATE, MR VAIBHAV V GOSWAMY,
ADVOCATE for the Applicant(s) No. 1
MR CHINTAN H DAVE, ADVOCATE for the Respondent(s) No. 2
MS MH BHATT, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 02/03/2017
ORAL ORDER
1. This is a successive bail application preferred by the applicant, who is arraigned as accused in DRI/AZU/NDPS-1/2011 , which is presently being tried as Sessions Case No. 5 of 2012 before the City Sessions Court, Ahmedabad, for the offence punishable under Sections 22, 23, 24, 25, 27A, 28, 29, 30, 38 read with Section 8c of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), and Section 120(B) of the Indian Penal Code.
2. The applicant came to be arrested on 16.12.2011 and is presently in custody in Sabarmati Central Jail, Ahmedabad. The applicant was released on temporary bail on a couple of occasions and he surrendered well within time on all such occasions.
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3. The applicant had, earlier, preferred an application being Criminal Misc. Application No. 14483 of 2012 and this Court vide its order dated 31.01.2013 rejected the same on detailed consideration on merits.
4. Against the same, the applicant had preferred Appeal (Criminal) No. 1717 of 2014 arising out of Special Leave Petition (Criminal) No. 3558 of 2013. This was tagged with other matters and the question, which was being considered by the Apex Court was whether the persons accused of committing an offence under the Act could be enlarged on bail in view of the stipulations contained in Section 37 of the NDPS Act. After examining the scope and ambit of Section 8(c) of the NDPS Act and other provisions, the Apex Court concluded as under at Paragraphs-34, 35 and 36;
"34. On the above analysis of the provisions of chapters VI and VII of the 1985 Rules, were of the opinion, both these Chapters contain Rules permitting and regulating the import and export of narcotic drugs and psychotropic substances other than those specified in the Schedule-I to the 1985 Rules subject to various conditions and procedure stipulated in Chapter VI. Whereas Chapter VII deals exclusively wit various other aspects of DEALING IN psychotropic substances and the conditions subject tow which such DEALING IN is permitted. We are of the opinion that both Rules 53 and Page 2 of 18 HC-NIC Page 2 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER 64 are really in the nature of exception to the general scheme of Chapters VI and VII respectively containing a list of narcotic drugs and psychotropic substances which cannot be dealt in any manner notwithstanding the other provisions of these two chapters. We are of the clear opinion that neither Rule 53 nor Rule 64 is a source of authority for prohibiting the DEALING In narcotic drugs and psychotropic substances, the source is Section 8. Rajesh Kumar Gupta's case in our view is wrongly decided.
35. In view of our conclusions, the complete analysis of the implications Section 8015 of the Act is not really called for in the instant case. It is requires to be stated essentially the Drugs & Cosmetics Act, 1948, deals with various operations of manufacturer, sale, purchase etc. of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act operate in addition to the provisions of the 1940 Act.
36. In the light of our above conclusion the correctness of the orders impugned in all the Criminal Appeals is normally Section 80. Application of the Drugs and Cosmetics Act, 1948 not barred. The provisions of this Act or the Rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder required to be considered by the Bench of appropriate strength. However, in view Page 3 of 18 HC-NIC Page 3 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER of the fact that most of these matters are old matters [pertaining to years 2006 to 2013], we deem it appropriate to remit all these matters to the concerned High Courts for passing of appropriate orders in the light of this judgment. "
5. The applicant, thereafter, had approached this Court again by preferring Criminal Misc. Application No.19670/2014, which this Court rejected while holding thus;
"7. Having heard both the sides and having considered the material on record, more particularly, the findings and the observations of the Apex Court in Criminal Appeal No.1717 of 2014 and allied matters so also for the reasons to follow hereinafter, this application for the Regular Bail under Section 439 is dismissed.
8. It is to be noted from the affidavit filed by the respondent that repeatedly applications are made before the trial Court by the accused, which is the cause of prolonging the trial, so much so that the Court needed to make an observation that the delay can be attributed directly to the applicant accused.
11. perusing the record and proceeding, this court is of the firm opinion that, the trial is being delayed because the accused is frequently giving such kind of applications which takes considerable time in hearing and passing orders.
This fact may be noted by
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prosecution/I.O. And the same be
brought to the notice of higher courts whenever bail application is preferred by him.- (Exhibit-III).
It can be further noticed that list of all Criminal Misc. Applications moved by the applicant herein as provided in the affidavit of the Deputy Director, is nearly 23 in number. These are clear indications of as to why the prosecution cannot be blamed for the slow pace of the trial with regard to the request on the ground of delay in the trial.
9.This Court has considered the matter at length on merit in the earlier round and found the case of the petitioner not fit for consideration. There would not be any requirement for giving separate reasons except those already given herein above barring only those which will be required after the decision of the Apex Court, therefore, those given earlier shall be construed as part of this order.
10. Resultantly, this application for grant of regular bail is rejected."
6. This order came to be passed on 08.05.2015, and thereafter, one of the co-accused approached this Court by way of Criminal Misc. Application No. 17689 of 2014, which came to be rejected by this Court vide order dated 27.04.2016. He, therefore, approached the Apex Court by preferring Special Leave Petition (Criminal) No. 3857 of 2016, which came to be allowed by the Apex Page 5 of 18 HC-NIC Page 5 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER Court, relying on the report of the Directorate of Central Forensic Laboratory(for short, 'CFSL') dated 04.11.2015 being Report No. CFSL-2015/C-899, wherein, it was indicated that the chemical in question was not methamphetamine Hydrochloride and instead it was mephedrone, which is not a narcotic and psychotropic substance. This considering the report of the CFSL, the Apex Court enlarged the concerned co-accused on bail. The Apex Court, further, observed that since the concerned accused was in custody since 17.12.2011, the trial Court concerned shall conduct the matter expeditiously and render the judgment after appreciating the evidence that may come on record without being influenced by the observations made by it. It, further, had directed that the co-accused to cooperate with the trial with a specific direction to complete the trial within one year. This was ordered on 29.07.2016.
7. This very accused, namely Mr. Abhijeet Prabhakar Konduskar , then, approached this Court again by filing quashing petition under Section 482 of the Code of Criminal Procedure being Criminal Misc. Application No.32518 of 2016 and the coordinate Bench vide its order dated 22.12.2016 granted ad-interim-relief and stayed the trial. That matter is now posted for hearing on 07.03.2017.
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8. Yet, another co-accused, Mr. Mr. Pramod
Narhari Manjrekar, is granted bail by the Sessions Court, which has not been challenged by the State.
9. The applicant is, therefore, before this Court seeking parity as both Mr. Abhijeet Prabhakar Konduskar and Mr. Pramod Narhari Manjrekar have been enlarged on bail by the Apex Court and the trial Court, respectively.
10. This Court has heard the learned Sr. Advocate, Mr. Anshin Desai, appearing with Mr. Goswami, learned Advocate for the applicant, who has fervently urged that the challenge in this application is limited to the ground of parity as also the delayed trial. He has urged that the person, who was caught by the prosecuting agency with 432 kilograms of methaphetamine hydrochloride and 81 kilograms of ketamine hydrochloride, has been enlarged on regular bail, as all the exhibits, which had been sent to CFSL have failed in negative result. Thus, in absence of, methaphetamine hydrochloride, the Apex Court granted regular bail, and therefore, the same should also be applied in case of the present applicant. He also has urged that so far as Mr. Pramod Narhari Manjrekar is concerned, he too was alleged to procure all the goods, which had contained methaphetamine hydrochloride, alprazolam and ketamine hydrochloride and yet, he has been granted regular Page 7 of 18 HC-NIC Page 7 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER bail, and therefore, present applicant also cannot be denied the benefit of parity, cannot make a grievance of prejudice of the respondent singling out the petitioner. He also urged that there are no criminal antecedents of the petitioner. Yet, another aspect that has been emphasized before this Court is that there has been no criminal antecedents of the present petitioner. Said details had been wrongly presented, at the time of first bail application, now, this factum is not under challenge that the applicant does not have any criminal antecedents.
11. On merits, no arguments has been put forth, since, this Court had earlier concluded against the very applicant on merits, on earlier occasion.
12. Learned Advocate, Mr. Chintan Dave, appearing for Respondent No.2-Directorate of Revenue Intelligence urged that the trial has been stayed so far as one of the accused is concerned, but, six witnesses have already been examined. Further, at the behest of the very applicant, the trial has been transferred from the one Court to another Court, and therefore, delay cannot be attributed to the State. He, further, has urged that the case of the present applicant is not similar to those, who have already been enlarged on bail. In case of the present applicant, he was Page 8 of 18 HC-NIC Page 8 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER when apprehended, he was found to be possessing all the three substances, viz. methaphetamine, alprazolam and ketamine hydrochloride. He, further, has urged that the statement made under Section 67 of the NDPS Act cannot be given a go-bye at this stage to allow this application. According to him, this is not a case, where the applicant was manufacturing or needed the substances in question for any scientific purpose and more particularly, when he consciously attempted to export it by accepting consideration, the Court has rightly rejected his earlier application for bail, and therefore, no interference is called for.
13. Having, thus, heard the learned Counsels on both the sides, at the outset, it is to be noted that on earlier occasion this Court had considered, at length, the regular bail application of the present applicant and not only on the ground of legal provisions but on merits also, had found no reason to entertain such application. Further, while considering scope and ambit of various rules and more particularly, the rules made under Chapter-VI of the NDPS Rules, this Court found that the applicant worked as a courier and allegedly attempted to export the substances in question illegal by hiding the packets as ostensibly containing the packets of flour Maida snacks etc.. It was also noted that he had no license, admittedly, nor was he authorized to possess the Page 9 of 18 HC-NIC Page 9 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER substance like methaphetamine, ketamine and alprazolam in such a huge quantity. This Court also had referred to the rigors of Section 37 of the NDPS Act, where, two conditions are cumulative and not alternative. It was held that in absence of any license, permit or authorization either for the purpose of manufacturing or for possessing or for sale or import or export of the substances in question, the case of the applicant would not fall in the exception carved out under Section 8 of the NDPS Act. It was, further, held and observed that huge quantity of psychotropic substances seized from the accused even when is not mentioned in Schedule-I it would still become an offence under Section 8(C) read with Section 22 and he cannot be enlarged on regular bail for not having fallen under any of the exceptions carved out in the provision itself. This Court also had referred to the criminal antecedents of the present applicant and such a request was rejected on 31.01.2013.
14. Considering the details of the complaints and also the evidence, which had been led before this Court at the time of considering his earlier application for regular bail, the Court deemed it fit not to entertain the application for regular bail. Nothing has changed since then, except, two circumstances (1) grant of bail to two of the co- accused, where, one of the co-accused is granted regular bail by the Apex Court on its having found Page 10 of 18 HC-NIC Page 10 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER absence of one of the substances in question, i.e. methaphetamine, in all the exhibits sent to the CFSL, whereas, the other co-accused was granted regular bail by the trial Court on the ground of parity belatedly delay in trial.
15. This Court notices that in the complaint given by Respondent No.2, the role of the two accused, who have been enlarged on bail is of having manufactured 432 kilograms of methaphetamine hydrochloride and 82 kilograms of ketamine hydrochloride. In the order of the Apex Court there is a specific reference of absence of methaphetamine in the exhibits sent to CFSL. However, there is no reference of either presence or absence of ketamine hydrochloride in the same.
16. When specifically queried to the learned Advocate for Respondent No.2, Mr. Dave, he submitted that in none of the exhibits ketamine hydrochloride has been found. Therefore, parity is sought on the ground that there is absence of the substance methaphetamine in the exhibits, which has been seized by Respondent No.2 during the course of investigation so also the negative report in respect of ketamine hydrochloride given by the CFSL.
17. Today, an affidavit is filed for and on behalf of Respondent No.2 by Ms. Neha Lal, Dy.
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Director, Directorate of Revenue Intelligence,
Ahmedabad Zonal Unit, Ahmedabad. She has stated on oath that the substance alleged to be methaphetamine hydrochloride was re-tested and it was found to be Mephedrone, which is not covered under the provisions of the NDPS Act. It is, further, stated that Abhijit Prabhakar Konduskar and Dr. Pramod Narhari Manjrekar have been released on bail the ground that CFSL has found the substances Mephedrone in the exhibits sent to it for examination and not methaphetamine hydrochloride.
18. It is not in dispute that 37.458 kilograms of off-white crystals, which was tested positive for methaphetamine hydrochloride by Directorate of Forensic Science, Gandhinagar, and the quantity that had been seized from Mr. Konduskar, when was examined by the CFSL, New Delhi, it did not test positive for methaphetamine hydrochloride. It is also the say of the deponent that Alprazolam was also found from Flat No.10, Amrut Appartment, Gujarat Society, Opp. Red Cross Blood Bank, Paldi, Ahmedabad, in a huge quantity of 47 packets, which is covered under the NDPS Act. Affidavit filed today also has referred to the residential address of the applicant as Flat No. 10 in Paragraph-5 of the affidavit, which is a wrong reference. It is also their case that the courier parcels booked by M/s. Anshanu Exports, Ahmedabad, at Air Cargo Page 12 of 18 HC-NIC Page 12 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER Complex, Ahmedabad, for export, when were examined by the DRI on 03.12.0211 vide panchnama dated 03/04.12.2011, four packets (1 kilograms each) of white coloured odourless powder contained in silver foil packets with no markings on them and concealed in packets of branded food items and camouflaged among various other items contained in the respective cartons, tested positive for ketamine hydrochloride.
19. It is the say of the deponent that the 37.458 kilograms of off-white crystals, which tested positive for methaphetamine hydrochloride, when examined by DFS, Gandhinagar, was seized from M/s. Anshanu Exports, Ahmedabad, which was found to be manufactured by M/s. Kamud Drugs Pvt. Ltd, Sangli, of which Abhijit Prabhakar Konduskar is Director. Further, the transfer of the said chemical to M/s. Anshanu Exports, Ahmedabad, through invoices wherein purchaser name was M/s. Daksh Industries, Patna, which was not found to be existing, was made by Pramod Narhari Manjrekar. It is, therefore, emphasized that both Konduskar and Manjrekar were enlarged on bail by the Apex Court on finding absence of methaphetamine by CFSL. Reliance is also placed on the decision of the coordinate Bench in Criminal Misc. Application No. 898 of 2016, where, the bail application of one of the co-accused, namely Mr. Kapil Arora, who was charged with dealing of 10 kilograms of Ketamine Page 13 of 18 HC-NIC Page 13 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER and Alprazolam tablets of 48.225 kilograms, was rejected by this Court and which order came to be confirmed by the Apex Court vide its order dated 12.05.2016 passed in Special Leave to Petition (Criminal) No. 3812 of 2016.
20. What is alleged is the conscious possession of the applicant in commercial quantity of ketamine and alprazolam tablets so also methaphetamine hydrochloride. It is, further, their say that the examination of six prosecution witnesses is over, whereas, the examination-in- chief of the seventh witness is going on.
21. As mentioned herein above, This Court had specified that only on two counts, viz. (1) parity, as the two co-accused have been enlarged on bail and (2) delay in the trial, this Court is entertaining this successive application for bail.
22. So far as the delay in trial is concerned, the Court notices that the Apex Court, while enlarging Mr. Abhijit P. Konduskar on bail, vide its order dated 29.07.2016 passed in Special Leave Petition (Criminal) No. 3857 of 2016 directed the trial Court to complete the trial within a period of one year. Such an order was passed on 29.07.2016 and he was also directed to cooperate in the trial without taking unnecessary adjournments.
Such directions having already been issued by the
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Apex Court, no further direction would be necessary in that regard. The trial Court is, however, reminded of the said direction and to ensure to adhere to the same. Any order in the form of request on the part of the Apex Court is always a direction and it will need to be obeyed accordingly.
23. Before this Court deals with the aspect of parity, it is to be noted that the applicant has no criminal antecedents and that at the time of hearing of earlier bail applications preferred by him correct facts were not presented. There is a wrong reference of the applicant have criminal antecedents. Although, nothing turns on that in this application, which has not been entertained in view of the discussion that followed.
24. Yet, another aspect that needs to be specifically mentioned at this stage is of the application made by the applicant for transfer of proceedings from one court to another Court, although, such a request has been granted and an administrative order has been passed by the learned Principal Judge of City Civil and Sessions Court, Ahmedabad, that by itself cannot be a ground to deny the discretion in favour of the applicant.
25. The only essential and vital aspect, therefore, required to be considered is whether the Page 15 of 18 HC-NIC Page 15 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER parity would have a scope so far as the present applicant is concerned. It is, of course, his case and not controverted by the prosecuting agency that he was not present in India and was in Dubai, when the DRI seized the material in question and had he come back four days thereafter. Nothing objectionable has been seized from his residence, i.e. Flat No.10, Amrut Appartment, Gujarat Society, Opp. Red Cross Blood Bank, Paldi, Ahmedabad. As per the complaint given by the DRI and so far as the another premises owned by the applicant is concerned, the same was rented on leave and license basis from where the substances in question were alleged to have been seized. Prima facie case against him, while rejecting earlier bail application has been considered. Revisiting those facts need not be necessary in successive bail application.
26. Under the circumstances, the emphasize is also to grant the bail on the ground as he has been in custody for about five years and that he was released on temporary bail for a couple of times and on all such occasions, he surrendered in time. This ground per se may not be potent enough to allow regular bail.
27. As noted above, on earlier occasion, the applications of the present applicant were rejected on the ground that he is prima facie involved in an Page 16 of 18 HC-NIC Page 16 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER offence under the NDPS act involving huge quantity of NDPS. So far as the present application is concerned, except, the aspect of parity and delay in trial, there cannot be any requirement of revisiting the facts again, as there is no change of circumstances.
28. From the affidavit filed by Respondent No.2 today, it is clear that so far as co-accused, Mr. Abhijit Konduskar is concerned, he was alleged to have manufactured huge quantity containing methaphetamine hydrochloride, which was negatived by the CFSL, when all exhibits were sent to CFSL resulted in absence of methaphetamine. Again there is no involvement of his so far as ketamine hydrochloride and alprazolam are concerned. So far as the aspect of seizure of Ketamine Hydrochloride from Mr. Abhijit Konduskar is concerned, it is orally stated on behalf of Respondent No.2 that same is being looked after by DRI, Mumbai, and it is not connected with the seizure effected in this matter.
29. So far as the other co-accused. Dr. Pramod Narhari Manjrekar is concerned, according to the DRI, he is alleged to have procured methaphetamine hydrochloride only and for procuring both ketamine hydrochloride and alprazolam, a specific role is attributed to another co-accused, namely Kapil Arora, whose bail application is also rejected by Page 17 of 18 HC-NIC Page 17 of 18 Created On Sun Aug 13 08:11:52 IST 2017 R/CR.MA/3107/2017 ORDER this Court. In such a view of the matter, the case of the petitioner on the ground parity cannot be considered. His employee / manager not only is faced prima facie with the 37 kilograms of methaphetamine hydrochloride but also ketamine hydrochloride and alprazolam packets. Of course, on the ground of CFSL report negating presence of methaphetamine hydrochloride, he would receive benefit, had that been the only seizure. With seizure of ketamine and alprazolam packets from his ayurvedic firm and with no negative report in relation to these two substances, his case cannot be equated with those co-accused, who are enlarged on regular bail. His case is similar to that of Mr. Kapil Arora, whose bail application, even though, rejected prior to the order of the Apex Court in July, 2016, contain similar facts.
30. Resultantly, this application is DISMISSED with a reiteration to the trial Court to adhere to the time-limit set by the Apex Court and to complete the trial within one year.
31. It shall, however, be open to the applicant to APPROACH this Court again in case of breach of the above direction issued by the Apex Court.
(MS SONIA GOKANI, J.) UMESH Page 18 of 18 HC-NIC Page 18 of 18 Created On Sun Aug 13 08:11:52 IST 2017