Gujarat High Court
Fakir Aminabanu Wife Of Majidkhan ... vs State Of Gujarat on 30 June, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.MA/11019/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 11019 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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FAKIR AMINABANU WIFE OF MAJIDKHAN UMARKHAN....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR RAJESH M AGRAWAL, ADVOCATE for the Applicant(s) No. 1
MR VO JOSHI, ADVOCATE for the Applicant(s) No. 1
MR NJ SHAH APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 30/06/2015
CAV JUDGMENT
1. This is an application for anticipatory bail Section 438 of Page 1 of 8 R/CR.MA/11019/2015 CAV JUDGMENT the Code of Criminal Procedure in connection with the FIR bearing CR No. II - 41 of 2015 registered with Visnagar City Police Station, for the offences punishable under Sections 8(c), 20(B), 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act").
2. As per the case of the prosecution, on 5.4.2015 at about 11:55 hrs., one house situated at Gatiyavas, Visnagar, was raided by the police on the basis of secret information by one Police Sub Inspector, R.S. Cell, Gandhinagar, to the effect that the present applicant stored opium (Ganja) in her house as stated above for sale purpose. The said fact was verified and the said house was raided as shown by one Mansuri Raziyaben Nazirbhai Husenbhai, resident of Lal Darwaja, Visnagar. The police went to that house as shown by the said lady and when the house was raided, contraband weighing 3 Kg. 192 Grms. in all was found and same was seized. From one drawer of wooden table, contraband weighing 2 Kg. 568 Grms. was found and also in one aluminum tin, which was found in the drawer of a wooden table, in a bag, the contraband opium weighting 624 Grms. was found. Therefore, aforesaid offence is registered against the present applicant.
3. Learned advocate Mr. Agrawal for the applicant Page 2 of 8 R/CR.MA/11019/2015 CAV JUDGMENT submitted that present applicant is innocent lady and she has been wrongly implicated in the alleged offence. He further submitted that at event of raid, the applicant was not present and the prosecution has not produced any evidence regarding the ownership of the house of the applicant. He further submitted that the recovered contraband is non-commercial. He also submitted that the house, which was raided, has no connection with the present applicant and the present applicant is residing at another area of Visnagar. He therefore, submitted that there is no nexus between the house alleged to raided and contraband alleged to be seized from the raided house by the police. He also submitted that as per the case of the prosecution the contraband opium weighting 3 Kg. 192 Grms in all was found that is to say 2 Kg. 568 Grm was found in one plastic bag and 694 Grms. was found in one aluminum tin on which the name of one Aaftabhusen Imamsha Diwan was inscribed, but there may be many persons of the identical names in that area. He also submitted that without verifying the identity of present applicant, the police booked her in the offence. He also submitted that the applicant is a lady and therefore, her interest is required to be protected by granting anticipatory bail. He also submitted that considering the gravity of the offence and role on the part of the applicant, the Page 3 of 8 R/CR.MA/11019/2015 CAV JUDGMENT applicant may kindly be granted anticipatory bail.
4. Learned advocate Mr. Agrawal for the applicant relied upon the decision of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others reported in (2011) Supreme Court Cases 694 and submitted that the protection of right to personal liberty is required to be maintained. In that case, it is held that exercise of jurisdiction requires maintaining of perfect balance between two conflicting viz. sanctity or individual liberty and interest of society.
5. Learned advocate also relied upon the decision in the case of Shri Gurbaksh Singh Sibbia and Ors. Vs. State of Punjab reported in (1980) 2 Supreme Court Cases 565 and submitted that liberal interpretation of Section 438 of the Code of Criminal Procedure is required to be considered and personal liberty cannot be whittled down.
6. Learned advocate for the applicant submitted that after considering the observations made in the aforesaid two cases and also facts and circumstances of the case, present applicant may be granted anticipatory bail by imposing suitable conditions and herein this case, the possession of the present applicant is not found properly by the trapping officer Page 4 of 8 R/CR.MA/11019/2015 CAV JUDGMENT and even there is no evidence to show that the present applicant is residing at the house where the raid was carried out.
7. As against, learned APP Mr. Shah appearing for the State strongly opposed the application of the applicant and submitted that looking to the seriousness of the offence, in which the present applicant is involved, the anticipatory bail is application is not required to be granted in her favour. He submitted that from the complaint as well as panchnama, it is clear that the applicant is residing at the raided house. He stated that one Mansuri Rajiyaben Najirbhai was present at the time of raid and she has shown the house of present applicant. Therefore, learned APP submitted that said house was indicated by the independent witness as named above. Therefore, as per his submission, the applicant is residing at the house where raid was carried out and the said house is of her ownership. Learned APP further submitted that when the raid was carried out at the house of the applicant, the son of the applicant namely Aaftabhusain Immamsa was found there and the applicant was not there at that time of raid. On inquiry, the said Aaftabhusain told that his mother is present applicant. He also submitted that the present applicant is involved in other 8 criminal cases for the offences of the N.D.P.S. Act and Page 5 of 8 R/CR.MA/11019/2015 CAV JUDGMENT therefore, she is hardcore criminal. He therefore, submitted that present applicant may not be granted anticipatory bail considering the nature of the offence and gravity of the offence and huge quantity of opium, which was recovered from the possession of the applicant.
8. Perused the application and police papers produced before this Court. This Court has also considered the submissions canvassed by the learned advocates for the respective parties. Here, it is pertinent to note that from the house of the applicant, the huge quantity of opium i.e. 3 Kg. 192 Grm. was found. This Court has also perused the statements of the witnesses and panchnama. It appears from the statement of panch, that the house from where the opium was found, is of the applicant and the applicant stored opium and said house was indicated by one Mansuri Raziyaben to the police. The statement of one Sahinbanu Sabbirsha Hajisha Fakir recorded by the police reflects that present applicant is her aunt and she is doing household work at the house of applicant. She further stated that from the house of present applicant, 3 Kg. 192 Grms. opium was recovered and the applicant was not present at the time of raid. She also stated in her statement that present applicant is hardcore criminal and she is having criminal antecedents and as per statement, Page 6 of 8 R/CR.MA/11019/2015 CAV JUDGMENT there are two/three criminal cases are pending against the present applicant. She also stated that the applicant is permanent resident of the house, where the raid was carried out. The applicant is headstrong lady. As per the statement of panch Sahinbanu, the earlier marriage of the present applicant took place with one Immasha and she has son from that marriage. Thereafter, she took divorce and married with one Majidkhan. Said wittiness also stated that present applicant is a habitual offender and no one can dare to give any information of the applicant to anyone.
9. From the above statement of Sahinbanu and other documents of police papers, it appears that the present applicant is residing at the house, where raid was carried out and the opium in huge quantity was found. Therefore, this Court is not inclined to grant anticipatory bail to the applicant.
10. No doubt, learned advocate Mr. Agrawal for the applicant cited the decisions are totally binding but looking to the facts and circumstances of the case and specifically the established fact that from the house of the applicant, huge quantity of contraband article like opium was found and prima facie, same is established.
11. In view of the above and considering the role of the Page 7 of 8 R/CR.MA/11019/2015 CAV JUDGMENT applicant, no case is made out to exercise discretionary powers under Section 438 of the Code of Criminal Procedure, 1973 in favour of the applicant.
12. Accordingly, this application fails and is hereby dismissed. Rule is discharged.
(Z.K.SAIYED, J.) YNVYAS Page 8 of 8