Gujarat High Court
Maulik Ashokbhai Dani vs State Of Gujarat on 22 September, 2020
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/7896/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7896 of 2020
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MAULIK ASHOKBHAI DANI
Versus
STATE OF GUJARAT
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Appearance:
MR UTKARSH J DAVE(10620) for the Applicant(s) No. 1
MR. PARTH H BHATT(6381) for the Respondent(s) No. 2
MR RONAK RAVAL, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 22/09/2020
ORAL ORDER
1. This is the successive bail application filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 ("the Code" for short) with a prayer that the applicant be enlarged on regular bail in connection with the complaint bearing File No.DRI/AZU/SRU/B/NDPS-02/2018 registered with Directorate of Revenue Intelligence, Surat Zonal Unit, for having allegedly committed the offence punishable under Section 8(c) along with 9(vi) read with Sections 22, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act" for short).
2. It is mainly alleged in the complaint that the complainant upon receiving specific information conducted a raid at the premises of accused No.1, namely, Kalpesh Dodiya and recovered a piece of paper, which contained the names of various ingredients Page 1 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER required to prepare the drug Mephedrone i.e. substance which is prohibited as per the NDPS Act. Further, two polythene bags consisting of Mephedrone and spent Palladium Charcoal powder were also recovered from the possession of accused No.1. On the basis of the information given by accused No.1, the premises belonging to the applicant came to be raided. Thereafter, the factory premises which was leased in favour of the applicant came to be raided and certain chemicals were found in the said premises along with other packing materials. Therefore, accused No.1 and the applicant came to be arrested for commission of the alleged offences punishable under the NDPS Act.
3. Heard learned advocate Mr.Utkarsh J. Dave for the applicant, learned advocate Mr.Parth H. Bhatt appearing for respondent No.2 - DRI and learned Additional Public Prosecutor for respondent No.1 - State.
4. At the outset, it is required to be noted that the applicant had earlier preferred application under Section 439 of the Code. All the three applications came to be withdrawn by him. Thereafter, the successive bail application was also filed by the applicant, which was also withdrawn. Thus, when this Court was not inclined to entertain the case of the applicant on merits, all the applications came to be withdrawn. The present application has been filed by the applicant on the ground of change of circumstance. Therefore, in the present application, learned advocate for the applicant has argued about the change of circumstance after the Page 2 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER withdrawal of the last application by the applicant.
4.1 Learned advocate Mr.Dave appearing for the applicant referred the Report dated 20.12.2018 given by the Central Revenues Control Laboratory (CRCL), New Delhi. After referring to the said Report, it is submitted that as per the said Report, the substance/material, which was found from the factory premises of the applicant, was not a narcotic substance. At this stage, it is submitted that as per the provisions contained in the NDPS Act, the said substance, which was seized from the factory premises of the applicant, was sent to Central Forensic Science Laboratory, Hyderabad. It is submitted that the Report given by the said Laboratory was received after the withdrawal of the last application filed by the applicant and, therefore, it is a change of circumstance. It is submitted that as per the said Report also, quartz has been detected in Exhbit-A2 and methylamine has been detected in Exhibit-B2. It is submitted that both these substances are not narcotic substances and, therefore, the Report given by the Hyderabad Laboratory is also negative and, therefore, when narcotic substance has not been found, case of the applicant be considered for grant of regular bail.
4.2 Learned advocate for the applicant further submitted that the case of the prosecution/DRI rests on statement of co-accused, namely, Kalpesh Dodiya and statement of the present applicant, which is recorded under Section 67 of the NDPS Act. It is submitted that Page 3 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER the statement of the co-accused as well as statement recorded under Section 67 of the NDPS Act is a very weak piece of evidence.
4.3 Learned advocate Mr.Dave has placed reliance upon the following decisions rendered by the Honourable Supreme Court:
(1) Mohamed Farsin Vs. State Rep. by Intelligence Officer, Judgment dated 04.09.2019 rendered in Criminal Appeal No.296 of 2014; (2) State of Uttranchal Vs. Rajeshkumar Gupta reported in (2007) 1 SCC 355;
(3) Sujit Tiwari Vs. State of Gujarat, Judgment dated 28.01.2020 rendered in Criminal Appeal No.1897 of 2019;
(4) Toofan Singh Vs. State of Tamil Nadu, Judgment dated 08.10.2013 rendered in Criminal Appeal No.152 of 2013; (5) Sami Ullaha Vs. Superintendent Vs. Superintendent Narcotics Control Bureau, Judgment dated 07.11.2008 rendered in Criminal Appeal No.1748 of 2008.
4.4 Copies of the aforesaid decisions are placed on record by the learned advocate for the applicant with the further affidavit. After referring to the aforesaid decisions, it is mainly contended by the learned advocate Mr.Dave that the statement of co-accused is a very weak type of evidence, which needed to be corroborated by some other evidence. It is further Page 4 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER submitted that the Honourable Supreme Court has enlarged the concerned accused on bail as he was in custody since more than two years. Learned advocate has referred Paragraph-38 of the decision rendered by the Honourable Supreme Court in the case of State of Uttranchal Vs. Rajeshkumar Gupta (supra). Learned advocate Mr.Dave has also referred Para-11 of the judgment rendered by the Honourable Supreme Court in the case of Sujit Tiwari Vs. State of Gujarat (supra). Learned advocate has thereafter referred Para-13 of the decision rendered by the Honourable Supreme Court in the case of Sami Ullaha Vs. Superintendent Vs. Superintendent Narcotics Control Bureau (supra). After referring to the same, it is contended that the question as to whether the contraband found came within the purview of the commercial quantity within the meaning of Section 2(viia) or not, is one of the factors which should be taken into consideration by the Courts in the matter of grant or refusal to grant bail.
4.5 Thus, learned advocate contended that in the present case, the Reports given by both the Laboratories suggest that no narcotic substance was found from the possession of the applicant or the factory premises of the applicant and, therefore, the applicant be enlarged on bail.
4.6 It is next contended that the applicant was enlarged on temporary bail on couple of occasions and he has not misused the liberty granted to him and he has surrendered before the Jail Authority in time.
Page 5 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020R/CR.MA/7896/2020 ORDER Therefore, the applicant be enlarged on bail.
5. On the other hand, learned advocate Mr.Parth H. Bhatt appearing for respondent No.2 DRI has vehemently opposed this application and mainly contended that there is no change of circumstance, after the withdrawal of the last bail application filed by the applicant and, therefore, in absence of change of circumstance, this Court may not entertain this application. At this stage, learned advocate Mr.Bhatt has referred the affidavit-in-reply to the additional affidavit filed by the applicant. It is pointed out from the said affidavit that the applicant has placed reliance upon the Report dated 23.12.2019 given by the Central Forensic Science Laboratory, Hyderabad whereby the presence of any contraband substance was not found. However, at the time of hearing of the previous bail application, reports of the CRCL, New Delhi, were on record. The very same samples were sent to Central Forensic Science Laboratory, Hyderabad also and, therefore, in fact, there is no change of circumstance.
5.1 Learned advocate Mr.Bhatt thereafter referred the Report given by the Laboratory of Hyderabad, a copy of which is placed on record at Page-116 of the compilation. Learned advocate has referred Page-119 and, thereafter, contended that presence of methylamine has been detected in Exhibit-B2. It is submitted that the said methylamine is used for the manufacture of narcotic substance. At this stage, learned advocate Mr.Bhatt also referred the complaint, which is filed Page 6 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER against the applicant and another accused and more particularly, averments made in Para-3.1.5 of the complaint. It is submitted that during the course of search of the premises, packed white coloured plastic jar mentioning sodium bromide was found. At this stage, learned advocate Mr.Bhatt has also referred Page-111 of the separate compilation i.e. letter dated 09.10.2019 written by the CRCL, New Delhi to the Deputy Director, Ministry of Finance, Directorate of Revenue Intelligence. It is submitted that as per the said Report, methylamine and bromide can be used for manufacture of narcotic substance and methylamine and bromide both are recovered from the premises of the applicant.
5.2 Learned advocate Mr.Bhatt would further contend that the applicant is not having any licence for manufacturing any chemical and, therefore, he has failed to explain why he has kept the aforesaid chemicals in his factory premises.
5.3 Thus, it is contended that there is ample material against the applicant with the Investigating Agency and, therefore, this application may not be considered on the ground of change of circumstance.
5.4 Learned advocate Mr.Bhatt would thereafter submit that in this case, in addition to the statement of the co-accused Kalpesh Dodiya, sufficient corroborative material is collected by the Investigating Agency against the applicant. At this stage, learned advocate Page 7 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER Mr.Bhatt has referred the table given in Para-4 of the affidavit-in-reply filed by respondent No.2. After referring to the same, it is contended that sufficient corroborative material is collected by the Investigating Agency in the form of statement of the witnesses as well as CDRs. Learned advocate Mr.Bhatt has also referred the further evidence which is stated in the affidavit-in-reply and call records dated 04.11.2018 and 07.11.2018 between the applicant and the co-accused Kalpesh Dodiya just prior to the date of the incident.
5.5 It is, therefore, urged that the decisions, upon which reliance is placed by the learned advocate for the applicant, would not be helpful to him in the facts of the present case and, therefore, this application may not be entertained.
5.6 Learned advocate Mr.Bhatt has also referred Sections 25 and 37 of the NDPS Act. It is submitted that as per the material available with the Investigating Agency, in past, twice the applicant has manufactured the narcotic substance and, therefore, there is reasonable apprehension on the part of the DRI that if the applicant is enlarged on regular bail, he will repeat the offence and once again he will indulge into manufacturing of the narcotic substance. It is, therefore, urged that this application be dismissed.
6. Learned Additional Public Prosecutor Mr.Ronak Raval has adopted the submissions canvassed by learned Page 8 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER advocate Mr.Parth H. Bhatt appearing for respondent No.2 DRI.
7. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the applicant had filed the application under Section 439 of the Code on three occasions and when this Court was not inclined to entertain the said applications on merits, the concerned learned advocate who was appearing for the applicant had withdrawn the said applications. Thus, in this application, this Court has to examine what is the change of circumstance. It is contended by the learned advocate for the applicant that the Report dated 23.12.2019 given by the Central Forensic Science Laboratory, Hyderabad, was received after the withdrawal of the last bail application and, therefore, this is the change of circumstance. It is contended that the said Report suggests that narcotic substance is not found. However, on the other hand, learned advocate Mr.Bhatt appearing for respondent No.2 has contended that this is not a change of circumstance, because a similar report for the same samples was given by the CRCL, New Delhi. The said Report was already available when previous bail applications were withdrawn. Thus, this Court is of the view that in fact, there is no change of circumstance after the withdrawal of the last bail application filed by the applicant.
8. However, it is true that the Report dated Page 9 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER 23.12.2019 was received after the withdrawal of the last bail application and, therefore, this Court would like to examine the contention of the learned advocate for the applicant on the report received after the withdrawal of the last bail application. As per the Report given by the Laboratory of Hyderabad, methylamine has been detected in Exhibit-B2. Similarly, as per the Report given by the CRCL, New Delhi, methylamine and sodium bromide were found from the samples which were collected from the premises of the applicant. It is a specific case of the respondent DRI that as per the Report of the CRCL, New Delhi, a copy of which is placed on record at Page-121, methylamine and sodium bromide can be used for manufacture of narcotic substance i.e. mephedrone. Thus, when both these substances i.e. methylamine and sodium bromide are recovered from the place of the applicant, it cannot be said that nothing was found from the premises of the applicant. It is a specific case of the respondent DRI that as per the material collected during the course of investigation including the statement of the co-accused as well as statement of the applicant recorded under Section 67 of the NDPS Act, in past, twice narcotic substance was manufactured at the premises of the applicant. Further, it is not even the case of the applicant that he is having licence for manufacture of any chemical in the factory premises in question.
9. It is further required to be noted that in addition to the statement of the co-accused Kalpesh Page 10 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER Dodiya as well as statement of the applicant recorded under Section 67 of the NDPS Act, there is ample corroborative evidence collected by the Investigating Agency during the course of investigation. Respondent No.2 has given details of the same in the affidavit-in- reply, which is filed on 26.08.2020, a copy of which is placed on record at Page-98 of the separate compilation. If the said corroborative evidence is carefully examined, it is revealed that the Investigating Agency has recorded the statement of witnesses including the owner of the premises, who has given the factory premises in question on lease, Call Data Records (CDRs) i.e. call details between the applicant and co-accused Kalpesh Dodiya and the transcript of call details recorded on 04.11.2018 and 07.11.2018.
10. At this stage, this Court would like to refer the decisions upon which, learned advocate for the applicant has placed reliance. In the case of Mohamed Farsin Vs. State Rep. by Intelligence Officer (Supra), the Honourable Supreme Court has observed that only evidence is the statement of the co-accused and the conversation of the concerned appellant - accused and there is no corroborative evidence connecting the said appellant with the incident in question and, therefore, the Honourable Supreme Court has observed that it is well-settled that the confession recorded when the accused is in custody is a weak piece of evidence and there must be some corroborative evidence.
Page 11 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER
In the present case, as observed hereinabove,
there is corroborative evidence collected by the
Investigating Agency against the applicant and,
therefore, the aforesaid decision would not render any assistance to the applicant.
11. In the case of State of Uttranchal Vs. Rajeshkumar Gupta (supra), after discussing the facts of the said case, when there was no material against the concerned respondent accused, the Honourable Supreme Court did not cancel the bail granted to the accused by the concerned High Court and dismissed the cancellation of bail application filed by the State. However, in the present case, the said decision would not be applicable.
12. In the case of Sujit Tiwari Vs. State of Gujarat (supra), the Honourable Supreme Court has specifically observed in Para-11 that there is a possibility that the said appellant was unaware of the physical activities of his brother and other crew members and the case of the concerned appellant accused is different from all the other accused and, therefore, the case of the concerned appellant accused was considered by the Honourable Supreme Court.
Whereas, in the present case, as discussed hereinabove, it cannot be said that the applicant was not aware about the activity of the co-accused Kalpesh Dodiya and in fact, from the material collected by the Investigating Agency, it is revealed that the substance Page 12 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER which was found from the factory premises of the applicant can be used for manufacture of mephedrone i.e. narcotic substance. Thus, the aforesaid decision would also not be applicable to the facts of the present case.
13. In the case of Sami Ullaha Vs. Superintendent Vs. Superintendent Narcotics Control Bureau (supra), the Honourable Supreme Court has observed that the question as to whether the contraband found came within the purview of the commercial quantity within the meaning of Section 2(viia) or not, is one of the factors which should be taken into consideration by the Courts in the matter of grant or refusal to grant bail.
In the present case, as discussed hereinabove, it is clear that the substance which was recovered from the factory premises of the present applicant is to be used for manufacture of contraband narcotic substance mephedrone. It is the specific case of the DRI that in past, the applicant had manufactured narcotic substance twice by using such type of substance. There is sufficient material available in the form of statement of co-accused as well as the statement of the applicant recorded under Section 67 of the NDPS Act as well as corroborative material such as transcript of call details between the applicant and the co-accused, statements of the witnesses i.e. the statement of owner of the factory premises, who has given the factory in question on lease to the applicant, Report of the concerned Laboratory. Thus, sufficient material is Page 13 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER available against the applicant in the investigation papers.
14. At this stage, provisions contained in Section 37 of the NDPS Act is also required to be kept in mind.
"37. Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless--
(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
15. Learned advocate Mr.Bhatt appearing for the respondent DRI has specifically contended that in past, the applicant has manufactured narcotic substance with the use of the aforesaid chemicals which was recovered from his premises and, therefore, if the applicant is Page 14 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020 R/CR.MA/7896/2020 ORDER enlarged on bail, the respondent DRI is having reasonable apprehension that the applicant will once again indulge into such illegal activity of manufacturing of narcotic substance mephedrone.
16. Thus, in view of the aforesaid facts and circumstances of the present case, this Court is not inclined to exercise discretion in favour of the applicant. Rule is discharged.
(VIPUL M. PANCHOLI, J.) SRILATHA Page 15 of 15 Downloaded on : Thu Sep 24 23:41:26 IST 2020