Gujarat High Court
Manishbhai Navaldas Badani vs State Of Gujarat on 14 October, 2021
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/10901/2021 ORDER DATED: 14/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10901 of 2021
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MANISHBHAI NAVALDAS BADANI
Versus
STATE OF GUJARAT
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Appearance:
MR YN RAVANI(718) for the Applicant(s) No. 1
MR H K PATEL, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 14/10/2021
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being CR-I/11208037201391 /2020 registered with Kuvadava Road Police Station, Rajkot for offence under Sections 8(C) and 20(B) of the N.D.P.S.Act.
2. Learned advocate for the applicant submitted that during the course of investigation, the Investigating Agency has flouted the provisions of Sections 42 & 50 of the N.D.P.S. Act (herein after referred to as the "Act") which still go to the root of the matter and in fact entire prosecution would stand vitiated. It is submitted that the search was carried out without any warrant. The applicant was not taken to the nearest Gazzeted Officer and was not given any opportunity to be examined in presence of Gazeeted Officer or Magistrate.
3. It is submitted that there is nothing on record to indicate that the report, as contemplated under Section 42 of the Act, was forwarded to the Superior Officer. It is submitted that the Page 1 of 8 Downloaded on : Mon Jan 17 00:01:01 IST 2022 R/CR.MA/10901/2021 ORDER DATED: 14/10/2021 safeguards under Sections 42 & 50 of the Act are mandatory keeping in view of the reasons of the false allegations and vulnerability of the citizens to be wrongfully implicated, and therefore, as the Investigating Agency has not complied this mandatory provision, the applicant is entitled to be enlarged on regular bail.
4. It is submitted that the place of raid was outside the city and not surrounded by the general public, and therefore, it cannot be treated to be a public place. Under such circumstances, strict compliance of the provisions is mandatory, whereas, in present case, such search has proceeded without following the necessity of getting the applicant examined infront of Gazetted Officer or Magistrate.
5. It is submitted that in any case, the quantity involved being Ganja was less than commercial quantity, and therefore, rigorous of Section 37 will not be applicable. Moreover, the applicant has no antecedents. It is submitted that the co- accused, who are named in the charge-sheet, have been enlarged on regular bail.
6. It is submitted that there are other inconsistencies in the investigation which would cast doubt upon the samples collected during the course of investigation particularly the probability of the Investigating Officer himself tempering with the alleged substance while the same lied in the custody of the Investigating Officer cannot be ruled out.
7. In support of the arguments, learned advocate for the applicant has relied upon the decision of the Apex Court in case Page 2 of 8 Downloaded on : Mon Jan 17 00:01:01 IST 2022 R/CR.MA/10901/2021 ORDER DATED: 14/10/2021 of State of Rajasthan Vs. Jagraj Singh @ Hansa reported in 2016(11) SCC 687 to contend that even in case where the compliance of Section 50 of the Act is mandatory and non- compliance of Section 50 not only vitiate the trial, but can also vitiate the conviction and sentence.
8. Learned advocate for the applicant has then cited decision of the Apex Court in case of Abdul Rashid Ibrahim Mansuri Verssus State of Gujarat, reported in 2000(2) SCC 513 to argue that requirement of Section 42 of the Act, if not complied, would cause prejudice to the accused, and therefore, wherever Officer has reason to believe from personal knowledge or information about the narco substance in any building, conveyance or in a enclosed place, it is imperative for the Officer to take it down in writing and forthwith report to the immediate superior officer.
9. On the issue of compliance of Section 50 of the Act even in case where the contraband is not found from the person, the learned advocate for the applicant has placed reliance on an unreported decision of Kerala High Court in case of Sarath Vs. State of Kerala passed in Bail Application No.4033 of 2021 dated 22.07.2021, wherein it is observed that even on bail stage compliance of Section 50 of the Act is required.
10. As against this, learned APP has strongly opposed the grant of application submitting the facts of compliance of provisions of the N.D.P.S. Act which is apparent even on perusal of the FIR.
11. Learned APP has cited decision of Apex Court reported in Page 3 of 8 Downloaded on : Mon Jan 17 00:01:01 IST 2022 R/CR.MA/10901/2021 ORDER DATED: 14/10/2021 AIR 2009 SC 1378 to submit that Section 42 of the Act is exempted in cases of running raid. Moreover, from the FIR, it is submitted that when the search was performed in the presence of the applicant, no narco substance was found, however, it was from the vehicle car which the applicant was hiding the narco substance Ganja weightage16.7 Kilo Gram was found.
12. It is submitted that in so far as parity is concerned, the nature of evidence against the co-accused persons were limited to the statement of co-accused, as it was during the investigation of the present applicant, other names were disclosed, whereas in case of the applicant, he was found in conscious possession of the contraband.
13. Having considered the rival submissions made by learned advocates for the parties and having perused the documents on record, from the narration of FIR and the method and manner in which the applicant was intercepted in the car driven by the applicant and narco substance being Ganja to the extent of 16.254 Kg. was found.
14. The Court is of the prima facie opinion that the same was meant for supplying to other co-accused persons, who were to thereafter, sell this contraband in an open market. The applicant , therefore, is an important link of supply of narco substance from its manufacturer to the open market. Therefore, narcotic substance below commercial quantity is found from the conscious possession of the applicant and at the same time, the Court has to consider that it is a part of organized crime, and therefore, merely not attracting of rigours of Section 37 of the Act, may not automatically entitled the applicant to be released Page 4 of 8 Downloaded on : Mon Jan 17 00:01:01 IST 2022 R/CR.MA/10901/2021 ORDER DATED: 14/10/2021 on bail.
15. The Apex Court in case of Saikou Jabbi Vs. State of Maharashtra reported in 2004(2) SCC 186 has held that where the substance is not found in presence of accused in that case, the requirement of Section 50 of the Act personal storage is not attracted. In the case before the Apex Court, the contraband substance was hidden in the suitcase of the accused at the Airport and during search of the suitcase, the contraband article was recovered.
16. In the instant case, offence was disclosed as following:-
"Accused Manishdan Badani kept 16.254 kg intoxicating substance Ganja of Rs. 97254/- in his Hyundai car for selling without any pass or permit and he was found with the muddamal of total Rs. 507524/-, which included a mobile phone, cost Rs. 10000/-, Hyundai i-20 Car with registration number - G.J.14.A.A. 1515, cost Rs. 400000/- and two rexin bags, cost Rs.00/00, and thereby he had committed an offence.
As per the fact revealed during the investigation of the applicant accused Manishdan Navaldan Badani had purchased the said Ganja from accused Hasugiri @ Hasmukhgar Hemgar Gosai (Goswami). There were six packets of the said Ganja. Among them, 2 packets were to be sold to accused Bhupatbhai Hathibhai Dhadhal. Accused Bhupat Dhadhal was to pay Rs. 16000/- per kilogram. The remaining two kilogram Ganja was to be given to accused Prakashnath Gururamnath Nathji Sampraday. Accused Hasugiri had sent the said Ganja through his man Sureshbhai Ganeshbhai Kachhiya. Accused Page 5 of 8 Downloaded on : Mon Jan 17 00:01:01 IST 2022 R/CR.MA/10901/2021 ORDER DATED: 14/10/2021 Manishdan was going to give two packets of the said Ganja to accused Bhupatbhai Kathi directly after taking delivery of Ganja from Doliya Boundary near Sayala. Accused Manishdan had been arrested with the said Ganja before he could give the same to accused Bhupatbhai, who was going to pay Rs.16000/- per kilogram, and to accused Prakashnath, who was going to receive the remaining two packets of it."
17. As per the charge-sheet now filed against the applicant, the case of the prosecution is accused Manishdan Badani kept 16.254 kg intoxicating substance Ganja of Rs. 97254/- in his Hyundai car for selling without any pass or permit and he was found with the muddamal of total Rs. 507524/-.
As per the fact revealed during the investigation of the accused Manishdan, accused Manishdan had purchased the said Ganja from accused Hasmukhgiri @ Hasugiri. There were six packets of the said Ganja . Among them, 2 packets were to be sold to accused Bhupatbhai Kathi. Accused Bhupat Dhadhal was to pay Rs. 16000/- per kilogram. The remaining two kilograms Ganja was to be given to accused Prakashnath. Accused Hasugiri had sent the said Ganja through his man Sureshbhai Ganeshbhai Kachhiya. Accused Hasugiri purchased the Ganja for accused Manishdan, who was arrested from Surat, and gave the said Ganja to accused Manishdan at Doliya Boundary near Sayala through the absconding accused Sureshbhai Kachhiya. Accused Manishdan was going to give two packets of the said Ganja to accused Bhupatbhai Kathi directly after taking delivery of the same. Accused Manishdan had been arrested with the said Ganja before he could give the same to Page 6 of 8 Downloaded on : Mon Jan 17 00:01:01 IST 2022 R/CR.MA/10901/2021 ORDER DATED: 14/10/2021 accused Bhupatbhai, who was going to pay Rs.16000/- per kilogram, and to accused Prakashnath, who was going to receive the remaining two packets of it.
18. The reliance placed by the learned advocate on the decision of the Apex Court, it would be appropriate to observe that the decision had been so rendered by the Apex Court were upon the conviction recorded on the respective parties, wherein upon evidence being led during the course of trial, the conclusion regarding requirement of Sections 42 & 50 of the Act were recorded as to whether such requirements have been satisfied factually or not.
19. In the instant case, the manner and method in which the raid had taken place intercepting the applicant while traveling on highway and finding of 2 bags consisting of contraband in the vehicle prima facie, the investigation done so far will not be vitiated on the ground of non-compliance of Section 50 of the Act.
20. The decision relied upon by the applicant in case Sarath (supra), it would be necessary to indicate manner and method in which the applicants therein were found in possession of narco substance in the pocket purse of the applicant and still there was non-compliance on the part of the Investigating Officer. In Paragrpah No.9, it is recorded as under:-
"9. It is true that the detection of the crime was not the direct result of the body search conducted by the Sub Inspector. As noticed earlier, he had searched the body of the petitioners immediately on seeing them, for the purpose of ascertaining whether they carried any arms or weapons with them. At that time, slightest doubt was not there to Page 7 of 8 Downloaded on : Mon Jan 17 00:01:01 IST 2022 R/CR.MA/10901/2021 ORDER DATED: 14/10/2021 suspect that they had carried any offensive articles like narcotic drug or other substance. They had readily related their name and addresses and only when the Sub Inspector wanted to ascertain or counter check the address that they were asked to open their purses. Anyhow, absolutely no attempt has been made to comply with Section 50 of the Act. Before conducting the body search, the right of the petitioners to be searched in the presence of a gazetted officer or a Magistrate should have been conveyed to them, which was not done. As noted earlier, that would vitiate the very search and seizure, and therefore, the said mahazar prepared should be taken as non est."
21. It is, in the aforesaid situation, that the Court has taken into consideration the non-compliance of Section 50 of the Act to grant the bail to the accused. The differentiating factor being the search of "person" in case before Kerala High Court as against search of the vehicle in the present case. Hence, this case would not be of any assistance to the case of the applicant.
22. For the aforesaid reasons, the Court does not find any reason to interfere with the order of the Sessions Court which has assigned cogent reasons in rejecting the bail application of the applicant and hence, no case is made out for exercising the discretion in favour of the applicant. The application, therefore, stands rejected. Rule is discharged.
(A.Y. KOGJE, J) GIRISH Page 8 of 8 Downloaded on : Mon Jan 17 00:01:01 IST 2022