Gujarat High Court
Anant @ Montu Jalarambhai Thakkar vs State Of Gujarat on 4 April, 2025
NEUTRAL CITATION
R/CR.MA/6629/2025 ORDER DATED: 04/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE ANTICIPATORY
BAIL) NO. 6629 of 2025
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ANANT @ MONTU JALARAMBHAI THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MALAV M MULANI(8844) for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 04/04/2025
ORAL ORDER
1. By way of the present successive pre-arrest bail application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11191021240422 of 2024 registered with Gaekwad Haweli Police Station for the ofences punishable under Sections 8(c), 21(c) and 29 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act for short).
2. Rule. Learned APP Mr. Patel waives service of Rule for the Respondent State.
3. Learned counsel for the applicant submitted that the applicant is completely innocent and has not played any Page 1 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025 NEUTRAL CITATION R/CR.MA/6629/2025 ORDER DATED: 04/04/2025 undefined role in the alleged offence. He has been falsely implicated in the present case. It was further submitted that the accused No. 1 is involved in the illegal sale of cough syrup in the Jamalpur area. A raid was carried out at the residence of the accused No.1, during which a total of 197 bottles of cough syrup containing codeine were seized, and an offence was registered against him. During the investigation, other accused individuals are sought to be implicated based on the statement of the accused No.1. Therefore, the present applicant apprehends that he may be arrested in connection with the offence solely on the basis of the co-accused's statement. The applicant submits that he is unaware of the activities carried out by the other accused and has been implicated without any incriminating material against him. The applicant is a license holder for stocking medicines and possesses a registered GST number. Additionally, the contraband seized from accused No. 1 has no nexus with the applicant, and he has not been found in possession of any illegal substances. No recovery or discovery has been made from the possession of the applicant. The applicant contended that his implication in the offence is based solely on the statement of the co- accused. The charge-sheet has been filed in the present case, which is registered as NDPS Case No. 93/2024. The applicant is ready and willing to abide by any conditions imposed by this Court, and he submits that he cannot be implicated in the offence merely based on the statement of Page 2 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025 NEUTRAL CITATION R/CR.MA/6629/2025 ORDER DATED: 04/04/2025 undefined the co-accused. Besides, the applicant is available during the course of investigation and will not flee from justice. He is ready and willing to join the investigation. In view of the above, the applicant may be granted successive anticipatory bail.
4. Learned Additional Public Prosecutor, appearing on behalf of the respondent-State, has opposed the grant of successive anticipatory bail, considering the nature and gravity of the offence. It is submitted that the applicant had previously filed an anticipatory bail application being Criminal Misc. Application No. 2623 of 2025, which was not pressed on 05.02.2025. Since then, there has been no change in the circumstances of the case. The learned APP has submitted that 197 bottles of cough syrup, worth Rs. 36,445/-, were recovered from accused No.1 and these contraband substances were sold to accused No. 2, and all the accused are involved in the offence for personal gain. The present applicant is accused of purchasing the contraband without authorization, and in collusion with the co-accused, is engaged in illegal trade. Therefore, it is submitted that the present application may be rejected, especially since the applicant has yet to be arrested and is involved in a serious offence. Hence, as custodial interrogation of the applicant is required, he has requested to dismiss the present application.
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5. This Court has heard learned counsel for both the sides and considered the material placed on record.
6. At the outset, it is apposite to mention that earlier, the present applicant filed Criminal Misc. Application No. 300 of 2025 before the learned City Civil & Sessions Court, Ahmedabad, which was rejected by an order dated 20.01.2025. Being aggrieved by the decision, the applicant approached this Court through Criminal Misc. Application No. 2623 of 2025, which was not pressed as per the order dated 05.02.2025. Thereafter, a pre-arrest bail application was filed on 25.03.2025, which was registered on 29.03.2025.
7. Further, it is needless to say that present application is second bail application without any change in the circumstances after not pressing earlier application on 05.02.2025 after 49 days, the applicant once again filed present application. In view of the above, as there is no change in the circumstance as investigation is in progress and in absence of any change in circumstance, the present application for successive anticipatory bail deserves to be dismissed in light of the law laid down by this Court in the case of State of Gujarat vs Kanaksinh Mohansinh Mangrola reported in 2005 (1) GLH 665, wherein this Court held as under:
Page 4 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025NEUTRAL CITATION R/CR.MA/6629/2025 ORDER DATED: 04/04/2025 undefined "While deciding the second successive anticipatory bail application of the respondent no.1-accused, learned Sessions Judge has not taken into consideration the following aspects. Due to change in circumstance, party can approach the court below or the High Court under Sec.438 of the Code and court can deal with that point of change in circumstance only. However, the court cannot enter into the grounds which were previously contested by the parties and have become final. Here in this case, court below has violated the basic principle of law laid down by the Apex Court on this point by dealing with all points raised by the accused in the first application filed under Sec.438 of the Code and which were already decided by the learned Addl. Sessions Judge, Surat, in detail with prima-facie reasons. Said order was carried further by the accused in the High Court and at the end of arguments, it was withdrawn and hence it has become final between the parties and hence, learned Sessions Judge should not have dealt with the same points again in the successive anticipatory applications."
7.1. Despite the withdrawal of earlier bail application, the applicant has filed this subsequent anticipatory bail application without any change in the circumstance of the case as this Court was not inclined to grant any relief after arguing the same. In this regard also, reference needs to be made to the judgment of the Hon'ble Supreme Court in the case of G.R. Ananda Babu vs The State of Tamil Nadu reported in 2021 SCC Online SC 176 and in the case of Md.
Shamim Khan Vs. The State of Jharkhand (Leave to Appeal (Cri.) No.9449/2021, the Hon'ble Supreme Court deprecated such practice of filing second application under Section 438 of the Code/482 of the BNSS after the first being withdrawn/rejected.
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8. It appears that present applicant has misused the process of law as he is facing the charge under the NDPS Act. Considering the conduct of the applicant though in the NDPS cases, without change in the circumstance, he has filed the present application. Therefore, custodial interrogation is required.
8.1. It would be apposite refer the decision of the Hon'ble Apex Court in case of Anarul SK vs. The State of West Bengal passed in Petition(s) for Special Leave to Appeal (Crl.) No(s). 12621/2024, wherein it is observed that "The Grant of anticipatory bail in cases involving Narcotic Drugs and Psychotropic Substances (NDPS) is a very serious issue. We, therefore, direct the State to consider as to whether it proposes to file an application for the cancellation of bail granted to the other co-accused."
8.2. That 197 bottles of codeine syrup recovered are above the commercial quantity and as such the rigor of Section 37 would be applicable in the instant case. The FIR depicts prima facie involvement of the applicant. The charge-sheet has been filed qua other co-accused and present applicant. Perusal of the FIR and other material placed on record, it reveals that total 197 bottles of syrup was seized, which was to be delivered as per the instructions of the applicant herein. Looking to the investigation papers, prima facie involvement of the applicant is found.
Page 6 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025NEUTRAL CITATION R/CR.MA/6629/2025 ORDER DATED: 04/04/2025 undefined 8.3. Considering the fact that the contraband is of commercial quantity, which came to be seized from the accused No.1 and rigors of Section 37 of the NDPS Act would come into play and sufficient material is collected during the investigation and muddamal, which is recovered from the accused No.1 is supplied by the present applicant. It appears that the present applicant has purchased the said contraband without any authority and in collusion and in connivance with the co-accused, the present applicant is indulged in trading the such illegal activity. The present applicant was in constant touch of the accused Nos.1 and 2, from whose possession, the contraband was found and on the fateful day, thereafter, he was in the constant touch of the co-accused. Hence, merely based on the co-accused's statement the present applicant was not arraigned as an accused. The present applicant and co-accused were found in the constant contact and present applicant has purchased the 3,010 cough syrup in huge quantity without any authority and the licence from whom, he has purchased the said contraband. As per argument of learned advocate for the applicant, applicant is having the licence and he is owner of the SP distributor but the said licence, itself is in a dispute and in the said premises no any business is mentioned in the licence is carried out, there is one scrap shop is situated and where the said contraband being stored is required to be considered and from-where, he has Page 7 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025 NEUTRAL CITATION R/CR.MA/6629/2025 ORDER DATED: 04/04/2025 undefined received and to whom, he was going to supply the said contraband is also required to be considered and this is a serious offence against the State and to unearth racket of such illegal activity, custodial interrogation is required.
8.4. As the offence in question is under the provisions of the NDPS Act, it is required to be mentioned that under the provisions of the NDPS Act as alleged contraband is 197 bottles of cough syrup, FSL report is produced on record. Seized contraband in the said offence is of commercial quantity, hence, it is required to be considered differently and rigorous of Section 37 of the NDPS would clearly attracts. This is not a case where the Court has to consider the case of the applicant only in light of the provisions of Section 438 of the Cr.P.C, however, at the outset, it is worth to mention that under the NDPS Act, the reverse burden is on the part of the accused. In this regard, reference is required to be made upon the judgment of the Apex Court delivered in the case of Dataram Singh Vs. State of Uttar Pradesh, wherein the apex Court has observed thus:-
"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences."Page 8 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025
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9. So far as the argument raised to the effect that the applicant is arraigned as accused on the basis of statement of co-accused, having no substance considering the statement and other material. Further, the applicant having a valid license is not an evidence to show that he has purchased the goods from manufacturer. There is no privy or direct nexus between the applicant and manufacturer and as the present applicant runs his business, on this count also, detail and thorough investigation is required to be conducted in the instant case.
10. Relying upon the judgments of this Court rendered in the case of Mohmed Salim Abdul Rasid Shaikh Vs. State of Gujarat, rendered in 2001 (2) GLR 1580 as well as in the case of Dolatram Tekchand Harjani Vs. State of Gujarat, reported in 2013 (3) GLR 2133, so far investigation is concerned, statement of the co-accused is relevant and it provides the clue and for that purpose, statement of co- accused is relevant and as the serious offence is disclosed, then the Court should not exercise its jurisdiction granting anticipatory bail. In the case of Mohammed Fasrin Vs. State (CR.MA/296/2014), the Apex Court has observed as under:
"...The confessions of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been made by Page 9 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025 NEUTRAL CITATION R/CR.MA/6629/2025 ORDER DATED: 04/04/2025 undefined the co-accused."
11. Herein case on hand, it appears that contraband is in commercial quantity. In State of Kerala Vs. Rajesh, the Apex Court held that in view of the provisions of Section 37 (1)(b)(ii) of the NDPS Act, since the offence involves recovery of the prohibited substance in excess of the commercial quantity, the court is required to record its satisfaction that there are reasonable grounds for believing that the applicant is not guilty of such offence and that the applicant is not likely to commit any offence while on bail.
12. While the expression used in Section 37(1)(b)(ii) is reasonable grounds. The expression means something more than prima facie grounds. It cannot substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.
13. Considering the peculiar facts and circumstances of the case as well as considering the material placed on record, it appears that the seized contrabad was of 197 bottles of syrup were to be supplied to the applicant. Applicant along with co-accused were engaged in such illegal activities. It is also required to be noted that the argument canvassed by Page 10 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025 NEUTRAL CITATION R/CR.MA/6629/2025 ORDER DATED: 04/04/2025 undefined learned counsel for the applicant would not help the case of the applicant as the contraband syrup is of commercial quantity.
14. It is appropriate to refer to the judgment of the Apex Court rendered in case of Pratibha Manchand Vs. State of Haryana, reported in AIR 2023 SC 3307, wherein the Apex Court has observed thus:-
"19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."
In view of the above decision and in view of the facts and circumstances of this case, custodial interrogation of not only the applicant, but all other suspect/s is therefore imperative to unearth the truth. Hence, this is a not a fit case to exercise the jurisdiction in favour of the applicant.
15. In this background facts, this Court prima facie is of considered view that, there is a reasonable ground to Page 11 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025 NEUTRAL CITATION R/CR.MA/6629/2025 ORDER DATED: 04/04/2025 undefined believe that the applicant has committed the alleged offence. Considering the facts of the present case, it cannot be said that the applicant herein has been falsely implicated in the alleged offence. If the anticipatory bail as sought for is granted, then it will affect the investigation of the case. Therefore, custodial interrogation of the applicant is required.
16. For the foregoing reasons as present application being successive bail application, which is filed without any changed in the circumstances, after only 49 days of withdrawal/rejection of the earlier anticipatory bail application and considering the law laid down in the above cited decisions of this Court as well as the Hon'ble Apex Court and considering the conduct of the applicant, this Court is of view that it is not a fit case to exercise the discretion under Section 438 of the Cr.P.C / 482 of the BNSS in favour of the applicant. Accordingly, present application does not deserve any consideration. The provision of anticipatory bail should not be put to abuse at the instance of the unscrupulous applicant. As equating the same with the facts of the case on hand the present applicant and the very conduct and demeanor on the part of the applicant moving the Court with similar successive application, which is nothing but the total abuse of the process of law and such practice time and again has been deprecated by the Court. Hence, the present application deserves to be Page 12 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025 NEUTRAL CITATION R/CR.MA/6629/2025 ORDER DATED: 04/04/2025 undefined dismissed and is hereby dismissed. Rule is discharged.
17. It is made clear that this Court has not delve into the merits of the matter and the views expressed in the order are prima facie only.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 13 of 13 Uploaded by KUMAR ALOK(HC01091) on Mon Apr 07 2025 Downloaded on : Mon Apr 07 22:18:14 IST 2025