Gujarat High Court
Sanjiv R. Bhatt S/O Rajender Bhatt vs State Of Gujarat on 7 March, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/23368/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23368 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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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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SANJIV R. BHATT S/O RAJENDER BHATT
Versus
STATE OF GUJARAT
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Appearance:
Mr. I.H.SYED with MS. KETKI P JHA(9864), ADVOCATES for the
Applicant(s) No. 1
MR JM PANCHAL, SR. ADV. withMR K J PANCHAL(2422) for the
Respondent(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 07/03/2019
CAV JUDGMENT
1 Present application is preferred under section 439 of the Page 1 of 55 R/CR.MA/23368/2018 CAV JUDGMENT Criminal Procedure Code, 1973 for regular bail in connection with the First Information Report (FIR) hereinafter being Prohibition C.R.No-216 of 1996 registered with Palanpur City police station for the offences punishable under sections 17,18,29, and 58(2) and 59(2)of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act" for short) and sections 120B, 116, 119,167,204 and 343 of the Indian Penal Code.
Factual Matrix 2 This case has a chequered history and the facts in a capsulized form deserve to be mentioned at the outset for the purpose of adjudicating the bail plea of the applicant:-
2.1 One Mr.I.B.Vyas, Police Inspector,LCB, Palanpur,District; Banaskantha in his First Information Report has stated that while he was present at police control room anonymous call was received from police control room that one unknown person from Pali, Rajasthan had informed on phone that Shri Sumair Singh Rajpurohit was dealing in opium and was carrying 05 kgs of opium. Sumair Singh Rajpurohit had stayed at hotel Lajvanti and opium was to be delivered at Palanpur.
2.2 The raid was decided to be carried out on 30.04.1996, where all the police personnels named in the FIR were made aware of the telephonic message received from the Page 2 of 55 R/CR.MA/23368/2018 CAV JUDGMENT police control room, Palanpur. They started at 07:10 a.m for Vishramgruh, Palanpur in the police vehicle for carrying out raid at the place shown in the telephonic message. On reaching at the circle where guest house is situated request was made to two persons to remain as panchas, namely, (1) Gulam Reaul Abdul Rahman Pathan and (2) Mohmad Juber Sadulbhai Manknoiya and thereafter, with the panchas the police party reached at Lajvanti guest house.
2.3 On reaching the hotel/guest house, they met Mr.Askhokkumar Shantilal Gupta, who was intimated of the message. He was inquired as to whether any person named Sumair Singh Rajpurohit was staying at the guest house and on verifying the register, he did show the entry of Shri Rajpurohit. They went to the third floor and asked the person concerned to open room No.305. Nobody was found in the room, under the coat, a red coloured cotton bag with blue and yellow design was found with a bundle wrapped in the cotton cloth of cross-design and on opening the same, a black coloured narcotic substance called opium was found and the same weighed 1 kg and 15 grams.
2.4 After completing due procedure of panchnama, attempts were made to locate Sumair Singh Rajpurohit.Page 3 of 55 R/CR.MA/23368/2018 CAV JUDGMENT
What happened thereafter gave birth to the FIR of Rajasthan and its reference would be required at this stage, which is FIR being I-C.R.No.403 of 1996. 3 The I-C.R.No-403 of 1996 was registered with Kotwali police station, Pali, Rajasthan by Advocate Mr. Sumair Singh Rajpurohit, who is arraigned as accused in Prohibition C.R.No.216 of 1996, wherein it has been alleged by him that for a shop situated at Jaipur of paternal uncle of co-accused Shri R.R.Jain , who while acting as an Additional Judge, High Court of Gujarat, while on the constitutional post, hatched a conspiracy with the present applicant to get the shop of his sister vacated, the power of attorney of which was with his paternal uncle Mr. Phutermal Hirachand vacated. 3.1 It appears that shop No.6, which was situated at Vardhman market, Pali was purchased by Amribai alias Amita Jain in the year 1978, which became the harbinger of dispute from the years 1981 till 1991. Shri Ramesh Kumar Jain, tenants of the said shop being partners of the firm and Shri Mohanlal Jain, did not hand over the possession of this shop and Shri Mohanlal Jain started disputing the rent with accused Phutermal Jain and Shri Mohanlal Jain also started discussion of sub-letting the said shop to some third party.
Page 4 of 55 R/CR.MA/23368/2018 CAV JUDGMENT 3.2 After obtaining the power of attorney from Mr. Amribai alias Amita Jain on 01.05.1995, co-accused Mr. Phutarmal Jain moved a Civil Suit for permanent injunction for not to sublet the shop to any one. Shri Ramesh Kumar Jain was impleaded as party in the said suit, as he was the original tenant of the shop. On 29.08.1995, learned Civil Judge has passed an order of not to sub-let the shop. However, no order was passed with regard to eviction. After the said order, Phutermal Jain attempted to the get the shop vacated with the help of caste leaders and through business community and friends, but in vain. 3.3 It appears that brother of Shri Sumair Singh Rajpurohit the complainant, being the original tenant started his business in the name and style of Deepak Textiles. Shri Sumair Singh Rajpurohit also ran his office from this shop. He was disinclined to vacate the office. The Police Station In-charge of Pali also had stated that Puhutarmal Jain on discussion with him of getting the shop vacated further had asked for the police help, however, he was advised to start the proceedings before the Court of law. Under the well planned conspiracy of getting the eviction of the said shop and on Phutarmal Jain not getting the possession of the said vacant shop, despite his best of the efforts, he is alleged to have spoken to other co-conspirator. Mr. Jain, Page 5 of 55 R/CR.MA/23368/2018 CAV JUDGMENT who remained present from 25.04.1996 to 28.04.1996 at in village Bijapur for the marriage ceremony of Sailesh Singh, son of original shop owner Amribai alias Amita Jain, who was treated as his sister for having married his brother-in-law after his real sister died. 3.4 It is the case of prosecution that en route, while returning to Ahmedabad, Mr. Jain had met the present petitioner on 29.04.1996. Mr. Jain conspired with not only Mr. Phutarmal, but also with the present applicant, who was acting as the then Superintendent of Police, Palanpur whose tenure was from October, 1995 to June, 1996. 3.5 It is alleged further that the present applicant had many cases at the relevant time, at the High Court of Gujarat and, therefore, in anticipation of cooperation from the sitting Judge, he decided to not only conspire, but meticulously execute the conspiracy at his instance. 3.6 In this background, Mr. Shantilal Gupta, the owner of the guest house was contacted who entered the name of Shri Sumair Singh Rajpurohit in the occupancy register of the hotel Room No.305 and the same was signed. 3.7 Thereafter, in the morning at 6:00 a.m. on 29.04.1996, a telephonic message purportedly was received and as stated above, the alleged recovery of narcotic substance with panchnama was carried out. The room of guest house Page 6 of 55 R/CR.MA/23368/2018 CAV JUDGMENT was sealed and the provisions of sections 17 and 58 of the NDPS Act were incorporated in the FIR. The offence, since attracted minimum 10 years and maximum 20 years of rigorous imprisonment with fine of Rs. 1 lakh, a design was hatched against Mr.Sumair Singh Rajpurohit who was in possession of the shop at Jaipur and used the same as his office so that he could not even obtain bail. According to prosecution, all attempts to get back the shop had failed and hence, this plantation and recovery. Purporting the documents as genuine, the FIR being Prohibition CR.No.216 of 1996 was registered and the complainant Mr. Sumair Singh Rajpurohit was arrested from Jaipur at wee hours at night.
3.8 A police team sent to arrest Shri Sumair Singh Rajpurphit eventually had taken him at the Palanpur and since he was never at the guest house, nobody from hotel staff could identify him in the test identification parade, but, and after he agreed to hand over the possession of the shop back, he was given discharge under section 169 of the Criminal Procedure Code in FIR being Prohibition C.R.No.-216 of 1996.
3.9 When inquired as to from where narcotic drug opium of 1.15 kg caught from Lagvanti guest house came, it was investigated in Prohibition CR.No.216 of 1996 that through Page 7 of 55 R/CR.MA/23368/2018 CAV JUDGMENT (deceased) Malabhai constable, present applicant procured by giving the sum of Rs.20,000/-(Rupees Twenty Thousand only) with a view to execute criminal conspiracy. 4 On going back to the State of Rajasthan, Sumair Singh Rajpurohit lodged FIR being I-C.R.No.-403 of 1996 at Kotwali police station, Pali on 18.11.1996 for offences punishable under sections 120-B, 195, 196, 342, 347, 357, 368, 458 and 482 of the Indian Penal Code and sections 17, 58(1)(j) and 58(2) of the NDPS Act.
Legal Proceedings:-
5 In view of the backdrop of facts bird's eye view of journey of litigation in this matter would be a must. Two writ petitions were preferred being Criminal Miscellaneous Application No.1302 of 1997 and Criminal Miscellaneous Application No. 1309 of 1997 by the co-accused with the prayers to transfer the case from the Court of Rajasthan to the Court of Gujarat relying on section 186 of the Criminal Procedure Code. The High Court not only dismissed such plea but also went to an extent of saying that the investigation carried out at Gujarat was farce. While rejecting other pleas, the Court directed the Rajasthan Police to complete the investigation.
6 The Rajasthan Police filed the supplementary chargesheet against twenty persons, including the present applicant on 14.01.1998.Page 8 of 55 R/CR.MA/23368/2018 CAV JUDGMENT
7 One Special Criminal Application No. 1079 of 1999 was filed by Shri R.R. Jain praying for transfer of investigation. Later on, Special Criminal Application No. 680 of 1999 was also filed by co-accused Mr.I.B.Vyas, for similar prayer and due to pendency of both these matters, investigation of Prohibition CR.No.216 of 2016 remained stayed for a long time.
8 The applicant and others in the interregnum were granted anticipatory/regular bail by the Court of Jodhpur on 31.03.1999. On 17.04.1999 deposition of Mr.Sumair Singh Rajpurohit was recorded in Special Case No.22 of 1998, however, both the State of Gujarat and co-accused Mr. Jain, in the meantime, preferred Criminal Miscellaneous Application Nos. 164 and 108 of 1999 respectively seeking quashment of I-CR.No.403 of 1996, which came to be rejected by the Rajasthan High Court.
9 Mr. Jain chose to challenge the said order by way of SLP(Criminal) No.13 of 2000 against judgment dated 05.04.2000 of Rajasthan High Court seeking to stay further proceedings of Special NDPS case arising out of C.R.No.I-403 of 1996. The State of Gujarat also filed SLP (Criminal)No.1931 of 2000 challenging the very judgment of Rajasthan High Court. Both SLPs were tagged together. The State Government had taken a stand that police officers were bona Page 9 of 55 R/CR.MA/23368/2018 CAV JUDGMENT fide discharging their duties and case at Rajasthan is unsustainable.
10 On 21.12.2000, this Court in Special Criminal Application No. 1079 of 1998 and Special Criminal Application No. 680 of 1999 deferred the hearing of both these matters till the pending SLPs were finally heard and decided by the Apex Court, although there was no stay to proceed with the pending petition for transfer of investigation to CBI. The self imposed stay continued for a long time till this Court (Coram:
J.B. Pardiwala, J.) on 3.04.2018 directed the State CID(Crime) to investigate the FIR being Prohibition C.R.No.-
216 of 1996 on expeditious basis realizing inordinate delay on the one or the other count.
11 The petitioner was arrested in connection with Prohibition C.R.No.216 of 1996. On 05.09.2018 his application for regular bail came to be rejected by the competent trial Court. In the meantime, the Supreme Court also dismissed the Special Leave Petition preferred by the applicant challenging the order dated 03.04.2018 on 04.10.2018 with a liberty to file a writ petition before the concerned High Court and regular bail application before the appropriate Court. His application for remand to the police custody had been rejected by the learned Magistrate on 06.09.2018. However, on 11.09.2018, this Court allowed the Criminal Revision Page 10 of 55 R/CR.MA/23368/2018 CAV JUDGMENT Application of the State of Gujarat and granted his remand till 21.09.2018. It is pertinent to note that on 05.12.2018 the State of Gujarat withdrew the Special Leave Petition No.1030 and 1031 of 2002 on the ground the investigation carried out in First Information Report being Prohibition C.R.No.-216 of 1996 is part of related transactions.
Oral Submissions 12 In this background, this application for regular bail has been preferred. Learned advocate Mr.I.H.Syed appearing with Ms.Ketki Jha for the applicant had made elaborate submissions with much ferverance orally as well as tendered written arguments advanced before the Court of learned Additional Sessions Judge,Palanpur. Written submissions given to the trial Court are also forming part of the record. His emphasis on amendment in the NDPS Act from 02.10.2001 and non-applicablity of Section 37(b)(1) of NDPS Act would be discussed later.
12.1 Likewise, the State represented by learned Public Prosecutor Mr. Mitesh Amin and Ms. Maithili Mehta argued extensively before this Court resisting this application fervently and written submissions presented before the Court of learned Additional Sessions Judge, District:
Banaskantha at Palanpur also have been pressed into service. His insistence on the law prevalent at the time of Page 11 of 55 R/CR.MA/23368/2018 CAV JUDGMENT occurrence of incident rather on the date of proceeding with the matter will deserve consideration in later paragraphs. A detailed affidavit is filed by SP, CID(Crime & Railways), Gujarat State (Gandhinagar) challenging the request of bail strenuously.
12.2 Apt would it be to refer to the representation of the complainant Mr. Sumair Singh Rajpurohit, advocate of Rajasthan, who filed his affidavit before this Court and was represented by learned Senior Advocate Mr.J.M.Panchal appearing with learned advocate Mr. K.J.Panchal of respondent No.1, who also made his submissions vociferously, urging to reject the request.
Affidavit of Sumair Singh Rajpurohit (victim) 12.3 In his affidavit Mr.Sumair Singh Rajpurohit filed as per the permission granted by this Court on 24.01.2019 for being the original victim of the offence investigated by the agency, he has emphasized that both the offences are different and distinct. So far as investigation of the present case is concerned, he is the victim as defined under section 2(wa) of the Criminal Procedure Code. It is emphasized that the petitioner has a long standing history of not only being involved in serious criminal offences, but of ensuring that no criminal proceedings proceeds against him, much less reaching to the stage of framing of charge by the trial Page 12 of 55 R/CR.MA/23368/2018 CAV JUDGMENT Court. He has grievance that for more than two decades, there had been manifest tendency to file various proceedings either under his name or in the name of the co-accused under his influence and thereby, he has abused the process of law. It is urged that the petitioner is facing several criminal proceedings. He has given a chart to reflect upon the antecedents. He is alleged to be using this political patronage for subversion of the criminal justice system. It is urged that in 22 years, even the charges have not been famed. It is further urged that in 1989, the offence has taken place where three person were killed at District: Jamnagar. However, the trial is not over till date after 23 years. There are couple of antecedents, which have been pointed out to this Court from various documents produced and also from order passed in Criminal Case No.13129 of 1998.
12.4 It is further his say that all possible attempts have been made by the applicant herein seeking patronage through different persons. He also attempts to act in tandem with the co-accused so as to get frivolous proceedings made in their names. It is urged that in the interest of justice, the Court should decline the bail application to the petitioner, Page 13 of 55 R/CR.MA/23368/2018 CAV JUDGMENT directing completion of the trial in the time bound period and directing all concerned including the prosecution, other co-accused and witnesses to cooperate in recording the evidence for an incident which has taken place in the year 1996.
Reasons:
13 Both the sides have argued along the lines of their respective pleadings and hence, they are not required to be reiterated nor reproduced at this stage.
13.1 On thoughtfully considering the submissions of both the sides and on careful examination of material on the record, at the outset, the Court is required to make a mention that in a matter where the case is very old and if the application for regular bail is being considered after nearly 23 years, there may not be ordinarily an occasion for the Court to hesitate in granting the bail once when the applicant accused has enjoyed liberty for a long time, without any murmur from any quarter, especially when the State had a different tune to sing in earlier proceedings before different legal forums.
13.2 However, in the instant case, it would be desirable to make a specific mention that investigation in relation to the First Information Report being Prohibition C.R.No.- 216 of Page 14 of 55 R/CR.MA/23368/2018 CAV JUDGMENT 1996 of the Gujarat, had not been carried out and only after the stay granted in the year 1999 was vacated by a common order dated 03.04.2018 of this Court in Special Criminal Application No. 1079 of 1999, and Special Criminal Application No. 680 of 1999, preferred by co- accused Mr. R.R.Jain and Mr. I.B.Vyas, Police Inspector then, the investigation began, continued and the same had been concluded by filing the final report under section 178(2) of the Criminal Procedure Code.
Points raised for consideration:-
14 In this backdrop of facts from various points raised by both the sides. The following vital issues raised, need reference.
14.1 The incident of Gujarat whether gets covered in First Information Report being C.R.No.I- 403 of 1996. 14.2 Whether there are two separate First Information Reports for the very incident and, therefore, the test laid down by the Apex Court in th case of Amitbhai Anilchandra Shah vs. CBI , reported in (2013) 6 SCC 348 would preclude the second First Information Report to be continued and corollary to the same is that although this Court is not exercising the powers under section 482 Page 15 of 55 R/CR.MA/23368/2018 CAV JUDGMENT of the Criminal Procedure Code, whether this would be a ground for the Court to consider the regular bail of the petitioner.
14.3 With the anticipatory bail having been granted to the petitioner in case pertaining to First Information Report being C.R.No.I- 403 of 1996 should that not weigh with this Court in granting the regular bail.
14.4 Protracted period of litigation whether should not prove to be advantageous to the petitioner.
14.5 The amendment in the provision of NDPS Act, whether can be applied in the case of the present petitioner to his advantage.
Earlier order of bail application at Rajasthan 15 At the outset, this Court notices that the present petitioner had preferred Criminal Miscellaneous Application No. 7 of 1998 in connection with C.R.No.I- 403 of 1996 before the Special Judge, NDPS(Case) at Jodhpur, Rajasthan. After giving the chronological details of what had transpired at various places at Palanpur so also at Rajasthan, the Court concerned had chosen to enlarge the petitioner on anticipatory bail noticing also that he was at the time of the Page 16 of 55 R/CR.MA/23368/2018 CAV JUDGMENT incident Superintendent of Police, Palanpur. On perusal of the case diary, the Court noticed that not only on instructions of the Superintendent of Police in the matter, the case was not registered but it was registered due to telephonic conversation of Mr. Jain. It also recognized the discussion on telephone of Mr. R.R.Jain and the present petitioner and the Court noticed the fact that during the investigation in that regard by appearing before the police, it had been stated that the wife of this applicant also is Jain and Mr. R.R.Jain also belonged to the same community and therefore, discussion might have taken place. Present petitioner since cooperated during the investigation and also appeared before the police, the Court found it justifiable and proper to admit his bail application. Accordingly, anticipatory bail applications of the applicant and some other co-accused were allowed. In the event of their arrest, they were to produce personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each with certain other terms, one of which was not to leave India without the permission of the Court. The State has not challenged this order and the same has attained finality, but, it is a must to mention that there is no whisper of section 37 of the NDPS Act and there is no investigation for procurement of drug as a part of that FIR.
Page 17 of 55 R/CR.MA/23368/2018 CAV JUDGMENT 16 It is submitted before this Court that he was not arrested pursuant to this order by the investigating agency. But eventually at the time of laying the chargesheet, he was shown in column No.2 as not available and non-bailable warrant came to be issued against him.
Second FIR and overlapping investigation:- 17 This would bring this Court to the aspect of overlapping of investigation of First Information Report being C.R.No.I- 403 of 1996 registered with Kotwali police station and the First Information Report being Prohibition C.R.No.-216 of 1996 registered with Palanpur city police station. 18 It is emphasized by the learned advocate appearing for the petitioner that the Gujarat investigation could not have been carried out independently inasmuch as some of the occurrences, which have happened at Gujarat were the part of Rajasthan events and, therefore, even if Rajasthan police has not investigated the aspects of procurement and plantation concerning the provisions of NDPS Act, that per se, may not entitle the Gujarat police to lodge and investigate the second First Information Report for the very incident. 18.1 Reliance is made on the decision of the Apex Court in the case of Amitbhai Anilchandra Shah vs. CBI (supra), Page 18 of 55 R/CR.MA/23368/2018 CAV JUDGMENT which was considering the question of different offences committed in the same transactions for offences arising or as consequence of prior offences. The Court has applied the consequences test laid down in the case of C. Muniappan v. State of T.N. , (2010) 9 SCC 567. The Apex Court has held that if two First Information Reports pertain to two different incidents/crime, the second First Information Report is permissible, however, that was not case before the Apex Court. It was a case where the second FIR was lodged pursuant to the investigation in the FIR. A larger conspiracy was disclosed in the matter before the Apex Court. The second FIR was held as a consequence of the event which had taken place earlier. The day on which the fake encounter killing of Sohrabuddin had happened, initially the CBI took instructions that the third person was accompanying him. In further investigation, it was informed that the third person was Tulsiram. Therefore, according to the Apex Court, as a result of further investigation when CBI had gathered information that the third person was Tulsiram, the Court held that second FIR in the given set of circumstances, was unwarranted and filing of supplementary chargesheet in that regard would suffice. While demanding whether the said offence ought to be treated as a part of the same Page 19 of 55 R/CR.MA/23368/2018 CAV JUDGMENT transaction as in the above, the consequence test has been laid down. The said test prescribes that if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR, then the offences covered by both the FIRs are the same. Accordingly, second First Information Report will be impermissible under the law.
18.2 In other words, the offences covered in both the First Information Reports shall have to be treated as part of the first FIR if one is the consequence of others. The Court also held that merely because two separate complaints had been alleged, would not mean that they could not be clubbed together and one chargesheet could not be filed. It went to an extent of saying that second First Information Report which is not a cross-case in respect of the offence or different offence committed in the course of the same transactions is not only impermissible but it violates Article 21 of the Constitution of India. It further held that principle laid down in the case of T.T.Antony vs. State of Kerala , (2001)6 SCC 181 has never been diluted in any subsequent judicial pronouncements even while carving out exceptions.
18.3 In the case of Nirmal Singh Kahlon vs. State of Page 20 of 55 R/CR.MA/23368/2018 CAV JUDGMENT Punjab and others , (2009) 1 SCC 441, it was a case of second First Information Report in further investigation after the first First Information Report. The CBI had detected larger conspiracy not detected by local police where the Apex Court held that lodging of second First Information Report by CBI would not be a bar. 19 Adverting to the facts and applying "consequence test"
in the instant case, for the purpose of considering bail plea of the petitioners, it can be noticed that Palanpur police raided Lajvanti guest house on the strength of information and had recovered 1.15 kg of opium from the room of the guest house alleged to have been occupied by Mr. Sumair Singh Rajpurohit. As per the details culled out in the hotel register, FIR being Prohibition CR.No.216 of 1996 was registered at Palanpur against Mr.Sumair Singh Rajpurohit. Incident happened on 30.04.1996 and on 02.05.1996 Palanpur Police arrested Mr. Sumair Singh Rajpurohit from Pali. In this very FIR on the intervening night, after he was brought to Palanpur on 06.05.1996 eye-witness of Lajvanti guest house did not identify him in the test identification parade conducted in the presence of Executive Magistrate and, therefore, closure report under section 169 of the Criminal Procedure Code was filed. On 09.05.1996 the Investigating Officer had reported to the concerned Court to add section 58(2) of the Page 21 of 55 R/CR.MA/23368/2018 CAV JUDGMENT NDPS Act. On 14.05.1996 report under section 169 of the Code was accepted and Mr.Sumair Singh Rajpurohit was a free man.
19.1 Mr.Sumair Singh Rajpurohit on 17.10.1996 as mentioned hereinabove, had lodged a private complaint in the Court of learned Judicial Magistrate First Class, Pali and had alleged of the well designed conspiracy to get the shop vacated of sister of Mr. R. R.Jain and lodgment of also malicious FIR being Prohibition C.R.No.216 of 1996. He has also alleged of his abduction by the police and his arrest and putting him in illegal custody till he had agreed to vacate the said shop. The FIR being I-CR.No.403 of 1996 therefore was lodged at Kotwali police station subsequently at Pali under various sections of the Indian Penal Code and NDPS Act. Final report came to be filed after due investigation by the Rajasthan Police on 28.02.1997 against Mr. Phutermal Jain and further investigation continued under section 173(8) of the Criminal Procedure Code against others. It is, therefore, argued before this Court that with investigation of I-C.R.No.403 of 1996 registered at Kotwali police station, Rajasthan having covered the entire incident of Gujarat from lodging of FIR on 30.04.1996 to file a closure report on 14.05.1996 pursuant to the conspiracy hatched on 27.04.1996 for Page 22 of 55 R/CR.MA/23368/2018 CAV JUDGMENT getting the disputed shop vacated being part of the chargesheet of Rajasthan, the separate First Information Report at Gujarat is not sustainable nor the investigation in that regard be also permitted. It is emphatically argued that supplementary chargesheet also had been laid against 20 persons including the present petitioner and I-
CR.No.403 of 1996 on 14.01.1998.
20 It is urged that, therefore, the applicability of the consequence test would have a direct bearing in the instant case where different offence is committed in the same transactions or offences arising as a consequence of the prior offence would not permit FIR registered at Gujarat to be investigated. Before this Court further dilates that aspect, it would be noteworthy to refer here the two writ petitions being Criminal Miscellaneous Application No. 1302 and 1309 of 1997 filed with a prayer of transfer case from the Court of Rajasthan to the Court of Gujarat. Criminal proceedings of I- CR.No.403 of 1996 registered with Kotwali police station for investigation and trail with FIR Prohibition CR.No.216 of 196 registered with Palanpur police station in the interest of justice.
21 While not upholding the say of the petitioner and not finding any merit in both the petitions being Criminal Page 23 of 55 R/CR.MA/23368/2018 CAV JUDGMENT Miscellaneous Application No. 1302 of 1997 to Criminal Miscellaneous Application No. 1309 of 1997 and dismissing the same, this Court directed the investigation of Rajasthan case be completed as expeditiously as possible and further directed the State of Gujarat including the Government, its officers and others to cooperate with the investigation and the High Court, of course. The Court also crystallized that the State of Gujarat and the High Court on its administrative side were positive in not cooperating with the investigation in Prohibition C.R.No.216 of 1996 because highly placed persons were involved and that should not be a reason to extend unwarranted protection. This decision has attained finality. 21.1 It is also necessary to refer to two petitions, which had been filed before the Rajasthan High Court and Criminal Miscellaneous Application No.164 of 1999 and Criminal Miscellaneous Application No. 108 of 1999 for seeking quashment of FIR being I-C.R.No.-403 of 1996. This was done by Mr.R.R.Jain as well as State of Gujarat. These petitions had been dismissed in the year 2000 and on 01.05.2000 SLP (Criminal) No.1327 of 2000 had been filed by Mr.R.R.Jain against the said judgment. The Apex Court stayed further proceedings of the NDPS Court arising from the said FIR. Likewise, State of Gujarat also filed Page 24 of 55 R/CR.MA/23368/2018 CAV JUDGMENT SLP(Criminal) No.1931 of 2000 challenging the very judgment. It was also the stand of the State that the police officers were bona fide discharging their duties and the case of Rajasthan was a false case.
21.2 It is also worthwhile to mention Special Criminal Application No. 1079 of 1998 with Special Criminal Application No. 680 of 1999 which had been preferred before this Court by Mr.R.R.Jain and Mr.I.B. Vyas, Police Inspector and as issues in both writ applications were interrelated, they were both tagged. The prayer sought to transfer the investigation to the CBI of Prohibition CR.No.216 of 1996 with a further direction that the First Information Report registered at Kotwali police station Pali being I-CR.No.403 of 1996 also to be investigated by the police not below the rank of Director General of CBI. In wake of the pendency of SLP(Criminal) NO.1327 of 2000 and SLP(Criminal) NO.1931 of 2000 before the Apex Court, these two writ applications were not proceeded with. 21.3 However, eventually, this Court (Coram:J.B.Pardiwala,J.) on 03.04.2018 by oral judgment disposed of both the writ applications with direction that the investigation of Prohibition C.R.No.216 of 1996 registered with Pali police station to be conducted by Special Investigation Team (SIT) hereinafter constituted Page 25 of 55 R/CR.MA/23368/2018 CAV JUDGMENT out of CID(Crime) State of Gujarat and Central Agency of Crime protection in the State. The SIT was to consist of the officers not below the rank of Deputy Inspector General of Police.
21.4 The Court from the facts which emerges on record held and observed that it is an admitted position that neither any proceedings are pending with regard to Prohibition C.R.No.216 of 1996 registered with Palanpur police station nor the investigation has progressed at all. 21.5 Therefore, it held that it be a travesty of justice if independent, detailed and thorough investigation in the offence registered with Prohibition C.R.No.216 of 1996 registered with Palanpur police station is not conducted. Relevant paragraphs of the said judgment are reproduced hereunder:-
"25. From the shocking facts emerging from the record and the reported judgment placed before this Court in which Shri I.B.Vyas himself was the petitioner and the subject matter being the same, it is clear that it would be a travesty of justice if an independent, detailed and thorough investigation in offence registered being the C.R. No.216/96 at the Palanpur City Police Station is not conducted so as to find out who brought/planted 1½ kg of narcotic drugs based upon which the complainant Advocate Shri Sumer Singh Rajpurohit was allegedly falsely implicated which is apparent from the investigation conducted by the Rajasthan Police referred to above.
26. Both the petitioners are praying for investigation through the CBI of the C.R.No.216/96 pending at the Palanpur District, Banaskantha, which otherwise is also a demand of justice in the shocking facts which has emerged so far. The learned Public Prosecutor does not have, and obviously cannot have, any objection if a direction is issued for an independent, thorough Page 26 of 55 R/CR.MA/23368/2018 CAV JUDGMENT and impartial investigation of the C.R. No.216/96. The learned counsel appearing for the State of Rajasthan has also no objection if the said offence is ordered to be investigated provided it does not dilute the investigation already conducted and charge-sheet filed in C.R. No.403/96 in any manner.
27. In light of the above referred facts, no directions are required to be given with regard to the investigation of the C.R.No.403/96 as the charge-sheet has already filed and the competent Court has already taken cognizance making it clear that there would not be any interference so far as the investigation conducted therein is concerned.
28. So far as the C.R.No.216/96 which has remained univestigated since 1996 is concerned, from the totality of the facts, this Court is of the firm view that the same should not be left to be conducted by the local police, i.e. the police officials of the Banaskantha district, State of Gujarat. At the same time, from the averments made in the petition, no extraordinary or exceptional case is made out as required to be made out, in view of the judgment of the Constitution Bench of the Hon'ble Supreme Court in State of West Bengal & ors. versus The Committee for Protection of Democratic Rights, West Bengal & Ors. [(2010)3 SCC 571] for transfer of investigation to the CBI.
29. It is therefore, absolutely necessary and in the interest of justice that the said investigation of the C.R.No.216/96 be conducted by a special team constituted from out of the CID [Crime], State of Gujarat which is a Central agency of Crime detection in the State of Gujarat which should consist of officers of not below the rank of SP and should have an officer of the level of DIG as its Head.
30.Article 21 of the Constitution of India guarantees fair trial. A fair trial is impossible if there is no fair investigation. In order to be a fair investigation, the investigation must be conducted thoroughly, without bias or prejudice, without any ulterior motive and every fact, surfacing during the course of investigation, which may have a bearing on the outcome of the investigation and, eventually, on the trial, must be recorded contemporaneously by the Investigating Officer at the time of investigation. A manipulated investigation or an investigation, which is motivated, cannot lead to a fair trial. Necessary, therefore, it is that the courts are vigilant, for, it is as much the duty of the court commencing from the level of the Judicial Magistrate to ensure that an investigation conducted is proper and fair as it is the duty of the Investigating Officer to ensure that an investigation conducted is proper and fair. A fair investigation would include a complete investigation. A complete investigation would mean an investigation, which looks into all the aspects of an accusation, be it in favour of the accused or against him."Page 27 of 55 R/CR.MA/23368/2018 CAV JUDGMENT
22 There had been challenge to the judgment dated 03.04.2018 of Special Criminal Application No. 680 of 1999 before the Apex Court being Special Leave Petition Diary No. (S) 35237 of 2018 by the wife of the present applicant under Article 136 of the Constitution of India raising following questions of law before the Apex Court " A to H" as under:-
"A. Whether the impugned judgment/order is sustainable in law considering the fact that material facts have been suppressed before the High Court, more particularly the order of this Hon'ble Court staying the investigation into the same incident/occurrence.
B. Whether the High Court has erred by not observing that the effect of the impugned order/judgment shall be that the accused will be subjected to second investigation of the same incident giving rise to same offences that has already been investigated, charge-sheeted and further proceedings are stayed by this Hon'ble Court.
C. Whether the High Court has erred in not appreciating that it is the same incident/occurrence which is the subject matter of the investigation carried out in Rajasthan and the investigation that is to be carried out vis-a-vis the impugned judgment/order.
D. Whether the High Court has erred in not appreciating that all evidence, purportedly to be considered as part of the investigation initiated pursuant to the impugned order has already been considered and taken into account by the investigation carried out in Rajasthan and on the same set of evidence. E. Whether the High Court has erred in not appreciating the law laid down by this Hon'ble Court with respect to multiple investigations and the effect thereof on the fundamental rights of accused persons, more particularly in the case of Amit Anilchandra Shah v. Central Bureau of Investigation and Anr. (2013) 6 SCC 348.
F. Whether the High Court has erred in not appreciating that the impugned judgment/order gravely prejudices the fundamental rights of the Petitioner enshrined under Articles 14 20 and 21 of the Constitution of India by exposing the Petitioner to multiple investigations into the same incident/occurrence.
G. Whether the High Court has erred by passing the impugned judgment/order without hearing the Petitioner herein even though the impugned judgment/order gravely affects the fundamental rights of the Petitioner herein. H. Whether the High Court ought to have directed an investigation which takes a case from a post-cognizance stage to a pre-cognizance stage." 22.1 The Apex Court was not inclined to interfere and has chosen not to go into the question of law at that stage in view of the highly contentious stands taken by respective parties. It dismissed the Special Leave Petition and all pending application with clarification that the same would Page 28 of 55 R/CR.MA/23368/2018 CAV JUDGMENT not come in the way of the petitioner in moving the appropriate Court for grant of bail in accordance with law. The Court also chose not to interfere with the order of 03.04.2018 passed by this Court to interfere with on going investigation in connection with Prohibition CR.No.216 of 1996 registered with Palanpur police station. Criminal Miscellaneous Application No. 17160 of 2018 was preferred before this Court and the same was withdrawn on 12.09.2018 with a liberty to file appropriate proceedings before appropriate forum including before the High Court. Applicant also filed simultaneously a writ petition under Article 32 of the Constitution of India being Writ Petition (Criminal) No.265 of 2018 for quashing Prohibition C.R.No.216 of 1996 which was disposed of by the Court on 04.10.2018. This Challenge according to the learned advocate had been then taken to the Apex Court directly which had chosen not to entertain the same as referred to hereinabove.
23 Reference also is necessary to Criminal Revision Application No.1088 of 1998 preferred under section 397 with section 401 of the Criminal Procedure Code challenging he order passed by learned Judicial Magistrate First Class, Palanpur on 06.09.2018 wherein the remand application was preferred for taking present petitioner and Mr. I.B.Vyas in Page 29 of 55 R/CR.MA/23368/2018 CAV JUDGMENT police remand in connection with the very FIR. The Court held that the FIR had remained uninvestigated all through out. From the overall consideration of the matter the Court subjectively satisfied itself and held thus:-
"15. On overall consideration of the matter, this Court is subjectively satisfied that the incident of planting opium at Lajvant Hotel at Palanpur is deep rooted conspiracy wherein clear involvement of the respondents and others is clearly emerging out and therefore for unearthing deep rooted conspiracy, special team came to be constituted by the order of this Court at the behest of the respondents themselves. In that view of the matter, custodial interrogation is required to be carried out by handing over police custody during the course of investigation. Though, learned Magistrate while considering the application for remand adopted very casual and formal approach and not recorded any reasons. Even the impugned order suffers from nonapplication of mind totally. The impugned order runs into one line as in view of the ratio laid down in Jayarajsinh Temubha Jadeja (supra) case and for the same reason, as recorded in the said order, police custody cannot be handed over and in the present case, since the case was registered before 22 years, for that simple reason, the application for remand came to be rejected.
16. This Court is subjectively satisfied that for unearthing deep rooted conspiracy which has been alleged to have been hatched by high profile persons is required to be investigated thoroughly giving full free hand to the Special Investigating Team and for which custodial interrogation for longer period is needed and this Court is satisfied to hand over the police custody for a period of 10 days commencing from tomorrow morning at 10.00 a.m.
17.It is required to be noted that Mr.Syed repeatedly drawn the attention of this Court as regards the proceedings of the crime registered at Rajasthan which has been carried upto the Apex Court wherein the proceedings are stayed and leave is granted and the same is pending till now. As noted above, this Court is subjectively satisfied that this case is totally distinct and separate and separate crime has been registered and the complainant himself has been turned out to be the accused in the present case registered at Palanpur Police Station."
24 This when got challenged before the Apex Court the Court had chosen not to entertain Special Leave Petition (Criminal Diary)No.35136 of 2018.
Page 30 of 55 R/CR.MA/23368/2018 CAV JUDGMENT 25 Without any need of concluding the said issue since this Court is not dealing with either writ petition or exercising the powers under Section 482 of the Code of Criminal Procedure , but deciding the application for regular bail, it can be surely noticed that the very issue has been time and again raised before various courts by the co-accused and the petitioner himself attempted to challenge it after the last order of directing the investigation, which was put to hold, due to the petitions of co-accused. Therefore, at this stage, only on that ground, the petitioner cannot be permitted to be given an advantage of regular bail.
26 It is a matter of record that the petitioner was enlarged on anticipatory bail by the Rajasthan High Court. However, the Investigating Officer after completing the investigation also had chosen not to arrest the applicant till the filing of final report under section 173(2) of the Code. The alleged role attributed to him does not concern procurement of narcotic substance. The narcotic substance found at Lajvanti guest house, Palanpur was surely not brought by Sumair Singh Rajpurohit, who was the victim of conspiracy. The issue remained uninvestigated as to from where this narcotic substance came and in what manner procurement was made and by whom. This aspect of procurement is investigated only in the present case Prohibition Case No.216 of 1996, which is Page 31 of 55 R/CR.MA/23368/2018 CAV JUDGMENT the FIR, firstly, lodged against victim Sumair Singh Rajpurohit. A close perusal of I-C.R.No.403 of 1996, prima facie, reveals that aggrieved Sumair Singh had complained of his abduction and illegal custody for executing conspiracy of vacating shop in his possession at Rajasthan by circumventing and misusing law and abusing legal process and thus, ambit of investigation of that FIR of I-Cr.No.403 of 1996 started after the initial drama of procurement and plantation was over.
26.1 It would not be out of place to mention that in Criminal Appeal No.1030 of 2002, the applicant contended that the only Court competent to deal with complaint was the Special Court, NDPS offences, Palanpur, Gujarat, of course, in reference to the CJM, Pali that it was not competent to take cognizance of offences. However, the petitioner now ha taken a volte face.
27 Keeping the issue open whether this procurement being the part of the investigation of I-CR.No.403 of 1996 or the said FIR being the consequence of conspiracy alleged in Prohibition CR.No.216 of 1996 for the petitioner to agitate at an appropriate forum, it can be noticed clearly that nothing emerges on the record to indicate that this aspect of procurement and plantation had been investigated and concluded by the Rajasthan Police. And, therefore, even if Page 32 of 55 R/CR.MA/23368/2018 CAV JUDGMENT some aspects seem overlapping during the investigation in both the FIRs, FIR lodged at Gujarat having been concluded and culminated into the final report under section 172(2) of the Code, this Court is the opinion that this aspect will not benefit the applicant at this stage of regular bail. Bail provision and NDPS Act 28 This brings this Court to the vital issue of grant of bail under the NDPS Act.
29 Section 37 of the NDPS Act in present form provides that notwithstanding anything contained in the Criminal Procedure Code every offence punishable under this Act shall be cognizable and no person accused of offence punishable for the offence under section 19 or section 24 or section 27A and also for offence involving commercial quantity shall be released on bail or on his own bond unless the public Prosecutor has been given an opportunity to oppose the application for such release and that too shall happen where the Court is satisfied that there are reasonable ground for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. 29.1 Section 37 of the NDPS Act as existed before the amendment in the year 2001 did not contemplate grant of bail for a person allegedly involved for offences under sections 19, 24 or 27A and also for any other offences Page 33 of 55 R/CR.MA/23368/2018 CAV JUDGMENT under this Statute involving commercial quantity unless the Public Prosecutor is given an opportunity of hearing and if he opposes, unless the Court is satisfied that there are reasonable ground existing to believe that the person concerned is not guilty and that he is not likely to indulge into commission of any offence while on bail. In this backdrop, insistence on the part of the applicant is to apply liberalised version of bail provisions in post 2001 period where small quantity, intermediary and commercial quantity can be distinguished and by notification also, quantities have been quantified.
29.2 It is thus quite clear from the language of section 37(1)
(b) that only if the Court is satisfied that there are reasonable ground for believing that the accused is not guilty of offence under the Act and that he is not likely to commit any offence while on bail, on clearing of these two tests, the Court should grant bail to the person accused of cognizable offence.
29.3 It is the say of the accused that as per the provision of section 37 of the Act, as it stood before the amendment, no bail could be granted if the person is involved in the commission of offence under the Act, which was punishable with rigorous imprisonment for 5 years or more, which would mean that restriction on granting bail was Page 34 of 55 R/CR.MA/23368/2018 CAV JUDGMENT dependent on the quantum of sentence prescribed for the offence. However, under the amended provision of section 37 only a person accused of offence punishable under section 19 or section 24 or section 27A or offence involving commercial quantity or more under this Act has been made liable not to be released on bail without any reference to quantum of punishment. It is therefore the say of the petitioner that material change has been brought in the law with a view to liberalize bail provisions. It is also urged that this provision does not expressly or impliedly provide that they shall not be applicable for the cases prior to the amendment and will apply only prospectively. Therefore, it is urged that provision of clause b(i)(ii) of sub-section (1) of section 37 are either attracted or applicable. It is further the say that when two interpretations are possible against the accused and one in his favour, the one favouring the accused will prevail. Therefore, application for bail prevailing on the date of arrest shall apply as held in the case of Sami Ullaha vs. Superintendent, Narcotics Central Bureau , 2009 Cri.L.J, 1306. It is further urged that the provision of section 37 as amended will be applicable even in cases arising before section 37(1) was amended.
29.4 Similar issue has been raised, according to the Page 35 of 55 R/CR.MA/23368/2018 CAV JUDGMENT petitioner, in the case of Manoj Kumar and etc. vs. State of H.P. , 2003 Cri.L.J. 1644 and Shaffi Mohammed and etc. vs. State of Rajasthan , 2005 Cri.L.J. 2112, which provides that law prevailing when the application for bail shall be considered and not restriction of unamended provision.
29.5 Much reliance is placed on the decision of the Apex Court in the case of State through CBI vs. Gian Singh , AIR 1999 SC 3450 to urge that no ex post facto legislation can be permitted for escalating severity of punishment when the subsequent legislation if down- grades harshness of sentence, the administration of criminal justice principal would necessitate extension of such legislative benevolence in favour of the accused. It is his say that the material procured and planted in the instant case is opium derivative. It has heavily relied on the decision of the Apex Court in the case of Amarsingh Ramjibhai Barot vs. State of Gujarat , 2005 (7) SCC 550 and in the case of Jahawar Singh Bhagatji vs State of GNCT of Delhi , (2009) 6 SCC 490. It is emphasized that in the case of Jawahar Singh (supra) the Apex Court has clearly held that the amended Act cannot be said to have any retrospective effect and while dealing with the said decisions of Ratan Lal vs. State of Punjab , Page 36 of 55 R/CR.MA/23368/2018 CAV JUDGMENT AIR 1965 SC 444 and the case of State through CBI vs. Gian Singh (supra) have been taken into consideration.
29.6 In the case of Amarsingh Ramjibhai Barot (supra), the question was whether the substance recovered of 920 grams of opium derivative was of small quantity or commercial quantity and whether the Amendment Act of 2001 would come to rescue of the accused. The High Court according to the Apex Court, had rightly held that the appellant was guilty of unlawful possession of the commercial quantity of manufactured drugs and subsequently, his case would be covered by clause (c) and not by clause (a) and (b) of section 21 of the NDPS Act. 30 Relevant paragraphs of the said judgment are Reproduced hereunder:-
"11.The appellant was found in possession of 920 grams of black liquid which prima facie smelt of opium. The FSL report indicates that the substance recovered from the appellant was `opium as described in the NDPS Act' containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda) flower found in the sample.
12.Sections 17, 18 and 21 of the NDPS Act are intended to operate in different circumstances. Section 17 prescribes the punishment inter alia for possession of ``prepared opium'', Section 18 prescribes the punishment inter alia for possession of ``opium'' and Section 21 deals with the punishment inter alia for possession of ``manufactured drugs''. Each one of these terms has been defined in the NDPS Act. ``Opium'' is defined in Section 2(xv) as:
``2(xv) ``opium'' means -
(a) the coagulated juice of the opium poppy; and
(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any Page 37 of 55 R/CR.MA/23368/2018 CAV JUDGMENT preparation containing not more than 0.2 per cent of morphine'' The term ``opium derivative'' is defined in Section 2(xvi) as follows:
13.The term Oopium derivative" is defind in Section 2(xvi) as follows ``2(xvi) ``opium derivative'' means -
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder from or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) phenanthrene alkaloids, namely, morphine, codeine thebaine and their salts;
(d) diacetylmorphine, that is, the alkaloid also known as dia- morphine or heroin and its salts; and
(e) all preparations containing more than 0.2 per cent, of morphine or containing any diacetylmorphine''
14. There does not appear to be any acceptable evidence that the black substance found with the appellant was ``coagulated juice of the opium poppy'' and ``any mixture, with or without any neutral material, of the coagulated juice of the opium poppy''. The FSL has given its opinion that it is `opium as described in the NDPS Act'. That is not binding on the court.
15. The evidence also does not indicate that the substance recovered form the appellant would fall within the meaning of sub-clauses (a), (b), (c) or (d) of Section 2(xvi). The residuary clause (e) would take into its sweep all preparations containing more than 0.2 per cent of morphine. The FSL report proves that the substance recovered from the appellant had 2.8 per cent anhydride morphine. Consequently, it would amount to ``opium derivative'' within the meaning of Section 2(xvi)(e).
Clause (a) of Section 2(xi) defines the expression ``manufactured drug'' as:
``2(xi) ``manufactured drug'' means -
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) ...'' All "opium derivatives'' fall within the expression ``manufactured drug'' as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was ``manufactured drug'' within the Page 38 of 55 R/CR.MA/23368/2018 CAV JUDGMENT meaning of Section 2(xi) of the NDPS Act. The material on record, therefore, indicates that the offence proved against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of ``manufactured drug''.
16. The learned counsel for the appellant raised a further contention that even if the appellant is guilty of an offence under Section 21 of the NDPS Act, the punishment could only fall within clause (a) of Section 21 as the ``manufactured drug'' involved was of ``small quantity''. In our view, this contention is untenable. The Amending Act of 2001' introduced the concept of ``small quantity'' and ``commercial quantity'' for the purpose of imposing punishment. The punishment thereunder is graded according to whether the contravention involved ``small quantity'', ``commercial quantity'' or a quantity in between the two. By reason of Section 41(1) of the Amending Act of 2001, the amended provisions apply to pending cases. Simultaneously, with the Act of 2001 coming into force, by a notification S.O. 1055 (E) dated 19.10.2001 issued in exercise of the powers conferred by clauses (viia) and (xxiiia) of Section 2 of the NDPS Act, the Central Government specified what would amount to ``small quantity'' and ``commercial quantity'' respectively, of different substances.
17. In respect of opium derivatives (at sr. no. 93) in the said notification, 5 grams is specified as ``small quantity'' and 250 grams as ``commercial quantity''. The High Court was, therefore, right in finding that the appellant was guilty of unlawful possession of ``commercial quantity'' of a manufactured drug. Consequently, his case would be covered by clause (c) and not clause (a) or (b) of Section 21 of the NDPS Act."
31 In the case of Jahawar Singh (supra) the Court was considering the retrospective and prospective aspect of section 21 of the NDPS Act. The Court clarified by distinguishing pending appeals from pending trials to hold that section 41(1) proviso of the amended Act categorically provides that the said amendment shall not have any effect to pending appeals. The Apex Court held that the amendment in the NDPS Act came by Act 9 of the 2001 with effect from 2.10.2001. Before, which there was no distinction between commercial and small quantity. The court held that a Page 39 of 55 R/CR.MA/23368/2018 CAV JUDGMENT substantive provision of the Amendment Act unless specifically provides for or otherwise intended by the Parliament should be held to have a prospective operation. While dismissing the appeal of the accused the Supreme Court held that if the minimum punishment under section 21 of the Act was 10 years, there was no reason as to why minimum sentence prescribed cannot be held to be applicable. It is beyond any doubt or dispute that quantum of punishment to be inflicted on an accused person, according to the judgment of conviction would be as per the law, which was prevailing at the relevant time. On the date of conviction there was no distinction between small quantity or commercial quantity. Hence, the question of inflicting of a lesser sentence by reason of the provision of Amendment Act would not arise.
32 Relevant paragraphs of the said judgment are reproduced hereunder:-
"6. The offence indisputably took place on 26.09.1999. Appellant was convicted by a judgment dated 5.11.2000. As indicated hereinbefore, the Amending Act came into force on 2.10.2001.
7. By reason of the said amendment, "commercial quantity" and "small quantity" were defined as under:
"2(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;"
2(xxiiia) "small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette."
Page 40 of 55 R/CR.MA/23368/2018 CAV JUDGMENT
8. Section 21 of the Act, which was also amended by Section 8 of the said Amending Act, reads as under:
"21. Punishment for contravention in relation to manufactured drugs and preparations Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."
9. It is now beyond any doubt or dispute that the quantum of punishment to be inflicted on an accused upon recording a judgment of conviction would be as per the law, which was prevailing at the relevant time. As on the date of commission of the offence and/ or the date of conviction, there was no distinction between a small quantity and a commercial quantity, question of infliction of a lesser sentence by reason of the provisions of the Amending Act, in our considered opinion, would not arise.
10. It is also a well-settled principle of law that a substantive provision unless specifically provided for or otherwise intended by the Parliament should be held to have a prospective operation. One of the facets of Rule of Law is also that all statutes should be presumed to have a prospective operation only.
xxx xxx xxx xxx xxx xxx
14. Act 9 of 2001 did not bring about any significant or material changes in the parent Act. The Parliament had given effect thereto with effect from a particular date, viz., 2.10.2001. If the Amending Act was to be given a retrospective effect, the amendments carried out in regard to the provisions for holding of trial would have been required to be complied with warranting a Page 41 of 55 R/CR.MA/23368/2018 CAV JUDGMENT retrial in terms thereof.
15 One of the objectives of a criminal trial is that delay should be avoided.
The proviso appended to Section 41(1) of the Amending Act categorically provides that the said amendment shall not have any effect to the pending appeals. It is, therefore, an indicator to show that the concluded trials should not be reopened. In Basheer alias N.P. Basheer v. State of Kerala [(2004) 3 SCC 609], this Court took notice of the decision of this Court in Gian Singh (supra) stating:
"22. Inasmuch as Act 9 of 2001 introduced significant and material changes in the parent Act, which would affect the trial itself, application of the amended Act to cases where the trials had concluded and appeals were pending on the date of its commencement could possibly result in the trials being vitiated, leading to retrials, thereby defeating at least the first objective of avoiding delay in trials. The accused, who had been tried and convicted before 2-10-2001 (i.e. as per the unamended 1985 Act) could possibly urge in the pending appeals, that as their trials were not held in accordance with the amended provisions of the Act, their trials must be held to be vitiated and that they should be retried in accordance with the amended provisions of the Act. This could be a direct and deleterious consequence of applying the amended provisions of the Act to trials which had concluded and in which appeals were filed prior to the date of the amending Act coming into force. This would certainly defeat the first objective of avoiding delay in such trials. Hence, Parliament appears to have removed this class of cases from the ambit of the amendments and excluded them from the scope of the amending Act so that the pending appeals could be disposed of expeditiously by applying the unamended Act without the possibility of reopening the concluded trials.
23. Thus, in our view, the Rubicon indicated by Parliament is the conclusion of the trial and pendency of appeal. In the cases of pending trials, and cases pending investigation, the trial is yet to conclude; hence, the retrospective mollification of the rigour of punishment has been made applicable. In the cases where the trials are concluded and appeals are pending, the application of the amended Act appears to have been excluded so as to preclude the possible contingency of reopening concluded trials. In our judgment, the classification is very much rational and based on clearly intelligible differentia, which has rational nexus with one of the objectives to be achieved by the classification. There is one exceptional situation, however, which may produce an anomalous result. If the trial had just concluded before 2-10- 2001, but the appeal is filed after 2- 10-2001, it cannot be said that the appeal was pending as on the date of the coming into force of the amending Act, and the amendment would be applicable even in such cases. The observations of this Court in Page 42 of 55 R/CR.MA/23368/2018 CAV JUDGMENT Nallamilli case would apply to such a case. The possibility of such a fortuitous case would not be a strong enough reason to attract the wrath of Article 14 and its constitutional consequences. Hence, we are unable to accept the contention that the proviso to Section 41 of the amending Act is hit by Article 14."
On the aforementioned finding, the decisions of the Division Benches of the Punjab and Haryana High Court and the Madhya Pradesh High Court, which had applied the said Amending Act with retrospective effect, were overruled.
16. In Amarsingh Ramjibhai Barot v. State of Gujarat [(2005) 7 SCC 550], this Court noticed that the minimum punishment under Section 21(c) of the Act is of ten years with a fine of Rs. 1,00,000/-. If the said provision is applicable, we do not see as to why the minimum sentence prescribed therein can be held to be not applicable."
33 The Apex Court in the case of Satpal Singh vs. State of Punjab, (2018) 13 SCC 813 was considering the litigation of granting anticipatory bail under the NDPS Act. The Apex Court noticed that the High Court was right in declining protection under section 438 of the Code of Criminal Procedure having noticed that the Coordinate Bench of the High Court had passed a wrong order since the Supreme Court had directed the State to verify whether any steps had been taken to granting the anticipatory bail to the co-accused. Pursuant to the order passed by the Coordinate Bench of the High Court, the co-accused had surrendered before the Sessions Court. They were released on regular bail. The Sessions Court did not take notice of the final order passed by the Coordinate Bench of the High Court, this casual approach adopted by the Sessions Judge had led to the co-accused being released on Page 43 of 55 R/CR.MA/23368/2018 CAV JUDGMENT regular bail on the basis of interim order passed by the High Court. There was no reference of section 37 of the NPDS Act in the order passed by the Coordinate Bench of the High Court where the quantity was reportedly commercial. The Apex Court held that without entering into the findings on required level of satisfaction in case the Court was otherwise inclined to grant bail, no order under section 438 or section 439 of the Code of Criminal Procedure could have been made. The Apex Court directed all the accused to surrender before the trial Court with a liberty to apply for regular bail where the Sessions Court was directed to consider the matter on merits of the application. While so doing the Apex Court held thus:-
"2. Section 37 of the NDPS Act reads as follows :-
"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 [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. 3 (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.]" (Emphasis supplied)
3. Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in Page 44 of 55 R/CR.MA/23368/2018 CAV JUDGMENT case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail.
Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail. It is unfortunate that the provision has not been noticed by the High Court. And it is more unfortunate that the same has not been brought to the notice of the Court." 34 As is apparent from the material on record that in the instant case, the quantity of opium seized by the investigating agency as per the papers of chargesheet is 1 kg and 15 grams. This quantity when examined by the FSL is the same quantity which had been also procured from Sherpura, Dhani. It was the present petitioner, who is alleged to have given Rs.20,000/- to one Mr. Malabhai, who is presently not alive, which was a commercial quantity by all means. It was procured on 29.04.1996 and planted at Lagjwanti guest house on 30.04.1996 and this direction of procurement, parting with money, procurement and retaining of this for a day, all have witnesses. FSL also confirms this to be opium and, therefore, rigors of punishment under the various offences of NDPS Act would not permit grant of bail. The offence undisputedly took place in the year 1996. The amending Act came into force on 02.10.2001. By reason of this amendment, "small quantity"
and "commercial quantity" are defined with Act of 2001 Page 45 of 55 R/CR.MA/23368/2018 CAV JUDGMENT coming into force, Notification S.O.1055 (E) dated 19.10.2001 came to be issued in exercise of powers conferred by Clauses (viia) & (xxiiia) of Section 2 of NDPS Act and the Central Government specified as to what would be small quantity and commercial quantity being 5 grams and 250 grams for opium derivatives.
34.1 Judgment in Jahawar Singh (supra) has held that Act 9 of 2001 has not brought about any significant changes in the parent Act and the Parliament has given effect thereto from 02.10.2001 and and the Amending Act cannot said to be given a retrospective effect. The proviso of Section 41(1) of the Amending Act provided that the said amendment shall have no effect to the pending matters. Unless substantive provision specifically provided, all statutes to have a prospective operation only. 34.2 Here, in the instant case, when considered from the quantity involved and the rigor of unamended Act, request of bail need not be considered, even, when it is understood that the Court at present is not dealing with the appeal. 35 Assuming that rest of the aspects have been investigated by Rajasthan Police, since commercial quantity of narcotic drugs is allegedly found at the time of the incident in the year 1996, as per the decision of Jahawar Singh (supra) what would be vital to be considered is the commercial quantity.
35.1 Assuming that even the subsequent notification would Page 46 of 55 R/CR.MA/23368/2018 CAV JUDGMENT have an applicability, in case of the petitioner, then also considering the provisions of section 37 of the NDPS Act, this Court is of the opinion that on applying the two tests, which are vital for grant of regular bail, it will not be possible for the Court to hold that the accused is not guilty of offence under the Act. Considering the material on record there exist a reasonable ground of believing prima facie that he is involved in procuring the opium for the purpose of executing the criminal conspiracy. Mr. I.B.Vyas, who is one of the accused in I-C.R.No.403 of 1996 registered at Kotwali police station, Pali, Rajasthan is the first informant because this FIR was meant to be a malicious prosecution for advocate Mr. Sumair Singh Rajpurohit. Again, procurement was through one Mr. Malabhai (since deceased) and this has been thoroughly criticized and seriously questioned, pointing accusing fingers at the very investigation.
35.2 Unless quashed or tried in the full-fledged trial before the competent Court, to disbelieve the material of chargesheet or reject the same outrightly will not be feasible, considering prima facie voluminous evidence in this regard. There are witnesses, who have in no uncertain terms spoken of his role in procurement and also of its use Page 47 of 55 R/CR.MA/23368/2018 CAV JUDGMENT for planting the same at the guest house and of destroying case diary of this case because of certain unwarranted references of his directions in monitoring/ executing entire conspiracy.
Other parameters for grant of bail:
35.3 If one looks at the parameters for grant of regular bail, even in ordinary case under the law without specific fetters of section 37 of NDPS Act, as set out in the case of State of U.P through CBI vs. Amarmani Tripathi , (2005) 8 SCC 21, the following are the criteria laid down:-
"18.It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with;
and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar vs. Rajesh Ranjan, 2004 (7) SCC 528:
"The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a Page 48 of 55 R/CR.MA/23368/2018 CAV JUDGMENT serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
a. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. b. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
c. Prima facie satisfaction of the court in support of the charge. (see Ram Govind Upadhyay vs. Sudarshan Singh, 2002 (3) SCC 598 and Puran vs. Ram Bilas 2001 (6) SCC 338."
19. This Court also in specific terms held that:
"the condition laid down under section 437(1)(i) is sine qua non for granting bail even under section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."
xxx xxx xxx xxx xxx xxx
22.While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no pre-judging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary. An examination of the material in this case, set out above, keeping in view the aforesaid principles, disclose prima facie, the existence of a conspiracy to which Amarmani and Madhumani were parties. The contentions of Respondents that the confessional statement of Rohit Chaturvedi is inadmissible in evidence and that should be excluded from consideration, for purpose of bail is untenable. This Court had negatived a somewhat similar contention, in Kalyan Chandra Sarkar (supra) thus :
"The next argument of learned counsel for the respondent is that prima facie the prosecution has failed to produce any material to implicate the respondent in the crime of conspiracy. In this regard he submitted that most of the witnesses have already turned hostile. The only other evidence available to the Page 49 of 55 R/CR.MA/23368/2018 CAV JUDGMENT prosecution to connect the respondent with the crime is an alleged confession of the co-accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept. The admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial."
xxx xxx xxx xxx xxx xxx
29. In Prahlad Singh Bhati Vs. NCT, Delhi, 2001 (4) SCC 280, this Court reiterated that if a person was suspected of the crime of an offence punishable with death or imprisonment for life then there must exist grounds which specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. The jurisdiction to grant bail must be exercised on the basis of well settled principles having regard to the circumstances of each case. While granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused and reasonable apprehension of witnesses being tempered with."
36 In the case of Satish Jaggi vs. State of Chhattisgarh and others , (2007) 11 SCC 195, relevant criteria, according to the Apex Court to be considered for grant of non-bailable offence are as follows:-
"12. Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice Page 50 of 55 R/CR.MA/23368/2018 CAV JUDGMENT shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the Court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial."
37 So far as the antecedents of the applicant are concerned in the affidavit of the complainant Sumair Singh Rajpurohit and in the affidavit for and on behalf of the State, number of cases have been listed to point out the antecedents against the present petitioner, which are as under:- Page 51 of 55 R/CR.MA/23368/2018 CAV JUDGMENT
Sr.No. Particulars of First Information Report 1 FIR registered vide I-C.R.No.102/1990 at Jamjodhpur police station for the offence punishable under sections 302, 323, 506(2), 114 of the Indian Penal Code. Pursuant to the said FIR and on conclusion of investigation, on 08.11.2012, the Court of Sessions District: Jamnagar had framed charge against petitioner and 6 others in Sessions Case No.35 of 2001.
2 Private complaint filed by one Shri Mahesh Damji Chitroda in the Court of Learned Judicial Magistrate First Class, Jamjodhpur bearing Inquiry Case No.22 of 1990 for the offence punishable under sections 325, 323, 114 and 34 of the IPC. The Court of learned Judicial Magistrate First Class, Jamjodhpur has issues process against petitioner and others for the said offences on 24.04.1992. 3 FIR registered vide I-C.R.No.149/2011 at Ghatlodiya police station by Karnsinh Dhanbahadursinh Pant for the offences punishable under sections 189, 193, 195, 341, 342 of the Indian Penal Code 4 FIR registered vide II-C.R.No.3148 of 2011 at Vastrapur police station for the offence punishable under section 66 of the Information Technology Act 5 FIR registered at City "A" Division police station, Jamnagar vide M. Case No.2 of 2012 by Vijaysinhji Bhavansinhji Bhatti for the offence punishable under sections 341, 323, 326 and 504 of the Indian Penal Code.
6 FIR registered at Kotwali police station, Pali, State of Rajasthan vide I-C.R.No.403 of 1996 dated 18.11.1996 by Sumairsinh Rajpurohit which is at page 18 Annexure-B. 7 Proceedings of Criminal Miscellaneous Application No. 13128 of 1998 pending before the Court of learned 4th Additional Chief Judicial Magistrate, Porbandar.
37.1 In the reported decision of the Apex Court in the case of Sanjiv Rajendra Bhatt vs. Union of Indian and others, (2016)1 SCC 1 some of the findings and observations of the Apex Court also had been drawn attention of this Court, which may not warrant further dilation. His conduct while getting passport renewed in the year 2007 and 2017 and false statement/disclosure before the passport authority of there being no prosecution pending against him, prima facie, reveal that the applicant has scant regards for truth and he would not Page 52 of 55 R/CR.MA/23368/2018 CAV JUDGMENT hesitate to manipulate the process to suit his need. He has for five times travelled abroad without prior permission of Court despite the condition of anticipatory bail, which is not being amplified in absence of any material and his non-arrest by Rajasthan Police for a protracted period after such order of anticipatory bail.
38 All the aspects discussed above when carefully examined cumulatively, this Court is of the opinion that it would not be neither in the interest of justice nor would the criteria laid down legally under the provisions of NDPS Act, permit grant of regular bail to the petitioner and hence, the request of grant of regular bail deserves no consideration.
38.1 Mere emphasis on the part of the petitioner of delay of 21 years in the proceedings with the matter cannot be the sole guiding factor, more particularly when it was the stay obtained by the co-accused before the specific directions were issued by the Coordinate Bench of this Court (Coram:
Justice J.B.Pardiwala, J.). The investigation in a right sense could not be initiated in Prohibition CR.No.216 of 1999 till recently and every possible attempt was made to stall the proceedings and hence, conduct of the alleged perpetrators of crime if has contributed in causing inordinate delayin proceeding with investigation, it surely cannot yield any benefits to those, who are contributors or who have chosen to support such moves impliedly or from behind the Page 53 of 55 R/CR.MA/23368/2018 CAV JUDGMENT curtains Petitioner acting as a Superintendent of Police, who is otherwise obliged to safeguard the interest of all the residents of the District and protect the law and order, if is alleged to have indulged in the grave and serious offence of alleged procurement of narcotic substance involving himself along with other members of the police force to conspire against an innocent person, to help the sitting Judge of the High Court in getting the immovable property by overreaching the process of law.
38.2 This entire design also does not inspire confidence that if enlarged during the pendency of trial with his position and past conduct, there may be a serious possibility of tempering with the witnesses and thereby thwart the course of justice. The expertise mastered under the law for having enjoyed different positions as a Senior Police Officer in IPS cadre could result into tyranny for the witnesses who are all his juniors and subvergence of the criminal justice system. Request, for the regular bail therefore, cannot be acceded to. Application for regular bail under section 439 of the Criminal Procedure Code deserves to be rejected.
38.3 However, while balancing the scale, keeping in mind the offence being of the year 1996, where the trial has not as Page 54 of 55 R/CR.MA/23368/2018 CAV JUDGMENT yet begun, the trial Court is directed to expedite the process of completing the trial sooner as possible bearing in mind the provisions of section 309 of the Criminal Procedure Code where the applicant shall cooperate. If the trial does not get concluded within the period of six months, the applicant shall be at the liberty to approach this Court once again.
39 With the above reasonings, the application for regular bail under section 439 of the Criminal Procedure Code is rejected and the same is disposed of. Rule is discharged.
(MS. SONIA GOKANI, J.) SUDHIR Page 55 of 55