Gujarat High Court
Kaliya @ Kalu Trinath Gaud vs State Of Gujarat on 21 October, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
R/CR.MA/18738/2020 ORDER DATED: 21/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18738 of 2020
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KALIYA @ KALU TRINATH GAUD
Versus
STATE OF GUJARAT
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Appearance:
MR. SURAJ A SHUKLA(7185) for the Applicant(s) No. 1
MR J. K. SHAH, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 21/10/2022
ORAL ORDER
1. By this successive bail application, the applicant has prayed for release on regular bail in connection with the First Information Report bearing II-CR no.102 of 2018 dated 22.1.2018 lodged with Varachha Police Station, Surat for the offences punishable under sections 8(C), 20(B)(2)(C), 22(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "Act of 1985").
2. Mr Suraj A. Shukla, learned advocate appearing for the applicant submitted that the applicant is in custody since 8.11.2019 in connection with the First Information Report bearing II-CR no.102 of 2018 dated 22.1.2018 lodged with Varachha Police Station, Surat for the offences punishable under sections 8(C), 20(B)(2)(C), 22(C) and 29 of the Act of 1985. It is submitted that the allegation is against the applicant and one another. It is alleged that on 22.1.2018, at around 2.20 p.m. two persons were found riding grey colour moped with a white colour bag in their possession near the railway track and when they saw the police personnel approaching Page 1 of 7 Downloaded on : Sun Dec 25 04:40:52 IST 2022 R/CR.MA/18738/2020 ORDER DATED: 21/10/2022 them, left the moped and the bag and fled away. It is submitted that narcotics substance like cannabis were found and upon further search in nearby place, the police personnel found another 5 plastic bags with the cannabis in the cabin near the plot.
2.1 It is submitted that the applicant, is wrongly implicated for, the applicant was not at all in possession of the contraband articles and was not found from the spot. It is further submitted that in the First Information Report, it has been alleged that two young boys, aged 20 to 21 years were carrying the contraband articles; however, the applicant has been arrested who is aged around 34 years. Therefore, if one is to go by the First Information Report and more particularly, the age of the persons who were found with the contraband article, the applicant is wrongly implicated.
2.2 It is also submitted that the applicant is aged 34 years with no past criminal antecedents and if he is to remain behind the bars for a long period, it is likely to affect the future; status and reputation of the applicant. It is further submitted that the applicant is in jail since 8.11.2019; however, till date, trial in the present case, has yet not commenced. Continuation of the applicant in jail, would be pretrial punishment violating the applicant's rights of personal life and liberty as envisaged under Article 21 of the Constitution of India. It is also submitted that chargesheet has already been filed and investigation is completed and therefore, the presence of the applicant for further interrogation is not required. It is therefore urged that accepting the successive bail application, the applicant be released on regular bail.
2.3 Reliance is placed on the judgment of the Apex Court in the case of Satender Kumar Antil v. Central Bureau of Investigation Page 2 of 7 Downloaded on : Sun Dec 25 04:40:52 IST 2022 R/CR.MA/18738/2020 ORDER DATED: 21/10/2022 reported in 2022 LiveLaw (SC) 577. It is submitted that the Apex Court, was considering the issue of seeking bail by the applicant after filing of the final report on interpretation of section 170 of the Code of Criminal Procedure, 1973. It is submitted that so far as the offences under the Act of 1985 are concerned, it has been dealt with and the Apex Court, in paragraph 64, has held and observed that the general principle governing the delay, would also apply to the special Act. It has been held and observed that rigor as provided under section 37 of the Act of 1985 would not come in the way in such a case more particularly dealing with the liberty of a person. It has been held and observed that more the rigor, the quicker the adjudication ought to be. It is therefore urged that considering the incarceration of the applicant, present successive bail application deserves to be allowed.
3. On the other hand, Mr J. K. Shah, learned Additional Public Prosecutor, has vehemently opposed the maintainability and entertainment of the writ application. It is submitted that the present successive bail application is not entertainable at all, considering the fact that the applicant, was in possession of the commercial quantity and there is no change in circumstances pointed out by the applicant after the withdrawal of the regular bail application. It is submitted that the detention and the delay, cannot be of any help to the applicant. It is submitted that sub-clause (ii) of clause (b) of sub-section (1) of section 37 of the Act of 1985 provides that the Court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail. It is submitted that provisions of section 37, touches the society and what is more important, is that it should be clear that the applicant Page 3 of 7 Downloaded on : Sun Dec 25 04:40:52 IST 2022 R/CR.MA/18738/2020 ORDER DATED: 21/10/2022 is not guilty and not likely to commit any offence. In the present case, the applicant, has committed the offence under the provisions of the Act of 1985 and the quantity found is a commercial quantity.
3.1 Reliance is placed on the judgments, namely: (i) Narcotics Control Bureau v. Krishan Lal and Others reported in (1991) 1 SCC 705; (ii) Union of India v. Shri Shiv Shanker Kesari reported in (2007) 7 SCC 798; and (iii) State of Madhya Pradesh v. Kajad reported in (2001) 7 SCC 673.
3.2 It is submitted that the present, is a successive bail application and the scope for entertainment is very narrow. Considering the serious offence and the role attributed to the applicant and in absence of the applicant having pointed out the changed circumstances i.e. actual and factual change in circumstances, the present application, may not be entertained.
4. Heard Mr Suraj A. Shukla, learned advocate for the applicant and Mr J. K. Shah, learned Additional Public Prosecutor for the respondent-State and perused the documents available on record.
5. Pertinently, the present is the successive bail application filed by the applicant. Earlier, the applicant had preferred a Criminal Miscellaneous Application no.528 of 2020 before the Court of learned Additional Sessions Judge, Surat seeking regular bail which, came to be rejected vide order dated 22.1.2020. The learned Additional Sessions Judge, Surat, was of the opinion that 93.76 kilo grams of Ganja was recovered from the plot in possession of the applicant, being a commercial quantity and at the time of raid, the applicant fled away seeing the police officials. Considering the provisions of section 37 of the Act of 1985, the bail application was not entertained. The applicant, thereafter, preferred Criminal Page 4 of 7 Downloaded on : Sun Dec 25 04:40:52 IST 2022 R/CR.MA/18738/2020 ORDER DATED: 21/10/2022 Miscellaneous Application no.9846 of 2020 before this Court. This Court, since was not inclined to entertain the application, the learned advocate for the applicant, sought permission to withdraw the application with a liberty to approach this Court after sometime. Permission was granted with the said liberty. The present successive bail application has been filed apropos the said liberty.
6. This Court, confronted Mr Suraj A. Shukla, learned advocate for the applicant to point out the change in circumstances after the withdrawal of the bail application. Mr Suraj Shukla, learned advocate, fairly conceded that there is no change in the circumstances. The present successive bail application, has been filed, since the liberty was granted to approach this Court after sometime. Therefore, concededly, after the withdrawal of the regular bail application, there is no change in the circumstances which would entitle the applicant to file the present application. The applicant, has also urged that the applicant is in jail since 8.11.2019 and therefore, the present successive bail application be considered. Therefore, the only argument which, the applicant has advanced in support of his application is that he is in jail since 8.11.2019.
7. Apt would be the judgment of the Apex Court in the case of Narcotics Control Bureau v. Mohit Aggarwal reported in 2022 LiveLaw (SC) 613. The Apex Court, was considering the provisions of section 37 of the Act of 1985. In paragraph 14, the Apex Court, has held and observed that the expression "reasonable grounds" used in clause (b) of sub-section (1) of section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. It has also been held and observed that for arriving at any such conclusion, such facts and Page 5 of 7 Downloaded on : Sun Dec 25 04:40:52 IST 2022 R/CR.MA/18738/2020 ORDER DATED: 21/10/2022 circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Paragraphs 14, 15 and 18 read thus:
"14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.
18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the chargesheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act."
In paragraph 18, the Apex Court, has held and observed that the length of period of custody or the fact that the chargesheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the person concerned under section 37 of the Act Page 6 of 7 Downloaded on : Sun Dec 25 04:40:52 IST 2022 R/CR.MA/18738/2020 ORDER DATED: 21/10/2022 of 1985.
8. Apt also would be the judgment of the Apex Court in the case of State of Madhya Pradesh v. Kajad (supra) wherein, in paragraph 8, it has been held and observed that successive bail application are permissible under the changed circumstances, but, without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under the criminal law. Paragraph 8, reads thus:
"8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case No. 2052 of 2000 on 5-6-2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa & Anr. and various other judgments."
9. Therefore, in absence of any changed circumstances only on the ground that the applicant is in jail since 8.11.2019 the present successive application for bail cannot be entertained. The application is hereby rejected.
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 7 of 7 Downloaded on : Sun Dec 25 04:40:52 IST 2022