Gujarat High Court
Asif Parchhavni @ Asif Afsarali Shaikh vs State Of Gujarat on 11 April, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
R/CR.MA/3135/2025 ORDER DATED: 11/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL -
AFTER CHARGESHEET) NO. 3135 of 2025
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ASIF PARCHHAVNI @ ASIF AFSARALI SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
P.S. TOLIA with NITISH M. NAIR with MEGHA M DAVE(8115) for the
Applicant(s) No. 1
MR. L. B. DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 11/04/2025
ORAL ORDER
1. This application is filed by the applicant praying for successive regular bail in connection with an offence being C.R.No.11210046201139/2020, which was registered with Puna Police Station, District-Surat City, for offences under Sections 8(C), 22(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. This application is a successive regular bail application filed in terms of the liberty reserved in favour of the applicant under Page 1 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined order dated 13-09-2024, when the applicant had withdrawn the application with a liberty to file a fresh after a period of one year, if the trial does not progress satisfactorily.
3. Learned Advocate for the applicant has submitted that the period of one year has not lapsed. However, on the basis of change in the circumstance, the present application is filed, particularly on account of grant of bail subsequently to one of the co-accused recently in January 2025.
3.1 Learned Advocate for the applicant has submitted that all the accused who have been charge-sheeted, have been released on regular bail and therefore applying the ground of parity, the applicant is also required to be enlarged on regular bail. 3.2 Learned Advocate for the applicant has submitted that the role attributed to the applicant is quite similar to that of the other co-accused, who are on bail. Moreover, the evidence gathered by the investigating agency against the applicant is also identical. It is submitted that it cannot be said that the applicant was in conscious Page 2 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined possession of the drugs and thereafter also there is no recovery or discovery of drugs from the applicant and therefore it is only the contact between the co-accused and the applicant on some technical evidence, is the only evidence against the applicant. 3.3 It is lastly submitted that the applicant is in custody since four years and there is no possibility of trial being concluded in immediate future. Learned Advocate for the applicant has therefore relied upon various decisions of the Apex Court, where in view of the prolonged trial, the Court has enlarged the applicant on bail. He is referred to the decision in case of Sangram Sadashiv Suryavanshi vs State of Maharashtra reported in 2024 INSC 899 wherein Hon'ble the Apex Court has held that the applicant is entitled to be due to long incarceration and lack of progress of trial.
3.4 Learned Advocate for the applicant thereafter took this Court through various orders passed by the concerned Sessions Court as well as Coordinate Benches of this Court by which co-accused having enlarged on regular bail. He has referred to the decision of Page 3 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined 3rd Additional Sessions Judge, Surat. By this, accused Imtiyaz@ Mana Ismail Shaih has been enlarged on regular bail vide order dated 26-04-2024 passed in Criminal Misc.(Bail) Application No. 2294 of 2021.
3.5 Learned Advocate for the applicant has thereafter referred to decision of Coordinate Bench dated 24-02-2025 passed in Criminal Misc. Application No.2125 of 2025. He has also referred to order dated 20-07-2021 in case of accused; Ishak Ibrahim Saiyed passed in Criminal Misc. Application No.8134 of 2021. By order dated 20-04-2021, the Coordinate Bench of this Court passed order in Criminal Misc. Application No.2180 2021 enlarging Tausif @ Karam Hamid Deewan. Reliance is also placed on order dated 15-11-2022 of the Coordinate Bench passed in Criminal Misc. Application No. 3938 of 2022 enlarging Faisal Abdul Rauf Shaikh on regular bail.
4. Learned APP has strongly objected to the grant of the bail by submitting that the applicant is a part of an organized crime, which is pushing a dangerous drug like Mephedrone into the society and the applicant is a very important connect between the main Page 4 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined facilitator of the narcotic substance from Mumbai to Surat. It is submitted that the prosecution has sufficient evidence to bring on record the role of the applicant as an important link for transporting the drug till the end users. It is submitted that the evidence in the nature of call detail records is also available, where the applicant has talked to the main supplier on several occasions and also talked to other co-accused, who are down in the chain link. Learned APP has submitted that the role of the applicant and the evidence against the applicant cannot be equated with that of the accused, who are enlarged on bail and in fact, the main supplier and other co-accused are already absconding and not available to the investigation, as also the accused persons, who have been enlarged on regular bail, are also not attending the trial and the same is recorded in the rojkam of the trial Court.
5. Having heard the learned Advocates for the respective parties and having produced the documents on record, an FIR came to be registered with Puna Police Station, District-Surat City against six accused persons, where the name of the applicant was not disclosed. However, during the course of investigation, role of the Page 5 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined applicant has appeared to be an intermediary between the supplier and purchaser. Accused Mohsin is the supplier from Mumbai and applicant is the first point of contact for bringing the narcotic substance from Mumbai to Surat and from there, it is through the present applicant, the narcotic substance was supplied to the other accused, who acted as retailers.
5.1 The role attributed to the applicant as per the charge- sheet of the accused persons of this offence, accused Imtiyaz @ Lal S/o. Firoz Malek and accused Mohsin Munavar Khan were in contact of each other. Therefore, after purchasing mephedrone drug from Mohsin Munavar Khan, the said Imtiyaz S/o. Firoz Malek had to give 50 grams out of the said drug to Ishak Ibrahim Saiyed, Mahidharpura, Surat and he had to give 30 grams drug to Imtiyaz @ Mana Ismail Shaikh, Surat and 20 grams drug to Tausif @ Karam S/o. Hamid Diwan, of Village: Karam, Taluka: Vagra, District: Bharuch. Therefore, the accused Imtiyaz S/o. Firoz Malek ordered for 100 grams of drug from the accused Mohsin Munavar Khan and the accused Mohsin Munavar Khan asked his partner absconding accused Faizal Shabbir Shaikh, Mahim, Mumbai to get Page 6 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined the stock of drug from the absconding accused Aasif Parachhavani @ Aasif Thane (Maharashtra) and to deliver the same at Palsana and accordingly, the accused Faizal Shabbir Shaikh collected the stock of drug from Aasif Parachhavani @ Aasif S/o. Afsarali Shaikh and delivered the same to the accused Mohsin Munavar Khan at Palsana and the said stock was lying with accused Mohsinh Munavar Khan. The accused Mohsin Munavar Khan told his brother- in-laws/witnesses Aakib and Asraf in the afternoon on 05/09/2020 that he has to go to Surat for some work and upon saying so, out of the said brother-in-laws, Asraf brought his Innova Car No.GJ-16- BB-5115 and Mohsin Munavar Khan and Aakib were made to sit therein, they came near pump of Bharat Petroleum at Saroli and there, the accused Imtiyaz @ Lal S/o. Firoz Malek called his friend accused Mustufa Johar Vana, of Mahidharpura, Surat to collect the stock of drug and he came on Two-wheeler Activa No.GJ-05-SQ- 4628 and Mohsinh Munavar Khan delivered 100 grams drugs to Imtiyaz @ Lal. After receiving the said stock, while Imtiyaz @ Lala and his friend Mustufa Johar Vana were carrying the same on the Activa, they were nabbed with the stock of drugs at 16.00 o'clock Page 7 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined at the time of passing by on public road located opposite Sardar Palace on the west side out gate of Puna Sardar Market. 5.2 The investigation has evidence such as the call detail records and connect of the applicant with Salman of Bombay, who is a supplier and also with Mohsin, who is also the supplier. It is pertinent to observe that both Salman and Mohsin are absconding and not available for the trial.
5.3 The Court may now discuss the parity claimed by the applicant with the bail orders passed by the Sessions Court as well as Coordinate Bench of this Court, by which accused have been enlarged on bail. This is a case which is of 100gms. of Mephedrone, which is a narcotic substance. The drug Mephedrone came to be added to the schedule of the narcotic substance under the NDPS Act under the Notification dated 05-02-2015 issued by the Ministry of Finance, Department of Revenue, the Drug Mephedrone was added at Sr. No.110B after 110A. This Notification is G.S.R.74(E) again with S.O.375(E), the Notification was issued specifying quantity of 2gm. drawn to be small quantity and 50gm. Page 8 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025
NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined to be commercial quantity. In the present case, when the quantity of Mephedrone as per the charge-sheet is 100 gms., obviously the case under the Act is that of a commercial quantity. 5.4 Once a case of commercial quantity is charged of, Section-37 of the NDPS Act would set in. Section-37(1)(b) of the NDPS Act, clause (i) and (ii) provides for twin conditions before granting bail; the first being an opportunity to the prosecutor and the second being where the prosecutor opposes the application, then the Court has to satisfy itself that there are reasonable grounds for believing that the person seeking bail is not guilty of such an offence, and he is not likely to commit any offence while on bail. 5.5 With this background, the Court may examine the oral orders on which reliance is placed by the applicant for claiming the parity. In case of co-accused Imtiyaz Lala passed in Criminal Misc. Application No.2125 of 2025, the Court does not find the discussion with regard to the twin test as though categorical stand was taken by the Public Prosecutor regarding recovery of 100 gms. Mephedrone from the conscious possession. No primary conclusion Page 9 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined is given that there are no reasonable grounds to believe that the co-accused is not guilty of such offence.
5.6 Similarly, in case of co-accused; Ishak Ibrahim Saiyed passed in Criminal Misc. Application No.8134 of 2021, there is no discussion with regard to Section 37 of the NDPS Act and the Coordinate Bench consider the case of the co-accused by treating the quantity of Mephedrone drug only to the extent of 50 gms. on the ground that the case of the prosecution is that the applicant was to receive 50 gms. out of the total 100 gms. In yet another oral order in case of Tausif @ Karam Hamid Deewan passed in Criminal Misc. Application No.2180 2021, the Coordinate Bench considered the case against such co-accused only to the extent of 20 gms. as the co-accused applicant therein was to receive 20 gms. of Mephedrone drug out of total 100 gms. Where in case of Faisal Abdul Rauf Shaikh passed in Criminal Misc. Application No.3938 of 2022, reference is made to Notification in the Gazette of India, which pertains to Ganja and prescribing 20 kg. to be the commercial quantity, whereas the drug which is in question in the present case is of Mephedrone.
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NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined 5.7 The Sessions Court, while considering the case of Imtiyaz@ Mana Ismail Shaih, has in its discussion, observed that the riggers of Section 37 of the NDPS Act will not apply as the case of the prosecution against this accused is to receive 20 gm. of Mephedrone drug, which is less than the commercial quantity prescribed.
5.8 The Court having examined the role attributed to the applicant and the nature of evidence on record of the investigation, particularly the call detail records of the applicant with the accused persons and other co-accused. There is sufficient evidence to implicate the applicant in the offence as one of the connecting link and that to a crucial link in the network of pushing narcotic substance Mephedrone in the market and therefore finds that there is no reasonable ground to believe that the applicant has not committed the offence.
5.9 In the opinion of this Court that for the reasons accepted by the Coordinate Bench as well as the Sessions Court in Page 11 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined enlarging the co-accused and the discussion made in the preceding paras in connection with the oral orders, the Court is not inclined to accept the parity as claimed by the applicant. 5.10 The applicant has also relied upon the order dated 17 th January 2025 in case of Mustafa Johar Vana passed in SLP (Criminal) No.15518 of 2024, enlarging the co-accused on regular bail, which order is cited as a subsequent development to the withdrawal of the bail application by the applicant. The order has been passed only on the basis of the incarceration suffered by the applicant therein, said accused; Mustafa was arrested on 06-9-2020 and his name was reflected as an accused from the very beginning. Whereas the present applicant was apprehended later on, as his name was disclosed during the course of investigation and the applicant was arrested on 13-12-2020.
5.11 The Court has examined the status of the trial, wherein it appears that there are total 35 witnesses as per the charge-sheet placed on record by the applicant at Annexure-B, Page-12 and reportedly 8 witnesses have been examined at this stage. The Court Page 12 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined may refer to Special NDPS Case No.35 of 2020 pertaining to the present offence, wherein it is recorded that the co-accused who have been enlarged on bail particularly accused nos. 3, 4 and 6 are not remaining present before the trial Court and therefore on 03-12-2024, non-bailable warrant has been issued. Accused No.5 has absconded and necessary steps have been taken to arrest the absconding accused. Over and above, two of the accused; Salman and Mohsin are yet to be arrested in the present offence. 5.12 Thereafter, learned Advocate for the applicant has relied upon the judgment of Apex Court in case of State by Intelligence Officer (NCB) Bengaluru Zonal Unit, Bengaluru versus Pallulabid Ahmad Arimutta and another reported in (2022) 12 SCC 633, to support his contention about the details which are required to be examined at the stage of trial and therefore in the present case also, the evidence of C.D.R. may not come in way of bail application for the present applicant. It may be pertinent to point out that the aforesaid decision was rendered by the Apex Court, when the prosecution approach the Apex Court for cancellation of Page 13 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined bail, where the applicant was already on regular bail by the High Court.
5.13 Another decision relied upon by the applicant is in case of Javed Gulam Nabi Shaikh v/s. State of Maharashtra reported in (2024) 9 SCC 813, substantial argument is that long incarceration and delay in trial, the applicant would be entitled to get the bail. 5.14 In this regard, the Court may observe that this Court while permitting withdrawal of the previous bail application and giving liberty to approach after period of one year, had also expedited the trial. Undoubtedly the period of one year after the previous order dated 13-09-2024 is yet to expire, therefore relied upon the decision of the Apex Court in case of X versus State of Rajasthan and another reported in 2024 INSC 909 where in Para-14, the Court has observed that in serious offences, once the trial commences and witnesses are being examined, the trial Court or the High Court should be loath in entertaining the bail applications of the accused. In the present case, as is observed that the trial is ordered to be expedited and 8 witnesses out of 35 witnesses, having Page 14 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025 NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined been examined, the Court is not inclined to exercise the discretion in favour of the applicant.
5.15 Following the decision of the Apex Court in case of Tarun Kumar v/s. Assistant Director, Directorate of Enforcement, reported in, AIR 2024 SC 169, the Hon'ble Supreme Court again in case of Sabita Paul v/s. State of West Bengal and another, in Criminal Appeal No.1772 of 2024, has held in para 9 as under:-
"9. Grant of bail based on parity is not a claim of right. The same is well- established. While applying this principle of parity, the Court is required, as was recently observed in Tarun Kumar v. Assistant Director Directorate of Enforcement, the Court is required to focus on the role attached to the accused whose application is under consideration. In the facts, the prime accused who is alleged to have initially conducted the blackmail, whom the complainant is said to have paid 'hush-money', has been granted bail and the role played by the instant appellant was only to further the alleged acts of her son. She has not acted independently, to further aggravate the situation."
5.16 By the aforesaid order, Hon'ble Supreme Court confirmed the grant of anticipatory bail. However, by referring to the decision in case of Tarun Kumar (Supra), the Court in para 9 has held that the Court is required to focus on the role attributed to the accused, whose application is under consideration. Page 15 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025
NEUTRAL CITATION R/CR.MA/3135/2025 ORDER DATED: 11/04/2025 undefined 5.17 It would be appropriate to give due regards to the submissions made by the learned APP bringing of notice of the Court the grim situation that is prevailing, especially in the State of Gujarat where offences under the provision of NDPS Act dealing with the drugs like 'Ganja', Charas', 'Mephedrone' and 'Amphetamine' are on huge increase and the action is taken by the Government Agency to deter the use from indulging into the activities related to drugs which include the drug dealing, drug peddling and drug consuming.
6. For the forgoing reasons and especially the breach of liberty exercised in favour of the co-accused and two of the accused are still absconding, the Court is not inclined to entertain the present application. Hence, the application therefore deserves to and is hereby dismissed. Rule is discharged.
(A.Y. KOGJE, J) PARESH SOMPURA Page 16 of 16 Uploaded by MR PARESH J SOMPURA(HC00451) on Mon Apr 21 2025 Downloaded on : Sat May 03 03:22:24 IST 2025