Gujarat High Court
Mayur Jamanbhai Ajani vs State Of Gujarat on 12 December, 2024
NEUTRAL CITATION
R/CR.MA/22967/2023 ORDER DATED: 12/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 22967 of 2023
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MAYUR JAMANBHAI AJANI
Versus
STATE OF GUJARAT
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Appearance:
MR HIRENKUMAR M NIYALCHANDANI(9959) for the Applicant(s) No. 1
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 12/12/2024
ORAL ORDER
[1.0] RULE. Learned APP waives service of notice of Rule for and on behalf of the respondent - State of Gujarat.
[2.0] By way of present application under Section 439 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the applicant is seeking regular bail in connection with FIR being CR No.11208056230571 of 2023 registered with Thorala Police Station, Rajkot City for the offence under Sections 8(C), 21(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act").
[3.0] Heard learned advocate for the applicant and learned APP for respondent - State of Gujarat.
[4.0] The case of the prosecution is that based on the intelligence, on 08.10.2023, raid was conducted and applicant herein was caugh red- handed with conscious possession of (i) 32.01 grams of brownsugar worth Rs.1,60,050/-; (ii) 6.07 grams of mephedrone worth Rs.60,700/-; (iii) 4.93 grams of metha amphatamine worth Page 1 of 7 Uploaded by MR. AJAY C MENON(HC00939) on Thu Dec 12 2024 Downloaded on : Thu Dec 12 22:32:00 IST 2024 NEUTRAL CITATION R/CR.MA/22967/2023 ORDER DATED: 12/12/2024 undefined Rs.49,300/- and (iv) one injection was recovered. In this regard, the FIR came to be filed. After investigation, charge-sheet is filed against the present applicant and Rakeshbhai Jivanlalji Meena and one accused Dashrathlal Mangilal Meena is still on run and is yet to be arrested. The allegation is that the present applicant ordered the contraband from the co-accused Rakesh Meena and is found with conscious possession of the narcotic and psychotropic substance.
[5.0] Learned advocate for the applicant has submitted that the the applicant is innocent and falsely enroped in the present case, charge- sheet is filed and nothing is required to be recovered or discovered from the present applicant. Further, even the total quantity of contraband recovered in the present offence is not commercial quantity and therefore, rigors of section 37 of the NDPS Act would not be applicable. He has submitted that if the applicant is not released even after filing of charge-sheet, same would be pre-trial conviction to the applicant and therefore, he has requested to release the applicant on any stringent condition.
[6.0] Learned APP has vehemently opposed the present application on the ground that though charge-sheet is filed against the present applicant but the co-accused still absconding and yet to be arrested and if the applicant is released then it will seriously hamper the case of prosecution. Further, merely filing of charge-sheet is not a ground to grant bail to the applicant and therefore, he has requested to dismiss the present application as the CDR and evidence of other money transactions are collected and co-accused is at large and yet to be arrested and from conscious possession of the present applicant, various contraband are recovered.
[7.0] Perusing the investigation papers and charge-sheet papers, it Page 2 of 7 Uploaded by MR. AJAY C MENON(HC00939) on Thu Dec 12 2024 Downloaded on : Thu Dec 12 22:32:00 IST 2024 NEUTRAL CITATION R/CR.MA/22967/2023 ORDER DATED: 12/12/2024 undefined appears that at the instance of Police Head Constable Jigneshbhai Mansukhbhai Amreliya, S.O.G. Branch, Rajkot City, an offence came to be registered on 08.10.2023 for offence under Sections 8(C), 21(B) and 29 of the NDPS Act alleging that accused No.1 was caught red handed with (i) 32.01 grams of brownsugar worth Rs.1,60,050/-; (ii) 6.07 grams of mephedrone worth Rs.60,700/-; (iii) 4.93 grams of metha amphatamine worth Rs.49,300/- and (iv) one injection. Thus, though the contraband found in conscious possession of the present applicant is not commercial quantity but it is an admitted fact that the applicant ordered the said contraband from the co-accused and the IO has carried out the procedure strictly as per the rules and regulations and applying the mandatory provisions of the NDPS Act.
[8.0] The main argument of the learned advocate for the applicant is that applicant is behind the bars since 08.10.2023 and trial will take its own time and now as the charge-sheet is filed, applicant is entitled for bail. Herein, the material collected during investigation clearly reveals that applicant had ordered different types of contraband so recovered during the raid which is intermediate quantity however, only because the quantity is not commercial quantity and is intermediate quantity, the applicant-accused as of right cannot claim bail because applicant - accused are aware of the rigors of section 37 of the NDPS Act and so as to come out from the stringent conditions of bail on safer side they possessed only intermediate quantity with pre-planning and conscious mind. Herein, accused is found with various types of drugs obviously for selling purpose and co-accused Dashrath Meena is still absconding and yet to be arrested.
[8.1] Second aspect which is required to be considered is that during investigation, sufficient material is collected and applicant is found to Page 3 of 7 Uploaded by MR. AJAY C MENON(HC00939) on Thu Dec 12 2024 Downloaded on : Thu Dec 12 22:32:00 IST 2024 NEUTRAL CITATION R/CR.MA/22967/2023 ORDER DATED: 12/12/2024 undefined be in constant contact of the supplier viz. Rakesh Meena and even CDR details are also collected, which reveals constant communication between the present applicant and the supplier of narcotic and psychotropic substance. In the case of Union of India v. Nawaz Khan reported in (2021) 10 SCC 100 (3 Judges' Bench), the Hon'ble Supreme Court has elaborately discussed the test which the High Court should adopt while granting bail, "reasonable grounds to believe", "conscious possession" of contraband and principles for ascertaining the same have been summarized. Merely the contraband was not in conscious possession of present applicant does not absolve him of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. The term "possession" could mean "physical possession"
with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on such knowledge, which is revealed from the fact that different contraband substances are recovered from the conscious possession of the accused.
[8.2] Even, from the bare perusal of the investigation papers, it appears that other co-accused Dashrath Meena, who has also indulged in similar type of activity, is yet to be arrested. In that regard, investigation is going on and there is sufficient material collected during the investigation including the CDR between the present applicant from whose conscious possession various type of narcotic and psychotropic substances have been recovered and the co-accused Rakesh Meena and Dashrath Meena and also there is money trail and money transactions between the present applicant and the co- accused which shows that number of times amounts have been transferred through UPI by the accused. The co-accused has not Page 4 of 7 Uploaded by MR. AJAY C MENON(HC00939) on Thu Dec 12 2024 Downloaded on : Thu Dec 12 22:32:00 IST 2024 NEUTRAL CITATION R/CR.MA/22967/2023 ORDER DATED: 12/12/2024 undefined cooperated in the investigation and still at large and therefore, if the applicant is released on bail then the possibility of tampering with evidence cannot be ruled out and would adversely affect the case of prosecution and applicant may jump the bail and flee from justice.
[8.3] A Liberal approach in the matter of bail under the NDPS Act is uncalled for. The words "reasonable grounds" also appear in clause (i) of Section 437 of Cr.P.C. but the authority given to a High Court or a Court of Session under clause (a) of Section 483 of BNSS (section 439 of CrPC) permitting release on bail of any person accused of an offence would be curtailed in view of the stringent provision. The limitations prescribed under the NDPS Act on granting of bail are in addition to the limitations under CrPC or any other law for the time being in force, as once again after being released on bail in connection with offence under the NDPS Act, he has indulged in similar type of offence against the society.
[8.4] Moreover, other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years.
Page 5 of 7 Uploaded by MR. AJAY C MENON(HC00939) on Thu Dec 12 2024 Downloaded on : Thu Dec 12 22:32:00 IST 2024 NEUTRAL CITATION R/CR.MA/22967/2023 ORDER DATED: 12/12/2024 undefined
[8.5] The seriousness of cases under the NDPS Act have to be viewed like this that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly impact on the society,that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Special provisions under the Act.
[8.6] Further, in the present case, one accused is yet to be arrested and therefore, in view of seriousness of the offence under the NDPS Act as also the law laid down by the Hon'ble Supreme Court in the case of (1) Bhawani Singh vs. State of Rajasthan reported in 2022 SCC OnLine SC 1991 as well as in the case of (2) State of Meghalaya vs. Lalrintluanga Sailo and Another reported in 2024 SCC OnLine SC 1751 and (3) State by the Inspector of Police vs. B. Ramu reported in 2024 INSC 114, the applicant is not entitled to any relief from this Court, as he has indulged in similar nature of offence and continued illegal activity.
[9.0] Learned advocate for the applicant has prayed for bail on the Page 6 of 7 Uploaded by MR. AJAY C MENON(HC00939) on Thu Dec 12 2024 Downloaded on : Thu Dec 12 22:32:00 IST 2024 NEUTRAL CITATION R/CR.MA/22967/2023 ORDER DATED: 12/12/2024 undefined ground of delay in trial as he is arrested on 08.10.2023 but upon inquiry and perusing the report it appears that the applicant has till date not engaged an Advocate before the learned trial Court due to which trial could not progress and hence, there is no delay attributable to the trial Court and whatever delay is caused in due to fault on the part of the applicant-accused and applicant is used to take advantage of leeway like delaying the trial, less than commercial quantity or intermediate quantity of contraband and on or another pretext planning to secure the bail. Considering the aforesaid fact, argument canvassed by the learned advocate for the applicant for bail is not acceptable because delay is caused due to fault on the part of the applicant and not the trial Court.
[10.0] In view of the above, there being no merits in the present application, same is hereby dismissed. However, learned trial Court is directed to expedite the trial at the earliest, as the applicant is an under-trial prisoner. Learned trial Court to expedite the trial as early as possible and if applicant fails to engage an Advocate then he shall be provided legal aid from the office of Chief Defence Counsel. Rule is hereby discharged.
[11.0] It is made clear that the observations made in the present order are tentative in nature and the learned trial Court shall decide the case of the applicant on its own merits without being influenced by the observations made in the present order.
(HASMUKH D. SUTHAR, J.) Ajay Page 7 of 7 Uploaded by MR. AJAY C MENON(HC00939) on Thu Dec 12 2024 Downloaded on : Thu Dec 12 22:32:00 IST 2024