AI Structured Summary
Not yet generated for this judgment
Judgment
Divyesh A. Joshi, J
Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.
The present successive application is filed under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for regular bail in connection with the
FIR being C.R. No.I-11210046201139 of 2020 registered with the Puna Surat Police Station, Surat City of the offence punishable under Sections 8(C),
22(c) and 29 of the Narcotics Drugs & Psychotropic Substances Rules, 1985 (for short ‘NDPS Act’)
The facts in brief leading to the filing of the present application are that the police received a secret information from its personal informer that one
Imtiyaz @ Lala Firoz Malek and his friend Mustafa Johar Wana are involved in the trafficking of drugs and they are supposed to transport the
consignment of Mephedrone drugs on an Activa bearing No.GJ-05-SQ-4628 coming from Kadodara and going towards Sardar Market and then
towards Mahidharpura. On the basis of such secret information, a trap was arranged and the accused persons as shown in the FIR came to be
arrested with the contraband article Mephedrone having quantity of 100 gram worth Rs.5,00,000/-. Hence, the impugned FIR.
Learned advocate Mr. Brijesh Trivedi assisted by learned advocate Mr. Amit D. Shah appearing for the applicant submits that the applicant-
accused was arrested on 05.09.2020 and since then he is in jail. Learned advocate Mr. Trivedi further submits the investigation has already been
completed and charge-sheet has also been filed. He submits that this is a second round of litigation, and the earlier bail application filed by the
applicant being Criminal Misc. Application No.15269 of 2023 came to be rejected vide order dated 15.12.2023, and after almost lapse of one year, the
present application has been filed. Learned advocate Mr. Trivedi also submits that there is no direct recovery or discovery at the instance of the
applicant-accused and he is behind the bar since 05.09.2020, i.e., for more than four years. He further submits that while submitting charge-sheet, the
prosecuting agency has cited more than 35 witnesses, out of which, only four witnesses have been examined, which indicates that the trial is likely to
take considerable long period of time, and as such, keeping the applicant-accused behind the bar for such an indefinite period, would be nothing but a
pre-trial conviction. Therefore, considering the period of incarceration already undergone by the applicant-accused, he may be enlarged on bail.
Learned advocate Mr. Trivedi also submits that the other co-accused in the present offence have already been enlarged on bail either by the Sessions
Court or by this Court as well as by the Hon’ble Apex Court, and therefore, on the ground of parity also, the applicant-accused is entitled to be
released on bail. He further submits that the NDPS Act is a special law having certain technicalities to be followed at the time of invocation of the
said provision. There are certain mandatory procedure to be followed by the prosecuting agency while invoking the provisions of the NDPS Act, and if
we go through the contents of the first information report as well as the other materials produced on record, it is found out that certain requisite
procedure as provided under Sections 42 and 52 of the NDPS Act are not properly followed, and therefore, due to breach of the aforesaid provisions,
the benefit of doubt may be given to the applicant-accused. In support of his submissions, learned advocate Mr. Trivedi has relied upon the following
case laws;
“(1) The decision of the Punjab & Haryana High Court in the case of Khushi Ram @ happy vs. State of Punjab, CRM-M-12940 of 2021, decided
on 03.10.2023;
(2) The decision of the Supreme Court in the case of Rabi Prakash vs. The State of Odisha, SLP (Cr.) No.4169 of 2023, decided on 13.07.2023;
(3) The decision of the Punjab & Haryana High Court in the case of Deepak Kumar vs. State of Punjab, CRM-M-13887 of 2024, decided on
22.03.2024;
(4) The decision of the Punjab & Haryana High Court in the case of Kuldeep Singh vs. State of Punjab, CRM-M-14752 of 2024, decided on
10.05.2024;
(5) In the case of Prabhakar Tewari vs. State of U.P. & Anr., reported in 2020 (11) SCC 648,
(6) In the case of Sangram Sadashiv Suryavanshi vs. The State of Maharashtra, reported in 2024 0 Supreme (SC) 1134;
(7) The decision of the Delhi High Court in the case of Tamir Ali vs. Narcotics Control Bureau, Bail Application No.3718 of 2022, decided on
22.05.2023;
(8) The decision of the Rajasthan High Court in the case of Amjad Khan @ Akram @ Ajju vs. State of Rajasthan, Criminal Misc. Application
No.9625 of 2023, decided on 27.05.2024;
(9) In the case of Tareena vs. State NCT of Delhi, Bail Application No.314 of 2024, decided on 28.02.2024;
(10) The decision of the Delhi High Court in the case of Kashif vs. Narcotic Control Bureau, Bail Application No.253 of 2023, decided on 18.05.2023;
(11) The decision of the Orissa High Court in the case of State of Orissa vs. Registrar General, Orissa High Court, Cuttak, Writ Petition (Civil)
No.32580 of 2021, decided on 31.01.2022;
(12) The decision of the Supreme Court in the case of Mohammed Khalid & Anr. vs. The State of Telangana, Criminal Appeal No.1610 of 2023,
decided on 01.03.2024;
(13) The decision of the Allahbad High Court in the case of Dhananjay Singh Second Bail vs. State of U.P. Criminal Misc. Application No.7165 of
2021, decided on 16.10.2023;
(14) The Notification issued by the Government of Sikkim dated 18.05.2023 pursuant to the decision rendered by the Hon’ble Apex Court in the
case of Union of India vs. Mohanlal & Anr., Criminal Appeal No.652 of 2012, vide order dated 28.01.2016 as well as the Standing Order 1/89 dated
13.06.1989 with regard to the procedure to be followed at the time of seizure;
(15) The decision of the Allahbad High Court in the case of Ram Manohar Yadav vs. State of U.P., Thru. Prin. Secy. Home Lko., Criminal Misc.
Bail Application No.6209 of 2023, decided on 28.10.2023;
(16) The decision of the Kerala High Court in the case of Sakeer vs. State of Kerala, Bail Application No.1253 of 2024, decided on 25.04.2024;
(17) The decision of this High Court in the case of Tausif @ Karam Hamid Deewan vs. State of Gujarat, Criminal Misc. Application No.2180 of
2021, decided on 20.04.2021;
(18) The decision of this High Court in the case of Ishak Ibrahim Saiyed vs. State of Gujarat, Criminal Misc. Application No.8134 of 2021, decided on
20.07.2021;
(19) The decision of this High Court in the case of Faisal Abdul Rauf Shaikh vs. State of Gujarat, Criminal Misc. Application No.3938 of 2022,
decided on 15.11.2022;
(20) The decision of this High Court in the case of Mukesh Dolatram Harjani vs. State of Gujarat, Criminal Misc. Application No.11212 of 2014,
decided on 17.11.2014;
(21) The decision of the Punjab & Haryana High Court in the case of Shiv Kumar vs. Narcotic Control Bureau, Chandigarh, 2020 LawSuit (P&H)
615;
(22) The decision of the Delhi High Court in the case of Ginkala Meddilety vs. The State, Bail Application No.1133 of 2022, decided on 05.09.2023;
(23) The decision of this High Court in the case of Khurshid Ahmed @ Pudibaba Ahmednur Sailani vs. State of Gujarat, Criminal Misc. Application
No.19028 of 2024, decided on 03.10.2024;
In such circumstances, referred to above, learned advocate Mr. Trivedi prays that there being merit in this application, the same be allowed and the
applicant-accused be released on bail.
On the other hand, learned APP for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. He
submits that the role of the present applicant is clearly spelt out from the body of the complaint. Learned APP further submits that in the present
offence, MD Drug of 100 Grams has been found from the conscious possession of the applicantâ€"accused and the applicant has been arrested by
the members of the raiding party on the spot. Learned APP also submits that the narcotic substance seized from the applicantâ€"accused is
commercial quantity and, hence, rigors of Section 37 of the NDPS Act would come into play. Learned APP further submits that this is a successive
bail application after rejection of the earlier bail application by this Court vide a detailed judgment without there being any change of circumstances.
The orders of the co-accused relied upon by the learned advocate for the applicant, seeking parity, are all even prior to the filing of the earlier bail
application. There is no substantial change of circumstance after rejection of the earlier bail application. Learned APP submits that in past also, the
applicant was indulged into in similar type of offence. Learned APP has produced the xerox copy of the Rojkam to show the status of trial, and
submits that the trial has been substantially progressed, and out of 35 witnesses, 8 to 9 witnesses have already been examined. From the Rojkam, it
also appears that priority is being given to the present matter, however, due to non-availability of one accused or the other, the trial has been delayed,
and there is no fault on the part of the prosecuting agency. Learned APP submits that from the charge-sheet papers, the involvement of the present
applicantâ€"accused is clearly established and, hence, the present bail application may not be entering.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my
consideration is whether discretion should be exercised in favour of the applicant herein.
In light of the aforesaid, it is pertinent to refer and analyze the provisions and objective of the NDPS Act. Section
37 of the Act reads as under:
“37. 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 1[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.
(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.â€
In view of the gravity of the consequences of drug trafficking, the offences under the NDPS Act have been made cognizable and non- bailable.
The Section does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial
quantity unless the two-fold conditions prescribed under the Section have been met. The conditions include:
a) hearing the Public Prosecutor; and
b) Satisfaction of the court based on reasonable grounds that the accused is not guilty of the offence and that he is likely to not commit an offence of a
similar nature.
The fetters on the power to grant bail does not end here, they are over and above the consideration of relevant factors that must be done while
considering the question of granting bail. The court also needs to be satisfied before grant of bail about the scheme of Section 483 of the BNSS. Thus,
it is evident that the present section limits the discretion of the court in matters of bail by placing certain additional factors over and above, what has
been prescribed under the Code.
The contours of Section 37 of the Act have been analysed by the Hon’ble Supreme Court in the case of Union of India v. Ram Samujh (1999)
9 SCC 429. In this case, the Apex Court adjudged the validity of the order on bail granted by the High Court in a case registered under the Act. The
Hon’ble Court extracted the Statement of Objects and Reasons for the introduction of amended Section 37 of the Act through Bill No. 125 of
1988. It is relevant to extract those for the present analysis, which reads as:
The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill
No. 125 of 1988 thus:
Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being
released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985,
the need to amend the law to further strengthen it, has been felt.""(emphasis supplied)
It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind 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 a deadly impact on the society;
they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking
and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to
punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory
of Goa [(1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24)
With deep concern, we may point out 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, Parliament in its wisdom, has made effective provisions by
introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
Thus, what is evident from the above is that the offences prescribed under the Act are not only a menace to a particular individual but to the entire
society especially, the youth of the country. Such offences have a cascading effect and are in vogue these days, thus destroying the capabilities and
lives of a substantial chunk of the population and trend has been growing over the years. Thus, to prevent the devastating impact on the people of the
nation, Parliament in its wisdom deemed it fit to introduce stringent conditions for grant of bail under the Act. The Court must stay mindful of the
legislative intent and mandate of the Act while considering the question bail in such matters.
As far as condition under Section 37(b)(i) is concerned, there is no ambiguity in its interpretation. It gives effect to the doctrine of audi alteram
partem. Since the crime is an act against the society, the legislature has contemplated that the Public Prosecutor must be given an opportunity to
oppose a bail application under the Act. Additionally, under Section 37(b) (ii) of the NDPS Act, the court is not required to be merely satisfied about
the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but
the court must have, reasonable grounds‟ for such satisfaction.
The term “reasonable grounds‟ under Section 37(b)(ii) has been interpreted by the Hon‟ble Supreme Court in the case of Union of India v.
Shiv Shanker Kesari, (2007) 7 SCC 798. It was a case where an appeal was preferred against the order granting bail under the NDPS Act by the
High Court. The prosecution alleged that the raiding party seized nearly 400 kgs of poppy straw from the possession of the accused therein. The
special court rejected the bail while the High Court granted the bail on the ground that the recovery was not from the exclusive possession of the
accused, but other family members were also involved. The Supreme Court set aside the order granting bail. In this context, it interpreted
“reasonable grounds‟ under Section 37 of the Act, as under:
The expression used in Section 37(1)(b)(ii) is ""reasonable grounds"". The expression means something more than prima facie grounds. It
connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief
contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction
that the accused is not guilty of the offence charged. The word ""reasonable"" has in law the prima facie meaning of reasonable in regard to
those circumstances of which the actor, called on to act Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing
Date:25.01.2022 17:34:17 reasonably, knows or ought to know. It is difficult to give an exact definition of the word ""reasonable"".
Thus, the term “reasonable grounds‟ is not capable of any rigid definition, but its meaning and scope will be determined based on the
surrounding facts and circumstances of each case. Thus, what may be reasonable in one set of facts may not be reasonable in another set of facts.
However, the standard of satisfaction in such cases is more than mere satisfaction on a prima facie opinion. Thus, the court before exercising its
discretion for granting the bail must record the reasonable grounds before granting bail to the accused.
While deciding the cases on facts, more so in criminal cases the court should bear in mind that each case must rest on its own facts and the
similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case (See: Pandurang and Anr. v. State of Hyderabad,
1955(1) SCR 1083). It is also a well-established principle that while considering the ratio laid down in one case, the court will have to bear in mind that
every judgment must be read as applicable to the particular facts proved or assumed to be true. Since the generality of expressions which may be
found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which
such expressions are to be found. A case is only an authority for what it actually decides, and not what logically follows from it. [See :- (1) Quinn v.
Leathem, (1901) AC 495 (2) State of Orissa v. Sudhansu Sekhar Misra (AIR 1968 Supreme Court 647) (3) Ambica Quarry Works v. State of Gujarat
(AIR 1987 Supreme Court 1073)]
Thus, merely by placing bundle of citations stating it to be similar in nature that of the case on hand, will not put the applicant-accused of the
present case into the realm of the facts of those cases, which can be kept in mind while deciding the bail application based on altogether a different set
of facts and circumstances. Thus, in my opinion, as stated above, every case must rest on its own facts and mere similarity of the facts in one case
cannot be used to determine a conclusion of fact in another.
The Supreme Court in the case of Union of India v. Md. Nawaz Khan (2021) 10 SCC 100 has reiterated the position of law with respect to
Section 37 of the Act. After analysing the previous decisions of the Hon‟ble Supreme Court, the court prescribed the following test for granting bail
under Section 37 of the NDPS Act:
Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there
are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on
bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country,
stringent parameters for the grant of bail under the NDPS Act have been prescribed.
Thus, the court must be conscious about the mischief that is sought to be curbed by the Act and the consequences that might ensue if the person
accused of the offence under the Act is released on bail. The court ought to be satisfied on the basis of reasonable grounds discernible from the facts
and circumstances that the applicant is not guilty of offences that the accused is charged with. Additionally, the court also needs to be satisfied that
the person so released will not commit the offence while being on bail. Both the conditions are interlinked because the legislature intends that in cases
where there is a possibility of commission of this grave offence under the Act, the person need not be released. It is so because if the person is
released, he is most likely to repeat the offence, thus impacting the society at large. Thus, to not give any leeway to the accused, the court has to be
satisfied about the dual conditions on reasonable grounds.
In the instant case, the case of the applicant and his role in the entire sequence of events is not as simple as has been projected during the entire
course of arguments by learned counsel for the applicant. He is not merely arrested for the small quantity of contraband but has been implicated for
his role as being a part of a larger drug trafficking. Here, in the present case, the applicant is charged for commercial quantity weighing 100 gram of
Mephedrone and, therefore, his bail application needs to be decided as per Section 37 of the Act. Moreover, all requisite procedures had also been
followed as per the law and, thereafter, the accused persons came to be arrested. At the time of granting bail, the court has to consider the role played
by the applicant-accused in the commission of the offence as well as gravity of offence and in the present case, considering the role played by the
applicant in the offence, as the act of the applicant would effect to the youth of the nation, I am of the opinion that the present application is required
to be rejected.
Proceeding to the application of Section 37 in the instant matter, the Public Prosecutor has been heard who has vehemently opposed the bail
petition with reasons. With respect to the second condition prescribed thereunder, this Court is satisfied that there are no reasonable grounds, based on
the analysis of the provision in the foregoing paragraphs and its application to the facts of the case, for this Court to believe that the applicant is not
guilty of the offence that he has been charged with. Since this court is not satisfied on this ground, there is no question to consider that the accused
will not commit the offence while on bail.
So far as the ground of parity is concerned, the Hon’ble Supreme Court, in the case of Tarun Kumar vs. Asst. Director, Directorate of
Enforcement, SLP (Crl.) No. 9431 of 2023, Bela M. Trivedi, J., speaking for the Bench has observed thus;
“18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were
similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While
applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under
consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group
companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the
ground of infirmity and medical grounds. The co -accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by
the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.)
No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling
the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman
Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of
Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the
appellant’s role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL,
where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under
consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said
order passed by the High Court.â€
In view of the aforementioned facts, circumstances, analysis and reasoning, keeping in mind the legal provisions and the underlying intent as well
as the mischief that is sought to be curbed by the NDPS Act, this Court is of the considered view that the conditions stipulated under Section 37 of the
Act are not satisfied and there are no “reasonable grounds‟ to presume the accused as not being guilty of the offence. Thus, this Court is not
inclined to allow the instant bail application as being devoid of any merit and hence, liable to be rejected.
Accordingly, the instant bail application stands rejected. Rule is discharged.