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Gujarat High Court · body

2021 DIGILAW 1050 (GUJ)

ADEEL SALIM NURANI v. STATE OF GUJARAT

2021-11-24

A.Y.KOGJE

body2021
ORDER : 1. This application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR registered as C.R. No.I11210015200082 of 2020 with SURAT DCB POLICE STATION, DISTRICTSURAT, for the offence punishable under Sections 8(C), 22(c), 29 of NDPS Act. 2. Learned Senior Advocate appearing on behalf of the applicant submits that considering the nature of offence, the applicant may be enlarged on regular bail by imposing suitable conditions. 3. Learned Senior Advocate for the applicant submitted that now the investigation is concluded and chargesheet is filed and the entire evidence is in custody of the Investigating Officer and therefore, no purpose will be served to continue the applicant in custody. Moreover, it is also submitted that the applicant has been in custody since 1st October, 2020. The trial is not likely to conclude in near future and on this ground alone, the applicant is required to be enlarged on regular bail. 4. It is submitted that the applicant is not having any past antecedents and in fact, the prohibited Narcotic substance was never recovered from the conscious possession of the applicant and therefore, only evidence available against the applicant is the statement of co-accused. 5. It is submitted that from the investigation papers, there is no evidence to connect the applicant with the other accused more particularly accused no.1 from whom the prohibited drugs were recovered and the allegations is that the said accused no.1 has received the prohibited drugs from the Drug Peddlers of Vapi and Mumbai. Name of the applicant being disclosed by the accused no.1 is also in doubtful manner because as reflected in the FIR, the applicant is referred as first name only by the accused no.1 who is stated that the accused no.1 had received contraband from the present applicant beyond that there is no other identification as even mobile number of the applicant was not disclosed by the accused no.1. 6. It is submitted that the applicant cannot be considered to be Dealer / Peddler of drug at the most, the applicant himself may be considered to be addict and was purchasing the same for the purpose of his own consumption. 6. It is submitted that the applicant cannot be considered to be Dealer / Peddler of drug at the most, the applicant himself may be considered to be addict and was purchasing the same for the purpose of his own consumption. It is submitted that allegations against the applicant of transfer of money can only establish that the transfer of money only to the extent of Rs.3,41,000/and therefore, at the best, it can be case against the applicant, he had transferred the money to the accused no.1 to the aforesaid extent only for the purpose of purchasing the drugs for his own consumption and that to for intermediate quantity. Therefore, considering the sentence the applicant may also to be enlarged on regular bail. 7. Learned Senior Advocate for the applicant lastly submitted that the prosecution has faulted by considering the entire contraband substance and holding the applicant along with co-accused to be responsible for the entire substance, if the case of the applicant is considered then, even from the quantity attributed to the accused no.1 being 34 gms, Section37 of the NDPS Act cannot be attracted. Therefore, in absence of rigour, the Court may consider the case by applying the requirement of the Section 439 of the Code of Criminal Procedure, 1973. 8. Learned Senior Advocate for the applicant has referred to several cases wherein Coordinate Bench of this Court in the offence under the provisions of NDPS Act has considered the case for the grant of bail. 9. Learned Senior Advocate for the applicant has also drawn attention of this Court to the decision of Bombay High Court in case of Aryan Shah Rukh Khan Vs. The Union Of India & ANR. passed in Criminal Bail Application No. 3624 OF 2021 dated 28-10-2021, where considering the provision of NDPS Act, bail has been granted to the accused. Reliance is placed particularly on Para14 and para15 and equating the role of the applicant that the role of the accused in the case cited. 10. On the other hand, the learned Additional Public Prosecutor appearing for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned Additional Public Prosecutor also submitted that offence is of gross nature involving contraband of MD drugs of 1011.82 gms from the accused no.1. 10. On the other hand, the learned Additional Public Prosecutor appearing for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned Additional Public Prosecutor also submitted that offence is of gross nature involving contraband of MD drugs of 1011.82 gms from the accused no.1. During the course of investigation, the role of the applicant has emerged and the role is not merely as the consumer as is sought to be canvassed by the applicant. During the course of the investigation, it was found that the prime accused Mohammad Salman was residing in the residential flat, which was of the ownership of the present applicant. From the statement of the witnesses to substantiate that it was the applicant who had made arrangement for Mohammad Salman to occupy and reside in the residential flat of his ownership. 11. It is submitted that during the course of investigation, the applicant was in constant touch with the prime accused and the Call Detail Records were also now the part of the investigation. It is submitted that the investigation has records of transfer of money from the applicant to prime accused and this fact is evident from the records in the Mobile phone which were being used for the purpose of electronic bank transfers. 12. The prosecution has also relied upon the Diary maintained by the main accused where the name of the applicant is also reflected which is indicative of consistent supply of contraband drugs. 13. Learned APP also submitted that the Investigating Agency has statements of several witnesses to substantiate the case against the applicant that he was not purchasing the drugs, but also selling and circulating by hosting parties for the consumers of the drugs. 14. In rejoinder, learned Senior Advocate for the applicant submitted that the applicant is from reputed family and at best, it can be stated that the applicant himself being drug addict and his other friends also drug addicts. The applicant was making arrangement on behalf of himself and his friends also, his role is not inflicted to that Drug Peddler or dealer. 15. The applicant was making arrangement on behalf of himself and his friends also, his role is not inflicted to that Drug Peddler or dealer. 15. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the investigation pertains to the offence being CR No.I11210015200082 of 2020 dated 22/09/2020 was registered with DCB Police Station, Surat for the offences punishable under section 8 (C), 22 (C) and 29 of NDPS Act. Initially the complaint was lodged against 2 persons namely accuse No. 1 Mohammad Salman and Accused No. 2 Adil Salim Nurani. Initially the contraband MD Drugs was seized was of 1011.82 grams from accused No. 1. After the lodgment of the criminal complaint, the investigating agency commenced the investigation and the present applicant accused was arrested on 01/10/2020. 16. After completion of investigation, the investigating agency had submitted charge sheet dated 11/03/2021 to the competent Court wherein the present applicant is placed at accused No. 4 in charge sheet. The further investigation as per section 173 (8) of Criminal Procedure Code is ongoing considering the seriousness of the crime and even in further investigation also, further sensitive and relevant a material was revealed. The present applicant accused has filed an application under section 439 of Criminal Procedure Code being Criminal Misc. Application No. 1962 of 2021 before the Court of learned 3rd Additional Session Judge, Surat. The said application was dismissed vide order dated 12/04/2021 and therefore, the present applicant accused has approached this Hon’ble Court by present application. 17. The prime accused namely, Mohammad Salman is residing at flat No. 502, Shilp Villa Apartment, Dumas and the present applicant accused is the registered owner of the said property and after arrest of the present applicant accused, the present applicant accused has created story of giving the flat to the prime accused on rent basis. However, no such documentary evidence could be produced by the present applicant accused. It is the matter of investigation papers that the prime accused Mohammad Salman was utilizing the flat and was actively doing business of procuring, circulating and selling contraband material from the very flat No. 502. However, no such documentary evidence could be produced by the present applicant accused. It is the matter of investigation papers that the prime accused Mohammad Salman was utilizing the flat and was actively doing business of procuring, circulating and selling contraband material from the very flat No. 502. Statements of witnesses to the effect that the prime accused Mohammad Salman was residing at the flat of the applicant accused and the statements of Soma Hashad Bhagat and Renuben Anandbhai, clearly certifies that the present applicant accused had permitted the main accused to reside at the flat. 18. The telephone call details of the present applicant accused with the prime accused was revealed and in all, the present applicant accused has made at least 242 telephone calls to various numbers of the prime accused and it proves the active connection of the present applicant accused with the prime accused. 19. The data of mobile phone of prime accused, one image of Rs. 3 Lac was retrieved and the said amount is given by the present applicant accused to prime accused for purchasing the contraband. The total amount of Rs. 41,000 was transferred by the present applicant accused to the prime accused Mohammad Salman and his Brother Ali, by way of Electronic and Bank transfer. Six diaries were seized of the prime accused Mohmand Salman and on plain appreciation of such document, it would be clear that the present applicant accused has purchased contraband material repeatedly from the prime accused. The statements of total 7 independent witnesses, who have categorically stated that the present applicant accused was the organizer of various parties and through him, the contraband MD Drugs was being purchased and on plain appreciation of such statements, it is crystal clear that the present applicant is actively involved in the serious offence purchasing, selling and circulating the contraband of MD Drugs. 20. The Court has taken into consideration the papers of the investigation which includes the statements of the witnesses, Diary of the main accused which indicates the role of the applicant. The Court has also taken into consideration the CDR and mobile conversations along with sample recording, which clearly reflects the role and complacency of the applicant in the offence. 21. The Court has taken into consideration the papers of the investigation which includes the statements of the witnesses, Diary of the main accused which indicates the role of the applicant. The Court has also taken into consideration the CDR and mobile conversations along with sample recording, which clearly reflects the role and complacency of the applicant in the offence. 21. The case cited of Aryan Shah Rukh Khan (supra), it would be pertinent to refer to Para14 of the said order, where the Court prima facie has not noticed any positive evidence against the applicant on the issue of conspiracy. The case was further considered on the ground that the accused in that case was not found any possession of any objectionable substance. Viewed along with lack of evidence to establish the conspiracy, the discretion was exercised in favour of the applicant therein. Such is not case in the present case as discussed in the preceding paras, there is sufficient evidence prima facie for this Court to conclude the complacency of the applicant in the offence. 22. The cases referred to by the applicant and copies of the order annexed along with application are pertaining to different offences altogether and after going through, several orders placed on record, the Court does not find any similarity with the facts of the present case. 23. Considering the active role of the applicant and the quantity of the prohibited contraband, the Court is unable to accept the arguments of the applicant that the facts of the case is isolated in so far as the applicant’s case is concerned, so as to take out the case of the applicant out of the rigour of Section37 of the NDPS Act, from the offence particularly, evidence of money transfer and Diary at the reference of the applicant, in the Diary who is referred to as “Bavaji”, the role of the applicant cannot be viewed in isolation. The provision of Section37 of the NDPS Act will apply with full force in the present case. 24. The provision of Section37 of the NDPS Act will apply with full force in the present case. 24. 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', 'Mephadrone' 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. 25. The Court has also perused the detail order passed by the concerned Sessions Court while rejecting the bail application and the Sessions Court has also assigned cogent reasons for rejecting the regular bail of the applicant. 26. In view of the aforesaid, the Court does not find any reason to interfere with the order passed by the Sessions Court. Over and above, no case is made out for the exercise of discretion in favour of the applicant for the grant of regular bail in connection with aforesaid C.R. Hence, the application deserves to and is hereby dismissed. Rule is discharged.