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2022 DIGILAW 1060 (GUJ)

Fatmaben W/o Imranbhai Pathan v. State Of Gujarat

2022-09-23

NIRZAR S.DESAI

body2022
ORDER : 1. This successive application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with the FIR registered at C.R.No. I-11208044213925 of 2021 with Pradyuman Nagar Police Station, Rajkot on 17.8.2021 for the offence punishable under Sections 8[C] and 20(b)(2)(a) of the NDPS Act. 2. Heard Mr.K.S.Chandrani, learned advocate for the applicant and Ms.Maithili Mehta, learned Additional Public Prosecutor for the respondent State. 3. It is the case of the prosecution that on 17.8.2021 during patrolling, the patrolling party found a lady carrying a black colour plastic bag started running upon seeing the police party, and therefore, she was cordoned and search was conducted as her behaviour was suspicious and during the search, contraband was found from the lady, who happens to be the applicant herein. 4. The contraband found from the applicant was 200 grams of ganja and 11.29 grams of other contraband which upon laboratory examination was found to be a mixture of alprazolam, caffeine, paracetamol and chlorzoxazone. 4.1 Earlier, after filing of the charge sheet, the applicant has preferred bail application being Criminal Misc. Application No.21458 of 2021. However, on 5.5.2021 the same was withdrawn by the advocate for the applicant as during the pendency of the aforesaid application, which was filed after charge sheet, the Forensic Science Laboratory report had come, and therefore, the applicant wanted to prefer fresh bail application before the Sessions Court and accordingly permission to withdraw the application was granted to the applicant. 4.2 Thereafter, upon receipt of the report from the Forensic Science Laboratory, the applicant preferred fresh application for bail being Criminal Misc. Application No.1909 of 2022 before the court of learned Sessions Judge at Rajkot and ultimately vide order dated 28.7.2022 passed below Exh.6 in Criminal Misc. Application No.1909 of 2022, learned Judge, Special Court (NDPS) and 12th Additional Sessions Judge, Rajkot rejected the bail application preferred by the applicant and that is how the applicant has preferred the present successive bail application. 5. Mr.Chandrani, learned advocate for the applicant, made the following submissions: [a] The contraband found was of intermediate quantity and hence the applicant is required to be enlarged on bail. [b] The contraband found from the applicant is 200 grams ganja and 11.29 grams mixture of alprazolam, caffeine, paracetamol and chlorzoxazone, and therefore, the applicant is required to be enlarged on bail. [b] The contraband found from the applicant is 200 grams ganja and 11.29 grams mixture of alprazolam, caffeine, paracetamol and chlorzoxazone, and therefore, the applicant is required to be enlarged on bail. [c] The applicant is a lady accused having two year old child, who is behind the bars since last more than one year, and therefore, considering the above fact the applicant is required to be enlarged on bail on sympathetic ground. [d] In support of the above submissions, Mr.Chandrani, learned advocate for the applicant, relied on as many as 8 judgments. However, ultimately he emphasized upon two decisions of the Hon’ble Apex Court [1] in the case of Mohammad Salman Hanif Shaikh vs. the State of Gujarat in Special Leave to Appeal (Cri.) No.5530 of 2022 vide order dated 22.8.2022 and [2] Akhtari Bi vs. State of Madhya Pradesh reported in 2001(4) SCC 355 . Learned advocate for the applicant initially relied upon six decisions of this Court as well as Hon’ble Supreme Court. However, thereafter during the course of arguments, learned advocate Mr.Chandrani restricted his submissions by relying upon the above two judgments only. Though learned advocate Mr.Chandrani has tendered the following decision, the same are not considered by this Court in view of the statement made by learned advocate Mr.Chandrani that he is relying on the above two decisions only. [1] Laxmiben Solanki vs. State of Gujarat reported in 2008(4) GLR 2894 . [2] Birbal Prasad @Birbal Prasad Shah vs. State of Bihar reported in 2018(11) SCC 488 . [3] Ramshankargiri @Muchhad Balvangiri vs. State of Gujarat in Criminal Misc. Application No.8326 of 2011 vide order dated 2.8.2011. [4] Mahavirkumar Mohansingh Pegaria vs. State of Gujarat in Criminal Misc. Application No.21757 of 2014 vide order dated 5.1.2015. [5] Criminal Misc. Application No.21475 of 2019 in Criminal Misc. Application No.21475 of 2019 vide order dated 16.1.2020. [6] Yasminben Rafikbhai Jambudiya vs. State of Gujarat in Criminal Misc. Application No.894 of 2020 vide order dated 13.3.2020. 6. Ms.Maithili Mehta, learned Additional Public Prosecutor, vehemently opposed the present application by submitting that even after laboratory examination, the substance found from the applicant is found to be contraband of intermediate quantity. She further submitted that the present applicant is a drug peddler and earlier also she was arrested for an offence punishable under NDPA Act only. 6. Ms.Maithili Mehta, learned Additional Public Prosecutor, vehemently opposed the present application by submitting that even after laboratory examination, the substance found from the applicant is found to be contraband of intermediate quantity. She further submitted that the present applicant is a drug peddler and earlier also she was arrested for an offence punishable under NDPA Act only. Ms.Mehta, learned Additional Public Prosecutor, further submitted that the present applicant being a drug peddler she is now using her child of 2 years to get enlarged on bail, however, considering her past antecedent, the applicant may not be considered for bail. Ms.Mehta, learned Additional Public Prosecutor further submitted that the menace of drugs is being now operated by anti national elements and this would ruin the youth of the nation, and if on the ground that the present applicant is a lady having a child of 2 years, any lenient view of taken, considering the antecedent of the applicant, it can safely be presumed that there are all likelihood that she will again indulge into the activity of drug trafficking, which may adversely affect the youth of the city. Ms.Mehta, learned Additional Public Prosecutor prays for dismissal of the present application. 7. I have considered the submissions made by learned advocate for the applicant and learned Additional Public Prosecutor for State respondent. I have also perused the record and considered the judgments cited by learned advocate for the applicant. This court has also considered the fact that the applicant earlier also was arrested for the offence punishable under NDPS Act. Further, she was found having possession of contraband of intermediate quantity and the decision relied upon by learned advocate applicant in the case of Mohammad Salman Hanif Shaikh (supra) the contraband was cough syrup and thought it was commercial quantity, the only consideration weighed with the Hon’ble Supreme Court was that the applicant was in jail since last 2 years. Further, learned advocate Mr.Chandrani could not point out from the aforesaid judgment that the Hon’ble Supreme Court granted bail to the applicant of that matter despite there being antecedents of office of similar nature. Further, learned advocate Mr.Chandrani could not point out from the aforesaid judgment that the Hon’ble Supreme Court granted bail to the applicant of that matter despite there being antecedents of office of similar nature. 7.1 I have also considered the judgment cited by learned advocate for the applicant in the case of Akhtari Bi (supra), more particularly para 7 of the decision emphasis has been placed by learned advocate for the applicant, wherein the Hon’ble Apex Court held that considering the circumstances and age of the applicant, who was an old aged lady having a child, she was granted bail by the Hon’ble Apex Court. In the instant case, the applicant is 37 years and having past incidents and earlier also she was arrested for a similar offence considering the fact that the present applicant prima facie seems to be a drug trafficker, and therefore, for putting brakes on the menace of drug trafficking what is required to be done is to brake the chain of supply. The present applicant being prima facie seems to be drug peddler, and therefore, if she is enlarged on bail, there is all likelihood that she would once again indulge into such type of offence, and therefore, she is not required to be enlarged on bail. 7.2 As far as the submission of learned advocate for the applicant that the present applicant is a lady having child of 2 years, her case is required to be considered sympathetically is concerned, this Court is of the view that earlier when the applicant was released on bail and despite having released on bail for an offence of similar nature, she has been caught with having conscious possession of contraband of intermediate quantity, she does not deserve any such sympathy, and therefore, the present application is required to be dismissed and the same is accordingly dismissed. Rule discharged.