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Gujarat High Court · body

2022 DIGILAW 1183 (GUJ)

Swaroopsinh Hirsinh Rajput v. State of Gujarat

2022-10-03

NIRZAR S.DESAI

body2022
ORDER : 1. By way of this application, the applicant has prayed for his release on regular bail in connection with FIR No.11210047202261 of 2020 registered at Udhna Police Station, Surat, which was registered for offences under Sections 8 (c), 18(c) and 29 of the NDPS Act. 2.1 In the first session, when the matter was called out, learned advocate Mr. Daiya requested for pass over on the ground that some other advocate is appearing as counsel on his behalf and hence the matter was kept back. In the second half, when the matter was called out, learned advocate Mr. Daiya remained absent and, therefore, matter was kept aside and the Court waited for learned advocate Mr. Daiya as he was called. Thereafter, the Court requested learned advocate Mr. Daiya, who remained present on being called, to proceed with the matter considering the fact that this application is preferred on 13.06.2022, vide order dated 04.07.2022 Rule has been issued and matter was kept on 12.09.2022 and on 19.09.2022 request had come on behalf of Mr. Daiya to adjourn the matter and hence the matter was adjourned to today. 2.2 Considering the above-mentioned facts as well as considering the fact that this is bail application the Court did not grant any further time to learned advocate Mr. Daiya and hence Mr. Daiya proceeded to make submissions. 3.1 Learned advocate Mr. Daiya submitted that though as per the impugned FIR, 4.797 Kg contraband opium was recovered from the present applicant, upon testing by Forensic Science Laboratory, in all the three samples, the concentration of ‘ anhydrous morphine’ / 100 gm was 0.41% in respect of Sample-A, 0.92% in respect of Sample-B and 14.55% in respect of Sample-C was found and, therefore, according to learned advocate Mr.Daiya even if the contraband recovered from residence was weighing 4.797 kg, the actual concentration of contraband ‘ anhydrous morphine’ would only be 239.025 gm. 3.2 Learned advocate Mr. Daiya, upon inquiry from the Court, submitted that this figure about concentrated quantity of ‘anhydrous morphine’ has been arrived at by the calculation himself and this is not part of any record. By making aforesaid self-calculation, learned advocate Mr. Daiya tried to submit that quantity of contraband opium would not commercial quantity but would be a meager 239.2716 gm and on the basis of that he prayed to release the applicant on bail. By making aforesaid self-calculation, learned advocate Mr. Daiya tried to submit that quantity of contraband opium would not commercial quantity but would be a meager 239.2716 gm and on the basis of that he prayed to release the applicant on bail. In support of his case, learned advocate Mr. Daiya relied upon an order of the Honourable Supreme Court in case of Mohammad Salman Hanif Shaikh vs. The State of Gujarat passed in Special Leave to Appeal (Cri.) No.5530 of 2022 wherein the Honourable Supreme Court, in case of 358 bottles of cough syrup containing codein was pleased to enlarge the accused – applicant vide order dated 22.08.2022. 3.4 Learned advocate Mr. Daiya further relied upon the laboratory test report and submitted that in the result analysis of the sample which is also stated that there were some particles of poppy straw were found. By making aforesaid submissions, learned advocate Mr. Daiya tried to submit that in respect of poppy straw, small quantity would be of 1 kg whereas commercial quantity is 50 kg. Once again, by relying upon his own calculation of the concentrated contraband anhydrous morphine, he submitted that the quantity recovered is small quantity. 3.5 Except aforesaid submissions, no other submissions were made, nor any other authority, decision or judgment of Honourable Supreme Court he relied upon. 4.1 Learned Additional Public Prosecutor Mr. Manan Mehta vehemently opposed the bail application and submitted that learned advocate for the applicant is trying to mislead the Court by pointing out the calculation made by him which is without any basis and does not find any place on record. He further submitted that when the contraband recovered was opium and as per laboratory test also the said substance was opium only, merely by trying to mislead the Court by saying that it is the concentrated anhydrous morphine, percentage of concentrated anhydrous morphine, which is required to be considered at the time of considering whether the volume of contraband was of commercial quantity or small quantity, the attempt on the part learned advocate for the applicant is only to mislead the Court and, therefore, this Court may not consider the aforesaid submission. 4.2 Learned Additional Public Prosecutor Mr. 4.2 Learned Additional Public Prosecutor Mr. Manan Mehta pointed out that the Act provides that if any quantity more than 2.5 kg opium is recovered, the same is required to be considered as commercial quantity as provided by the Act itself. In the instant case, the quantity of opium recovered from the residence of the present applicant indicates that present applicant was in conscious possession of commercial quantity of contraband opium which is 4.797 kg and, therefore, case of the present applicant is required to be considered by taking into consideration of rigors of Section 37 of the NDPS Act. 4.3 Learned Additional Public Prosecutor Mr. Manan Mehta further submitted that the decision of the Honourable Supreme Court in case of Mohammad Salman Hanif Shaikh vs. The State of Gujarat (supra) as relied upon by applicant will not help the present applicant for the reason that the only ground weighed with the Honourable Supreme Court was that the applicant was in custody for about two years and, therefore, the aforesaid order does not say anything about whether total weight of opium is required to be considered at the time of considering bail application or concentrated value of commercial substance in that contraband is required to be considered. 4.4 By making aforesaid submissions, learned Additional Public Prosecutor prayed for dismissal of present application. 5.1 I have heard learned advocates for the respective parties and I have also considered the submissions made by the parties and perused the records and considered the decision of the Honourable Supreme Court in the case of Mohammad Salman Hanif Shaikh vs. The State of Gujarat (supra) dated 22.08.2022. 5.2 The record reveals that the contraband opium weighing 4.797 kg was recovered from the residence of the present applicant which would indicate that the present applicant was having conscious possession of the commercial quantity of contraband opium. The quantity recovered from the present applicant was almost double than the commercial quantity prescribed under the Act. 5.3 Further, considering the fact that the contraband recovered from the present applicant is commercial quantity, the same is required to be governed by rigors of Section 37 of the NDPS Act, which reads as under : “37. Offences to be cognizable and non-bailable. 5.3 Further, considering the fact that the contraband recovered from the present applicant is commercial quantity, the same is required to be governed by rigors of Section 37 of the NDPS Act, which reads as under : “37. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1972 ( 2 of 1974) – (a) every offence punishable under this Act shall be cognizable; - (b) no person accsued of an offence punishable for [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 opposed 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.]” 5.4 Language of Section 37 would make it crystal clear that unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail, he should not be enlarged on bail. In the instant case, when such large quantity of that too double than the prescribed in the Act contraband has been recovered from the applicant’s own residence, I do not see any justifiable and satisfactory ground to grant bail to the present applicant. 5.5 Further, learned advocate for the applicant deviced an absolutely innovative mathematical concept by giving effective weight of the contraband by calculating it on the basis of concentrated weight of substance in the opium, in absence of there being any material on record to indicate that the concentrated substance would fall within the small quantity the same cannot be considered merely because by applying some mathematical formula the applicant has arrived at the same quantity. Further, in the bail application, except for statement that the ‘substance found from the sample is 0.41%, .92% and 14.55% and, therefore, total muddamal is 4797 gm, the effective drug would only 239.2716 gm is without any basis. 5.6 Further, the decision of the Honourable Supreme Court dated 22.08.2022 when perused by this Court, I have found that the Honourable Supreme Court had granted bail to the applicant of that application only on the ground that the said applicant was in custody since two years and trial would take some time. 6. Considering the fact that the quantity of contraband recovered from the present applicant was commercial quantity and the same was found from the conscious possession of the present applicant, as the contraband was recovered from the residence of the applicant, considering the conscious possession of the applicant as well as rigors of Section 37 of the NDPS Act, present application is required to be dismissed and the same is dismissed as I do not see any reason to exercise powers under Section 439 of the Code of Criminal Procedure, 1973. 7. Rule is discharged. No order as to costs. Direct service is permitted.