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Gujarat High Court · body

2023 DIGILAW 212 (GUJ)

Dennis Surendra Jota v. State of Gujarat

2023-02-01

ILESH J.VORA

body2023
ORDER : 1. By way of this bail application, the applicant – accused no. 19, is seeking his regular bail in connection with FIR being I.CR. No. 11210015200082 of 2021 registered with DCB Police Station, Surat, for the offences punishable under Sections 8(c), 22 (c) read with Section 29 of the Narcotic Drugs and Psychotropic Substance Act,1985, (herein after referred to as ‘the NDPS Act’ for short ). 2. The applicant herein, arrested on 27.11.2021. Chargesheet against the applicant is filed on 20.05.2022, which culminated into Special NDPS Case No. 3 of 2022. 3. The facts and circumstances giving rise to file present application are that, the police officials of the DCB Police Station, Surat received secrete information that the accused no. 1 Salman @ Aman Mohd. Hanif Zaveri, residents of Surat, is going in his car from Kuwada Tea Point to Surat City, for selling and transpiration of psychotropic substance. The information received on 22.09.2020 and same was noted down by the Officer and after following the procedure, the raid was conducted. The accused Salman was intercepted at the place mentioned in the information and during the proceedings, the narcotic substance mephedrone 1011.82 Gm., which is commercial in quantity found and recovered from the conscious possession of the accused no. 1 Salman. The contraband seized in the presence of panchas and at relevant time, the accused no. 1 was carrying 5 mobile phones which were also seized by the officials. During the investigation, it reveals that the accused no. 1 being a paddler, selling the narcotic substance through co-accused and huge network uncovered and accordingly, police officials recovered and seized 6 different diaries wherein, the names of the purchasers and seller with the quantity of the narcotic drugs and the financial transactions found, having been maintained by the accused no. 1. The specimen signature and hand writing of the accused no. 1 was taken for the purpose of examination of the handwriting of the diaries. The five cell phones found from the accused no. 1, were also sent for forensic science laboratory, the details of CDR have also been obtained from the different service providers and upon analysis of the CDR details and considering the evidence of the diaries, the investigating agency recorded statements of various persons who are either drug edicts or purchaser of the contraband drugs for their financial vested interest. 1, were also sent for forensic science laboratory, the details of CDR have also been obtained from the different service providers and upon analysis of the CDR details and considering the evidence of the diaries, the investigating agency recorded statements of various persons who are either drug edicts or purchaser of the contraband drugs for their financial vested interest. During the course of investigation, it reveals that, the seized contraband drugs, was to be given to co-accused for further sale in the market. In all, 19 accused on the different dates have been arrested, against whom, chargesheets came to be filed before the Special Court. So far, role of present applicant is concerned, it is alleged that, the applicant is drugs edict and was purchasing the contraband substance from the accused no. 1 for himself and to sell purpose. After his arrest, it reveals that, either he made payment for purchase in cash or used Google pay or Pay-tm through witnesses. During the investigation, the witnesses namely Rajkumar Roopchand, Rajat Nirmal Kumar, Prit Prakashbhai, Salia Musa, Nidhika Badriprasad, Shivendra Rajendrasinh and others have categorically, stated that the applicant – accused is drug edict and was selling the contraband to them as well as different persons after procuring the same from accused no. 1. It is case of the prosecution that, the applicant accused was in constant touch on different mobile phones with the accused no. 1 and conversation of the phones reveals the fact of doing business of contraband. The name of the applicant accused is also found in the diary marked ‘D1’, ‘D2’, ‘N2’ and ‘N3’, wherein, his reference was made for accounting purpose. In such circumstances, it is alleged by the prosecution that, there is sufficient evidence found against the applicant that, the contraband recovered from accused no. 1, was in the knowledge of the present applicant herein as he himself purchaser of the 50 grms for his personal use as well as for his customer and since long, he was associated with the principal accused for carrying out the illegal drug business and therefore, applicant accused is abettor and is a party to the criminal conspiracy to commit alleged offence. 4. This court has heard learned Senior Counsel Mr. J.M. Panchal, assisted by Mr. C.K. Pandya, learned advocate for and on behalf of the applicant. 5. Learned counsel Mr. 4. This court has heard learned Senior Counsel Mr. J.M. Panchal, assisted by Mr. C.K. Pandya, learned advocate for and on behalf of the applicant. 5. Learned counsel Mr. J.M. Panchal for the applicant, states that the applicant was not in a conscious possession of the contraband since it has been recovered from the accused no. 1 for which, he had no knowledge. He would further submit that, as per the case of the prosecution, he did order of purchasing 50Gms. drugs worth Rs.50,000/-. Thus, if the prosecution case accepted as it is, then also, the quantity would not fall under commercial quantity. It is in this context, he submitted that, those accused having similar nature of role, have been considered by the coordinate bench of this Court and therefore, applying the principal of parity, it is prayed that, the applicant may be enlarged on bail, as the accused Mrutyunjay @ Surat, having similar role, granted bail by this Court. 6. Learned Senior Counsel would further submit that after arrested of accused no. 1, i.e. on 22.09.2020, the applicant accused summoned so may times and have cooperated with the investigation. He would further submitted that, in earlier chargesheets, filed against the co-accused, the applicant was not shown in column no. 2, as absconder or suspected and later on, i.e. on 27.11.2021, he was apprehended. The persons having similar role are cited as witnesses and without any substantial evidence, the applicant herein falsely roped into the offence as the applicant having no any business with accused no. 1 nor he is edict or consuming the drug as alleged by the prosecution. 7. Learned Senior Counsel would further submit that, the statements relied by the prosecution, do not disclose that the applicant was directly selling the drugs to them. On the contrary, it reveals that the witnesses were in direct touch with accused no. 1 Salman and therefore, there is no reason for the witnesses to buy the drug from the applicant. It is submitted that, the witness Saliya in her first statement recorded by the police, nowhere, she has stated about the involvement of the applicant. On the contrary, it reveals that the witnesses were in direct touch with accused no. 1 Salman and therefore, there is no reason for the witnesses to buy the drug from the applicant. It is submitted that, the witness Saliya in her first statement recorded by the police, nowhere, she has stated about the involvement of the applicant. There was no bitter relationship with the witness Saliya, as she had quarrel with the applicant on 29.05.2021 and gave a threat to the applicant to involve him in the NDPS Act and because of the quarrel, the witness Saliya and her friends have given statements against the applicants to take revenge. She had also raised the objection in the bail application filed before the Sessions Court, Surat. 8. Mr. Panchal, learned Senior counsel would submit that the prosecution has seized the diaries maintained by the accused no. 1 Salman and there is a reference about the sale of drugs to the applicant. He would submit that, there is no evidence, even prima-facie in the chargesheet case papers to prove or show that the applicant had either made payment or purchased the drugs from accused no. 1. The entries of the payment made through Pay-tm, it does not belong to the mobile number of the applicant or his E-mail. He would further submit that, the entries are made in the name of Danish Lakhdawala or Hanil Denny Nirban. The applicant is neither Danish Lakhdawala or Hanil Denny. Thus, he would urged that because of the similarity in the first name of the applicant, the prosecution alleged that, the applicant accused made payment to accused no.1 and the name reflected in the diaries is not the applicant but it makes reference to the other persons. Even in the whats-app chat evidence, there is no communication or conversion found with respect to purchase or consumption of drugs. 9. In the aforesaid contentions, the learned Senior counsel would submit that there is no evidence on record to show that the applicant in any manner, was involved in the selling or transporting of the contraband seized substance and therefore, the applicant neither involved in criminal conspiracy nor has abated the offence knowingly or unknowingly. 9. In the aforesaid contentions, the learned Senior counsel would submit that there is no evidence on record to show that the applicant in any manner, was involved in the selling or transporting of the contraband seized substance and therefore, the applicant neither involved in criminal conspiracy nor has abated the offence knowingly or unknowingly. In such circumstances, he urged that after filing the chargesheet, the further custody of the applicant is not necessary and trial will not conclude in near future and therefore, when applicant does not have any part record and is readily available at the time of the trial, keeping him behind the bar, would not yield any result. Thus, he prays that the discretion may kindly be exercised in favour of the applicant and he may be enlarged on bail imposing appropriate conditions. 10. Mr. Dhawan Jayswal, learned APP, vehemently opposed the bail application and contended that, there is a reasonable ground to believe that, the applicant has committed the offence, as the evidence collected during the course of investigation, like, personal diaries maintained by accused no. 1, the CDR details, the version of the witnesses, whats-app chat conversation, which indicative of facts that the applicant being a drug edict, is involved in the selling of the contraband and was part of well organized syndicate dealing with the narcotics. He states that, the quantity of mephadrone recovered in the instant case is commercial quantity and considering the evidence collected, it clearly established that, the applicant is a party to criminal conspiracy to commit an offence and is liable with the principal accused for the punishment provided for the offence. Thus, the embargo of Section 37 (1)(b)(ii) of the NDPS Act is applicable to the facts of the present case. Thus, there are no any reasonable grounds for believing that, the applicant accused is not guilty of an offence. He would further submit that, where the prima-facie case is made out against the applicant and offence is grave and affecting the society at large, no case is made out for exercising judicial discretion in favour of the applicant. Lastly, he would submit that the contentions raised by the senior counsel for the applicant are to be tried by the trial Court and at this stage, it cannot be appreciated. 11. Heard at length and perused the material placed on record in the form of chargesheet. 12. Lastly, he would submit that the contentions raised by the senior counsel for the applicant are to be tried by the trial Court and at this stage, it cannot be appreciated. 11. Heard at length and perused the material placed on record in the form of chargesheet. 12. It is the contention of the applicant that, the co-accused having similar kind of role, is being considered by the Co-ordinate Bench of this Court. Before dealing with the issue of parity, let us examine the settled legal principles in respect of parity. In the case of Ramesh Bhavan Rathod Vs. Vishanbhai Hirabhai Makwana (MANU/SC/0298/2021), the Apex Court while interpreting the expression ‘parity’, held that, while granting bail, court must focus upon role of the accused. Merely observing that another accused was granted bail was armed with similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. It is further held by the Apex Court that in deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law. 13. In light of the principle of law and considering the peculiar facts of the case, role of the accused and the present applicant are totally distinct and different. So far role of the applicant is concerned, it is alleged that the applicant is in trading of drugs and have direct connection with the accused No.1. Thus, the role of the accused No.16 – Mrityunjay is not similar to the role of the present applicant. Ld. APP on this issue states that, the State has decided to challenge the order of the co-accused. Considering the role attributed to the applicant herein and the evidence in support of the charge, the benefit of principle of parity cannot be extended to the present applicant and therefore, the contention with this regard is not accepted. 14. Ld. APP on this issue states that, the State has decided to challenge the order of the co-accused. Considering the role attributed to the applicant herein and the evidence in support of the charge, the benefit of principle of parity cannot be extended to the present applicant and therefore, the contention with this regard is not accepted. 14. It is submission of the learned Senior Counsel that, the statement of witnesses and other evidence like diary, CDR report analysis, whats app chats, would not throw any light on the issue that, the applicant is drug addict and was involved in the criminal conspiracy hatched by the principal accused No.1 and has abetted the offence knowingly or unknowingly. In this aspect, on careful examination of the statement of the witnesses, the reference of the applicant made in the diary and CDR analysis would prima-facie shows the involvement of the applicant in the alleged offence. Thus, it is not the case to the limited aspect that the applicant accused placed purchase order of 50 gms. mephedrone, but it went to the extent that the applicant was closely connected to the wide network of transporting and selling seized narcotic substance. In such circumstances, the court while dealing with the bail application should only look at the prima-facie material and should not go into merits of the case by appreciation of the evidence. It would be trial Court to consider and appreciate the evidence. The court cannot comment upon the nature of evidence at the stage of granting bail as any expression on opinion would affect the trial. Thus, the contention with regard to evidence collected by I.O. prima-facie found the involvement of the applicant in the offence and therefore, the conduct and truthfulness of the witnesses or similarity in the name of diary cannot be appreciated at this stage. 15. In the facts of the present case, the applicant is charged with the offence under Sections 8(c), 22(c) and 29 of the NDPS Act. The quantity recovered from accused No.1 is of commercial quantity. 15. In the facts of the present case, the applicant is charged with the offence under Sections 8(c), 22(c) and 29 of the NDPS Act. The quantity recovered from accused No.1 is of commercial quantity. Section 29 of the Act provides that whoever abets or is a party to criminal conspiracy to commit an offence punishable under the NDPS Act, shall whether such offence be or be not committed in consequences of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of IPC be punishable with the punishment provided for the offence. It is settled law that the abetment may take place either by the instigation or conspiracy or by intentional act. The formation of conspiracy can be inferred from circumstantial evidence or by conduct an act of parties. In the facts of the present case, the continue association of the applicant with the principal accused No.1, the analysis of CDR, seizure of diaries where the reference of the applicant found, whats app chats and version of the witnesses clearly prima-facie establish the elements of agreement to do an illegal act and it was in the knowledge of the applicant that the accused No.1 was having possession of seized contraband substance and therefore, this Court is not agree with the contention raised by learned Senior counsel for the applicant that there is no evidence on record which could suggest the existence of conspiracy for invocation of Section 29 of the Act. It is to be noted that the Apex Court time and again in its various judgments held that liberal approach in the matter of bail in NDPS Act is uncalled for as it is serious offence affecting the society at large. 16. For the foregoing reasons and having regard to the peculiar facts and circumstances of the case, this Court is of opinion that the embargo of Section 37 of the Act is applicable to the case of the applicant and therefore, there is nothing on record at this stage from which it could be inferred that the applicant is not guilty of the offence in question. 17. In view of the aforesaid, without further discussions on merits of the case, this Court finds that the present case is not fit case where judicial discretion to admit the applicant on bail required to be exercised. 17. In view of the aforesaid, without further discussions on merits of the case, this Court finds that the present case is not fit case where judicial discretion to admit the applicant on bail required to be exercised. Thus, petition is without merit, deserves dismissal and is accordingly dismissed. Needless to say that the observations made hereinabove, are only confined for the adjudication of instant application and shall have no bearing whatsoever on the merits of the case.