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2024 DIGILAW 532 (GUJ)

Tunna Kabiraj Swai v. State of Gujarat

2024-03-14

DIVYESH A.JOSHI

body2024
JUDGMENT : DIVYESH A. JOSHI, J. 1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State. 2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No. 11214021210985 of 2021 registered with the Kosamba Police Station, Surat Rural of the offence punishable under Sections 8(c), 20(B), ii (C) and 29 of the NDPS Act. 3. The case of the prosecution, in brief, may be summarized as under: 3.1 The complainant Shri Jagdishbhai Kamrajbhai, Head Constable, Buckle No. 587, S.O.G. Branch, Kosamba Police Station, Surat has filed the present complaint stating that on 17.08.2021, while he was on patrolling duty along with head constable Rohitbhai Babubhai, Buck No. 280, at that time, at around 4:30, he received a tip-off that in the Shop No. G-6 at Block No. 472 of Silver Textile Hub, G.I.D.C. situated in the outskirt of village Pipodra, one Tunna Sawai, i.e. present applicant and Dipak Pushti along with their associates, have illegally and without any pass and permit, stored the contraband substance Ganja which information was then passed over to the concerned superior officer at around 5:40 on mobile, whereupon, the complainant was asked to come at Kim cross-road after inspecting the place under information. Accordingly, after looking over the said place, the complainant along with head constable Rohitbhai Babubhai reached at Kim cross-road at around 6:20 whereas the other police staff had reached their at Kim cross-road at around 7:20. Thereafter, the said information was reduced into writing and handed over to the superior police officer present there. After that, as the raid had to be carried out at such premises, Panchas were also called for. 3.2 Thereafter, a written report about the said secret information was prepared and forwarded to the Superintendent of Police, Surat. Then, after following all necessary procedure of raid and drawing panchnamas, they left for the place under information and reached there at around 10:30. On reaching the place, five persons were found to be there inside the shop who were asked to come out from the shop by the police in the presence of the Panchas. Then, after following all necessary procedure of raid and drawing panchnamas, they left for the place under information and reached there at around 10:30. On reaching the place, five persons were found to be there inside the shop who were asked to come out from the shop by the police in the presence of the Panchas. After that, the superior officer introduced himself as well as the other police staff and the Panchas to the said persons, and upon asking their identities, they identified themselves as (i) Tunna Kabiraj Sawai (ii) Dipak Trinath Pushti (iii) Satishsingh @ Shiva Rambirsingh Gurjar (iv) Surendra @ Vijay Kishandev Prasad and (v) Navdhan @ Navin Khaliya Pradhan. 3.3 Thereafter, all the accused persons were acquainted about the secret information that they have illegally stored the psychotropic substance Ganja in the shop owned and occupied by them. After that, requisite procedure under Sections 42 and 50 of the NDPS Act was also followed and when entered into the shop keeping the accused persons with them, 16 filled plastic sacks were found to be lying there in a top of each condition. When checked all the sacks one by one, some suspicious leafy substance having pungent smell was found from the same. Personal search of all the accused persons were also made, however, nothing objectionable was found upon their personal search. 3.4 Thereafter, samples were taken and the officers of the FSL were also called for and upon testing with the drug detection kit, the samples tested positive for Ganja. Thereafter, all the accused persons also confessed about the other cache of contraband substance kept by them at the G.I.D.C. Navapara and upon such admission being made, police went to the said place and recovered 21 more plastic sacks filled with contraband substance Ganja. Hence, the present FIR. 4. Learned advocate Mr. H.D. Rajput appearing for the applicant has submitted that the applicant-accused is an innocent young man, aged about 28 years languishing in jail since 18.08.2021. It is further submitted that the investigation has already been completed and charge-sheet has also been filed. It is moreso submitted that the present applicant-accused does not have any nexus with the case on hand and he has been wrongly booked in the present felony on the basis of the statement of the co-accused. Learned advocate Mr. It is further submitted that the investigation has already been completed and charge-sheet has also been filed. It is moreso submitted that the present applicant-accused does not have any nexus with the case on hand and he has been wrongly booked in the present felony on the basis of the statement of the co-accused. Learned advocate Mr. Rajput further submits that the place from where the contraband substance was found belongs to the main accused and not the present applicant-accused. Nothing has been recovered or discovered at the instance of the present applicant-accused. He further submits that the applicant-accused is a young man having no criminal past antecedents of whatever nature. Learned advocate Mr. Rajput would further submit that the other co-accused, namely, Sagar Madhav Pradhan has already been released on bail by this very Court vide order dated 12.12.2023 passed in Criminal Misc. Application No. 19847 of 2023 and, therefore, on the ground of parity also, the applicant-accused is entitled to be released on bail. He would also submit that the applicant-accused has been languishing in jail since last two and half years, and as such, considering the period of incarceration already undergone by the applicantaccused, he may be bailed out on any suitable terms and conditions. To fortify his submissions, learned advocate Mr. Rajput relies upon the following case laws: (i) Jadavbhai Rayabhai Meniya T. Koli vs. State of Gujarat, Special Leave to Appeal (Cri.) No. 3397 of 2023, dated 10.05.2023 (ii) Ravi Prakash vs. State of Odisha, Special Leave to Appeal (Cri.) No. 4169 of 2023, dated 13.07.2023 (iii) Shince Babu vs. State of Kerala and Another, Special Leave to Appeal (Cri.) No. 16642 of 2023, dated 21.02.2024 5. In such circumstances, referred to above, learned advocate Mr. Rajput prays that there being merit in his application, the same be allowed and the applicant-accused be released on bail. 6. On the other hand, this application has been vehemently opposed by the learned APP Mr. L.B. Dabhi appearing on behalf of the respondent-State looking to the nature and gravity of the offence. He has submitted that on the basis of the specific inputs received by the members of the raiding party, they had carried out a search at the given address from where a commercial quantity of contraband substance was recovered from 16 different plastic sacks. He has submitted that on the basis of the specific inputs received by the members of the raiding party, they had carried out a search at the given address from where a commercial quantity of contraband substance was recovered from 16 different plastic sacks. Thereafter, upon confession being made by the accused persons, another 21 plastic bags containing contraband substance were recovered from some other place shown by the accused persons themselves which is indicative of the fact that all the accused had sufficient knowledge about the places where the narcotic substance were stored or rather it can be said that hidden by them for selling purposes. It is moreso submitted that the applicant-accused was also very much available in the shop at the time of the raid and was caught red-handed along with the narcotic substance. In short, the narcotic substance Ganja was found from the conscious possession of the applicant-accused and that too in a commercial quantity, i.e. 622.620 kg and, therefore, rigors of Section 37 of the NDPS Act would also come into play. Therefore, considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused. 7. I have heard the learned counsel for the applicant, learned APP for the State and perused the records of this case. 8. 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 [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. (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. (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.” 9. 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. (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. 10. 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 439 of the Code. 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. 11. The contours of Section 37 of the Act have been analysed by the Hon’ble Supreme Court in the case of Union of India vs. 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: “6. 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: “6. 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) 7. 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 vs. Chief Secretary, Union Territory of Goa, (1990) 1 SCC 95 : 1990 SCC (Cri) 65, as under: (SCC p. 104, Para 24) “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.” 12. 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. 13. 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. 14. 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 vs. 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. 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: “7. 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 reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable.” 15. 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. 16. The Supreme Court in the case of Union of India vs. 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: “20. 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. 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.” 17. 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. 18. 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. However, the facts and circumstances of the decisions relied upon by the learned advocate for the applicant were distinct and different to the case on hand. Here, in the present case, the applicant is charged for commercial quantity weighing 2622.620 kg Ganja and, therefore, his bail application needs to be decided as per Section 37 of the Act. However, the facts and circumstances of the decisions relied upon by the learned advocate for the applicant were distinct and different to the case on hand. Here, in the present case, the applicant is charged for commercial quantity weighing 2622.620 kg Ganja and, therefore, his bail application needs to be decided as per Section 37 of the Act. Total five persons were caught red-handed by the police from the shop alleged to have been owned and occupied by them along with 16 different plastic sacks containing the contraband Ganja weighing 225.850 kg. Thereafter, they themselves confessed about the other cache of Ganja stored at some different place weighing 396.77 kg lying in 21 different plastic bags which was also seized by the investigator. Thus, the total quantity of Ganja recovered by the police is 622.620 which is much more than commercial quantity. All requisite procedures had also been followed as per the law and, thereafter, the accused persons came to be arrested. Moreover, the present applicant-accused originally belongs to Ganjam, Orissa and, therefore, while deciding the bail application, the Court has to keep in mind the aspect of likelihood of the accused being fled away from the trial. Simultaneously, the court has to also 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. 19. Proceeding to the application of Section 37 in the instant matter, the Public Prosecutor has been heard who has vehemently opposed the bail application 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. 20. 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. 20. So far as the ground of parity is concerned, I would like to refer to and rely upon a very recent decision of the Hon’ble Apex Court, in the case of Tarun Kumar vs. Assistant Director, Directorate of Enforcement, Special Leave Petition Crl.) No. 9431 of 2023, wherein, Justice Bela M. Trivedi, speaking for the Bench, has observed in Paras-18 as under: “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. 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.” 21. 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. 22. Accordingly, the instant bail application stands rejected. Rule is discharged.