Imtiyaz @ Lala Firoz Malek vs State Of Gujarat

Divyesh A. Joshi, J

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.11210046201139/2020 registered with the Puna Police Station for the offence punishable under Sections 8(C), 22(C) and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985.

Learned advocate submitted that the so-called incident has taken place on 05.09.2020 and on the very same day i.e. on 05.09.2020, FIR has been lodged and the applicant has been arrested on 05.09.2023 and since then, he is in judicial custody. Learned advocate submitted that now the investigation is completed and after completion of the investigation, the present application has been preferred. Learned advocate submitted that the applicant is not found in possession of the narcotic substance and the applicant has been arraigned as accused only on the basis of the statement of the co-accused, however, there is no recovery from the present applicant – accused, which suggests his false implication. Learned advocate submitted that since last more than two years, the applicant is in jail and trial will take its own time to conclude and, hence, the present application may be allowed.

On the other hand, learned APP for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the role of the present applicant is clearly spelt-out from the body of the complaint. Learned APP submitted that in the present offence, MD Drgu of 100 Grams has been found from the possession of the applicant – accused and on the spot, the applicant has been arrested by the members of the raiding party. Learned APP submitted that the narcotic substance seized from the applicant – accused is commercial quantity and, hence, rigors of Section 37 of the NDPS Act would come into play. Learned APP submitted that in past also, the applicant was indulged into in similar type of offence. Learned APP submitted that the from the chargesheet papers, the involvement of the present applicant – accused is clearly established and, hence, the present bail application may not be entering.

It is required to be noted that it is the settled position of the law that, at this juncture, detailed discussion of evidence and canvassing of the allegations contained in FIR as well as affidavit of the concerned Investigating Officer or the merits of the case as well, is not necessary and should be avoided.

I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. I have also considered the reasoning given by the concerned court while rejecting the bail application and the affidavit filed by the IO opposing the said application. It is found out from the record available on record that the applicant is involved in a serious offence of NDPS and in the present case, MD Drug of 100 Gram was recovered at the time of raid, which is commercial quantity. It is found out from the evidence available during the course of investigation that the applicant is involved in the aforesaid offence and specific role has been attributed to him in the compilation of the chargesheet and during the course of investigation, the concerned Investigating Officer has collected CDR, which suggests that the applicant was in constant touch with other co-accused and the fact that earlier also, the applicant is involved in similar type of offence.

At this stage, I would like to put reliance upon the decision of the Hon’ble Apex Court in the case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI Through its Director, reported in (2007) 1 SCC 70, wherein, the Apex Court has laid down that, while considering an application for regular bail, the Courts shall have to take into consideration, the following aspects,

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the court in support of the charge;

The Hon’ble Apex Court, further, observed at Paragraphs-10 and 16 thus;

“10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted.

We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.”

Over and above that, strong apprehension has been shown by prosecution that if the applicant is released on bail then, there is possibility of tampering with the evidence and fleeing away from the trial. Therefore considering the nature of offence, role attributed to the applicant and played by him, I am of the opinion that the present application deserves to be rejected.

Accordingly, the present application is rejected.

Needless to say that observations made herein above are confined to decision of the present bail application.