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CR.MA/15030/2007 1/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 15030 of 2007
In
CRIMINAL
APPEAL No. 1371 of 2007
=========================================================
ALIMOHMAD
SULEMANBHAI SUMRA @ KHAFI - Applicant
Versus
STATE
OF GUJARAT & 1 - Respondents
=========================================================
Appearance
:
MR
PREMAL S RACHH for
the Applicant.
Mr. A.J.Desai, Addl. PUBLIC PROSECUTOR for
Respondent no.1.
MR PR ABICHANDANI, Additional Senior Standing
Counsel for Respondent
no.2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.P.DHOLAKIA
and
HONOURABLE
MR.JUSTICE DN PATEL
Date : 30/07/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.N.PATEL)
1. The
present application has been preferred under section 389 of the Code
of Criminal Procedure for suspension of sentence awarded by the
learned Additional Sessions Judge, Fast Track Court No. 6, Ahmedabad
vide judgment and order dated 26th September, 2007 in Sessions case
no. 30 of 2001, whereby the present applicant has been convicted and
sentenced to undergo rigorous imprisonment for 12 years and pay a
fine of Rs. 1 lac, in default, to undergo further imprisonment of
six months, for the offences punishable under Sections 23 and 29 of
NDPS Act.
2. Having
heard the learned advocates for both the sides and looking to the
evidence on record, it is found that :
(i) Looking
to exh. 27 which is an intelligence report dated 8th May, 1995, an
intelligence was received by the officers of the Directorate of
Revenue Intelligence wherein the present applicant’s name and role
played by him, in committing offences is reflected.
(ii) It
appears that in pursuance of the aforesaid intelligence dated 8th
May, 1995, a huge quantity of approximately 5325 kgs. of
psychotropic substance worth approximately Rs. 5,22,53,000/- (of the
year 1995) was seized. These contraband goods were transported
through two trucks. Thus, huge quantity of psychotropic substance was
found and initially 10 accused persons were tried as others were
absconding and Sessions cases bearing Sessions Case Nos. 234 of
1994, 72 of 1995, 297 of 1995 and 196 of 1996 were tried against
those ten accused, which culminated into conviction. Thereafter,
Criminal Appeal Nos. 610 of 1998, 624 of 1998, 634 of 1998, 664 of
1998 and 692 of 1998 were preferred before this Court which were
dismissed by this Court vide judgment and order dated 20th February,
2003.
(iii) Against
this judgment of dismissal of Criminal Appeals, by this Court,
Special Leave Petitions (Criminal) were preferred and were dismissed
by the Hon’ble Apex Court. Thus, arising out of the same
intelligence, which is at exh. 27, charge-sheet was filed. The
present applicant was not available for investigation. Those 10
accused persons were tried and convicted by the trial court. The
conviction and sentence was upheld by this Court as well as by the
Hon’ble Supreme Court.
(iv)
It also appears that on more than one occasion, summonses were issued
under section 67 of the NDPS Act to the wife of the present applicant
dated 24th May, 1994, 30th May, 1994, 6th June, 1994 and 17th June,
1994, but the present applicant was not available to the officers of
Directorate of Intelligence from his residence or from his place of
business. Thus, prima facie, he was absconding and therefore,
subsequent charge-sheet was filed upon his arrest and Sessions case
no. 30 of 2001 was instituted against the present applicant.
(v)
Looking to depositions of prosecution witnesses, in no uncertain
terms and in no unequivocal terms, they have narrated the role
played by the present applicant. Looking to these evidences, the
applicant has played a pivotal role in commissioning of the offence
as alleged by the prosecution. As this a bail application stage, this
Court is not much analysing the evidence. Suffice it to say that :
(a) the
applicant’s name is reflected from the very beginning in the
intelligence report (exh. 27).
(b)
As per intelligence report, huge quantity of psychotropic
substance weighing about 5325 kgs. has been found worth
approximately Rs. 5,22,53000/-.
(c) Evidence
of several prosecution witnesses have pointed out role played by the
applicant who is running family business of transport and who has
also provided both the trucks for transport of psychotropic
substance. It is also reflected from the evidence that the applicant
was present in the truck when the contraband goods were being
transported. Looking to the depositions of P.W. 1 and of other
officers of Directorate of Revenue Intelligence, this applicant has
financed the purchase of trucks and he was also present in one of the
trucks carrying huge quantity psychotropic substance i.e. 5325 Kgs.
Though summons were given under Section 67 of NDPS Act, to the wife
of applicant, he was not available to Investigating Officer. It is
also reflected in para 67 of charge-sheet filed by Directorate of
Revenue Intelligence.
(d) The
present applicant was arrested by police, Bombay under the Arms Act.
Directorate of Revenue Intelligence, Bombay applied in Bombay Court
for custodial interrogation. This is how he was arrested in the
present case. Also looking to the statement of Dinesh and others
recorded under Section 67 of NDPS Act, the present applicant was
involved in the transporting of several contraband articles, like
transportation of silver goods, contraband chemical powder,
contraband electrical goods etc. in past alongwith other co-accused.
As there are several statements against the present applicant and as
this is a bail application stage, this Court is not evaluating the
evidence any further. Suffice it to say that as a cumulative effect,
there is a prima facie case against the present applicant and also
looking to the gravity of the offence and quantum of punishment,
there are all chances that if the sentence is suspended, the present
applicant may not be available and may involve in similar
activities.
(vi) The
learned advocate for the applicant has relied upon decisions rendered
by the Hon’ble Supreme Court mainly for canvassing the point that the
confessional statement recorded by the investigating agency, of a
co-accused, if not tried together, then cannot be relied upon. Thus,
joint trial with the co-accused who has given confessional statement
is necessary. Looking to the facts of the present case, these
judgments, prima facie, are not applicable to the facts of the
present case mainly for the reason that over and above confessional
statement, there is also another sufficient evidences against the
present applicant. It starts from exh. 27 intelligence report,
seizure of huge quantity of psychotropic substance and also several
panchnamas which have been proved during the course of the trial in
Sessions case. In view of this additional evidence against the
present applicant, at this bail stage, we are not inclined to suspend
the sentence awarded to the applicant by the trial court. At the
same time, we hereby direct preparation of the paper book as
expeditiously as possible so that this appeal can be fixed for final
hearing.
(vii) It
has been held by the Hon’ble Supreme Court in the case of Khilari
vs. State of U.P. and another reported in AIR 2008 SC, 1882 in para
10 as under:
“10:
In Anwari Begum vs. Sher Mohammad and Another (2005(7) SCC 326) it
was, inter alia, observed as follows:
“7.
Even on a cursory perusal the High Court’s order shows complete
non-application of mind. Though detailed examination of the evidence
and elaborate documentation of the merits of the case is to be
avoided by the Court while passing orders on bail applications, yet a
court dealing with the bail application should be satisfied as to
whether there is a prima facie case, but exhaustive exploration of
the merits of the case is not necessary. The Court dealing with the
application for bail is required to exercise its discretion in a
judicious manner and not as a matter of course.
8. There
is a need to indicate in the order, reasons for prima facie
concluding why bail was being granted particularly where an accused
was charged of having committed a serious offence. It is necessary
for the courts dealing with application for bail to consider among
other circumstances, the following factors also before granting bail,
they are :
1.
The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence;
2.
Reasonable apprehension of tampering of the witness or apprehension
of threat to the complainant;
3.
Prima facie satisfaction of the Court in support of the charge.
Any
order dehors of such reasons suffers from non-application of mind as
was noted by this Court in Ram Govind Upadhyay vs. Sudarshan Singh
and Others (2002) 3 SCC 598); Puran etc. vs. Rambilas and Another
etc. (2001) 6 SCC 338) and in Kalyan Chandra Sarkar vs. Rajesh Ranjan
alias Pappu Yadav and Another (JT 2004(3) SC 442).”
Looking
to evidence on record, there is a prima facie case against the
applicant. In support of charge levelled by D.R.I., prima facie,
there is enough evidence against the applicant like evidence at
Exhibit Nos.26, 27, 61, 71, 213, 284 etc. – witnesses to be read with
Exhibit Nos.27, 52 etc. Offence committed by the applicant is an
offence, which affects the society at large. Charge of conspiracy
under Section 29 of NDPS Act,1985 is also prima facie, proved as per
evidence on record.
3. As
a cumulative effect of the aforesaid facts, reasons and judicial
pronouncement, there is no substance in this application. Hence, the
same is hereby dismissed.
(R.P.Dholakia,J)
(D.N.Patel,J)
***darji
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