R/CR.MA/25219/2024 ORDER DATED: 16/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE REGULAR BAIL - AFTER CHARGESHEET) NO. 25219 of 2024 ========================================================== MOHAMMED TOKIR @ TOSIF HANIF SHAIKH Versus STATE OF GUJARAT ========================================================== Appearance: MR AADITYA BHATT for MS SARIKA S. SALVE(14441) for the Applicant(s) No. 1 MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 16/07/2025 ORAL ORDER [1.0] RULE. Learned APP waives service of rule for the respondent-State. [2.0] The present successive application is filed under Section 439 of the Code of Criminal Procedure, 1973 (for short “CrPC”) for regular bail in connection with FIR being C.R. No.11210015240037 of 2024 registered with DCB Police Station, Surat City for the offences under Sections 8(C), 22(c) and 29 of the Narcotic Drugs and Psycotropic Substances Act (for short “NDPS Act”). [3.0] Learned advocate appearing on behalf of the applicant submits that applicant is innocent and has been falsely implicated in the offence. Further, similarly situated co-accused namely Rehan has been considered by the coordinate Bench and therefore also, applicant is entitled to benefit of parity. Further, though charge-sheet is filed and nothing is to be recovered or discovered from the present applicant, he is behind the bars since 02.05.2024 but charge is yet not framed. He has mainly submitted that the applicant is falsely enroped in the offence and no substantial compliance of sections 41, 42, 50 and 52A of the NDPS Act is on record. Even, the chain of custody of alleged contraband is not proved. As per the case of prosecution, alleged contraband was found from the conscious possession of the present R/CR.MA/25219/2024 ORDER DATED: 16/07/2025 applicant but prior to that same was handed over to panch witness and thereafter FSL Officer came and the contraband was handed over to the FSL Officer. Thereafter, sample was drawn on 03.05.2025 and is not clear on record as to whether the same was sent to the FSL for examination in presence of Magistrate and possibility of tampering with the sample cannot be ruled out. Further, he has submitted that so far as allegation of applicant having one past antecedent is concerned, when the applicant was in jail, at that time, based on similar set of facts, another offence was registered and applicant was falsely enroped however, in connection with the said offence, he has been released on bail. Therefore, on the ground of delay in trial, he has requested to enlarged the applicant on regular bail by imposing suitable conditions. [4.0] Learned APP appearing on behalf of the respondent-State has vehemently opposed the present application and requested to dismiss the present application for regular bail on the ground that admittedly the applicant is found in conscious possession of the commercial quantity of contraband and therefore, rigors of section 37 of the NDPS Act would be attracted. Further, he has submitted that applicant is having one past antecedent and moreover two other IPC offences are registered against the present applicant. Not only the applicant is found in conscious possession of the contraband but was in constant touch of co-accused and 60 times calls were made between the applicant and the co-accused and CDR is also collected. Merely co-accused Rehan is considered by the coordinate Bench is not a ground to consider the present application as role of Rehan and present applicant is different as conscious possession of applicant is not in dispute. Further, if the applicant is released on bail then the possibility of tampering with evidence and indulging in similar type of activity cannot be ruled out. He has therefore requested to dismiss the present application. [5.0] I have heard the learned advocates appearing for the respective parties at length. Page 2 of 6 R/CR.MA/25219/2024 ORDER DATED: 16/07/2025 [6.0] Perusing the investigation papers it appears that the applicant is facing charge for the offence under Sections 8(C), 22(c) and 29 of the NDPS Act however, at the same time the Court has to consider that applicant is behind the bars since 02.05.2024. Till date charge is not framed and hence, obviously commencement and conclusion of trial will take its own time and therefore, considering the right to speedy justice as enshrined under Article 21 of the Constitution of India. In howsoever serious offence or under the special Act an accused is involved, on the ground of delay in trial, the accused is entitled to be released on bail. Hence, without discussing further on merits, present application deserves consideration on the following grounds: (1) Present is a successive bail application and after withdrawal of earlier application, till date charge is not framed and applicant is behind the bars since 02.05.2024 and hence, delay in trial is one of the ground and considering the aforesaid fact, merely the rigors of section 37 of the NDPS Act is not a ground to refuse the bail application of the applicant. Hence, on the ground of delay in trial, the applicant is entitled to bail. In this regard, reference is required to be made to the decisions of the Hon’ble Supreme Court in the case of Mohd Muslim @ Hussain vs. State (NCT of Delhi) reported in AIR 2023 SC 1648 and Union of India vs. K.A. Najeeb reported in (2021) 3 SCC 713. (2) The applicant was found in the conscious possession of alleged contraband but looking to the allegation and chain of custody of alleged contraband, it appears that co-accused Rehan has procured the alleged contraband from Mumbai and he has supplied. Thereafter, it was kept in the possession of the present applicant. Said co-accused Rehan, who was similarly situated to the present applicant, has already been considered by the coordinate Bench and therefore, even on the ground of parity, the R/CR.MA/25219/2024 ORDER DATED: 16/07/2025 applicant is required to be considered for bail. (3) So far as compliance of sections 41, 43, 50 and 52(A) of the NDPS Act is concerned, same is subject matter of trial and question of evidence. [7.0] While granting bail, the Court has to consider the involvement of the accused in the alleged offence, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered. [8.0] This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation reported in [2012]1 SCC 40 as well as in the case of Gudikanti Narasimhulu And Ors vs. Public Prosecutor, High Court of Andhra Pradesh reported in (1978)1 SCC 240. Obviously, the conclusion of trial will take time and keeping the accused behind the bars is nothing but amounts to pre-trial conviction and therefore, considering the celebrated principle of bail jurisprudence is that “bail is a rule and jail is exception” as well as the concept of personal liberty guaranteed under Article 21 of the Constitution of India, present application deserves consideration. [9.0] In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing R/CR.MA/25219/2024 ORDER DATED: 16/07/2025 the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R. No.11210015240037 of 2024 registered with DCB Police Station, Surat City on executing a personal bond of Rs.25,000/- (Rupees Twenty-five Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall; (a) not take undue advantage of liberty or misuse liberty; (b) not act in a manner injurious to the interest of the prosecution & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police; (c) surrender passport, if any, to the Trial Court within a week; (d) not leave the State of Gujarat without prior permission of the Trial Court concerned; (e) mark presence before the concerned Police Station once in a month till the trial is over between 11.00 a.m. and 2.00 p.m.; (f) furnish Aadhar Card number, contact number, e-mail ID (if any) and the present address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the same without prior permission of Trial Court; (g) not to enter District Surat for a period of six months except for marking presence or for attending the Court failing which learned trial Court shall have liberty to directly issue warrant against the applicant; [10.0] The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Page 5 of 6 R/CR.MA/25219/2024 ORDER DATED: 16/07/2025 [11.0] Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. [12.0] At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail. [13.0] Rule is made absolute to the aforesaid extent. Direct service is permitted. (HASMUKH D. SUTHAR, J.) Ajay Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 16/07/2025 15:39:13