IN THE SUPREME COURT OF INDIA

[S.C.R., ORDER XXII RULE 2(1)]

(Under Article 136 of the Constitution of India)
CRIMINAL APELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. OF 2024

[ARISING OUT OF FINAL ORDER AND JUDGMENT DATED

05.12.2023 PASSED BY THE HON’BLE HIGH COURT OF
GUJARAT AT AHMEDABAD IN R/CRIMINAL MISC.
APPLICATION (FOR REGULAR BAIL- AFTER
CHARGESHEET) NO. 5669 OF 2023]

[WITH PRAYER FOR INTERIM RELIEF]

IN THE MATTER OF:

Sajidhusen Anwarhusen Malek …Petitioner
Versus
The State of Gujarat …Respondent

WITH

Crl. M. P. No..........................…….of 2024

(Application for exemption from filing official translation)

PAPER - BOOK
(KINDLY SEE INSIDE FOR INDEX)

ADVOCATE FOR THE PETITIONER:

SHIVANSH B. PANDYA
 RECORD OF PROCEEDINGS
S. NO. DATE OF RECORD OF PROCEEDINGS PAGES

INDEX OF PAPERS
S. No. Particulars of Document Page No. of part to Remarks
which it belongs
Part 1 Part II
(Contents of (Contents
paper book) of file
alone)
(i) (ii) (iii) (iv) (v)
Court fee NIL A
1. Office order on limitation A A
2. Listing Performa A1-A2 A1-A2
3. Cover Page of Paper Book P3
4. Index of Record of P4
Proceedings
5. Limitation Report P5
prepared by the Registry
6. Note Sheet NS1 to
7. Synopsis & List of Dates B-
8. Copy of the final order
and judgment dated
05.12.2023 passed by the
Hon’ble High Court of
Gujarat at Ahmedabad in
R/Criminal Misc.
Application (for regular
bail- after chargesheet)
No. 5669 of 2023
9. Special Leave Petition
with certificate and
Affidavit
10. APPENDIX 1:
11. APPENDIX 2:
12. ANNEXURE-P1
True translated copy of
the FIR bearing CR No.
11191011220011/2022
registered with DCB
Police Station,
Ahmedabad City dated
31.01.2022
13. ANNEXURE-P2
True translated copy of
the chargesheet dated
25.04.2022
14. ANNEXURE-P3
Copy of the final order
and judgment passed by
the Hon’ble High Court in
regular bail application
filed by the co-accused
bearing Criminal Misc.
Application No. 13166 of
2023
15. ANNEXURE-P4
Copy of the affidavit
dated 16.02.2023
submitted by the
investigating officer
before the Ld. Trial Court
16. ANNEXURE-P5
Copy of the order dated
23.02.2023 passed by the
 Ld. Trial Court in first
bail application bearing
Criminal Misc.
Application No. 1118 of
2023
17. ANNEXURE-P6
Copy of the petition u/s
439 CrPC preferred before
the Hon’ble High Court
bearing R/Criminal Misc.
Application No. 5669 of
2023
18. Crl. MP. No. ____of
2023
Application for exemption
from filing official
translation
19. Vakalatnama
20. Memo of parties
21. Filing Index
 SYNOPSIS

The present special leave petition is being preferred against

the impugned final order and judgment dated 05.12.2023 passed by
the Hon’ble High Court of Gujarat at Ahmedabad in R/Criminal
Misc. Application No. 5669 of 2023, whereby the petition u/s 439
of Code of Criminal Procedure, 1973 preferred by the Petitioner for
grant of regular bail in connection with FIR bearing No.
11191011220011/2022 registered with DCB Police Station,
Ahmedabad for offences punishable under Sections 8(c), 21(c) and
29 of the Narcotics, Drugs and Psychotropic Substances Act, 1985
(hereinafter “Act”) was dismissed.

The facts of the case as per the prosecution are that secret
information was received that a resident of Shahpur (Ahmedabad)
by the name of Parvez Shaikh (Accused No. 2) was travelling with
illegal drugs from Sarangpur bridge towards Rakhial in a blue
Baleno car having registration number GJ-01-KY-9687. A police
raiding party with panch witnesses was dispatched to the area on
31.01.2022 and a car with matching description and registration
number was found being driven on the said route. The said vehicle
was stopped, and it was found that it had five (5) occupants, viz.
Mazarkhan Ayubkhan Pathan (Accused No. 1) in driver seat,
Mohmed Parvezmiya Ismailmiya Shaikh (Accused No. 2) in front
passenger seat and three (3) other persons, including the Petitioner
in the back seat (Accused No. 3-5). A search of the persons and the
vehicle was carried out. While nothing of note was recovered from
the persons, however, a white powdery substance was recovered
from the front compartment of the dashboard where Accused No. 2
was sitting. All the persons were arrested and taken to the police
station. Upon testing and weighing it was found that the white
substance was a scheduled psychotropic substance by the name of
“MEPHEDRONE” and weighing 192.57 grams, being in excess of
50 grams, which is the threshold for the subject drug according to
the relevant notifications issued by the Central Government.
Further, the said contraband was valued at Rs. 19,25,700/-. As
such, the subject FIR was registered against all the persons
travelling in the said car (including the Petitioner) for commission
of offences u/s 8(c), 21(c) & 29 of the Act.

Pursuant to the arrest, the Petitioner was forwarded to

judicial custody, and has been in such custody since the past more
than two (2) years.

Thereafter, the investigation in the case was completed and

chargesheet dated 31.01.2022 was filed against all the persons
travelling in the car, for the commission of offences u/s 8(c), 21(c)
& 29 of the Act. Pertinently, in the chargesheet, no allegation was
made against the Petitioner except for the fact that he was present
in the car.

After filing of the chargesheet, the Petitioner moved the Ld.

Trial Court for regular bail u/s 439 of Code of Criminal Procedure,
1973 (“CrPC”). While the said application was pending
consideration, the Hon’ble High Court granted bail to Accused No.
1 (driver of the car). Despite the aforesaid position, the Ld. Trial
Court dismissed the bail application of the Petitioner only on the
ground of regular phone calls between the Petitioner and other co-
accused.

The Petitioner thereafter filed the subject petition before the

Hon’ble High Court, which was dismissed by way of the impugned
final order and judgment dated 05.12.2023. The Hon’ble High
Court did not consider the aspect of parity on the erroneous
reasoning that the Accused No. 1 was a “wage driver” and that
apart from driving of the vehicle, no overt act was attributed to
him. However, the Hon’ble High Court failed to consider that the
said co-accused was also in touch over mobile with the other co-
accused, and was in fact driving the said vehicle and was in close
proximity to the place where the drugs were recovered. Whereas
the case of the Petitioner herein is on a much better footing as the
Petitioner was only sitting on the backseat of the car and apart from
the contact over mobile phone with the co-accused who is his
childhood friend, there is absolutely nothing against him.

Further, even the aspect of contact over mobile phone was

specifically explained before the courts below as the Petitioner and
other co-accused are friends since a very young age and therefore,
they are regularly talking on the phone.

It is further submitted that the presence of the Petitioner in

the said car on the subject day was only a quirk of fate, and as is
clearly evident from the nature of confidential information received
by the prosecution, as also the lack of proximity of the Petitioner to
the area from where the contraband was recovered, there are cogent
grounds for believing that the Petitioner had no idea that the said
contraband was being stored in the dashboard compartment. As
such, the present case cannot be of conscious possession.

There are no criminal antecedents of the Petitioner. The

Petitioner is the sole bread-winner of the family and has a wife and
two young daughters. The Petitioner thus has deep roots in the
society and is ready and willing to abide by any condition imposed
by this Hon’ble Court for the grant of bail. Hence this petition.
 LIST OF DATES AND EVENTS
Date Event
31.01.202 - The complainant i.e. (ML Solanki), Police Sub-
2 Inspector (PSI), Crime Branch, Ahmedabad
received secret information that Pervezmiyan
Shaikh (Accused No. 2), a resident of Shahpur,
Ahmedabad is travelling with illegal contrabands
in his car being a Maruti Suzuki Baleno bearing
Registration No. GJ-01-KY-9687 and that he will
be coming from Rakhiyal on Saranpur Bridge and
going towards Shahpur.

The complainant along with other officers of the

raiding party and pancha witnesses intercepted the
vehicle as described in the secret information. The
said vehicle was being driver by Accused No. 1
Mazharkhan Ayubkhan Pathan and accused No. 2
Pervezmiyan Ismailmiya Shaikh, to whom the
secret information pertained, was sitting in the
front passenger seat while Accused No. 3
Sajidhusen Anwarhusen Malek (the Petitioner
herein), along with two other accused persons
were sitting on the backseat of the vehicle. Body
search of the accused persons was carried out
but no contraband was found on any person.
Accused No. 2 Pervezmiya Shaikh (to whom the
secret information pertained) informed the
officers that the said vehicle Maruti Suzuki
Baleno bearing Registration No. GJ-01-KY-
9687 belongs to him and is registered under his
wife’s name with the RTO.
 Thereafter, the raiding party carried out a search
of the car and from the dashboard the illegal
contraband i.e. Mephedrone was seized
weighing 192.57 grams (as against notified
commercial quantity of 50 grams).

True translated copy of the FIR bearing No.

11191011220011/2022 registered with DCB
Police Station, Ahmedabad is enclosed herewith
and marked as Annexure-P1 (Pages ____ to
____).

25.04.202 - The investigation agency has concluded the

2 investigation and filed the chargesheet in
connection with the impugned FIR.

True translated copy of the chargesheet is

enclosed herewith and marked as Annexure-P2
(Pages ____ to ____).

23.01.202 - The Petitioner preferred a regular bail

3 application u/s 439 CrPC before the Ld. Trial
Court.

During the pendency of the said petition, the

Hon’ble High Court vide order of even date
granted bail to the co-accused, viz. Accused No.
1 Mazharkhan Ayubkhan Pathan.

A copy of the final order and judgment dated

 23.01.2023 passed in Criminal Misc.
Application No. 13166 of 2023 is annexed
herewith and marked as Annexure-P3 (Pages
____to___).

23.02.202 - Despite the co-accused being granted bail by the

3 Hon’ble High Court, the Ld. Trial Court
proceeded to dismiss the bail application of the
Petitioner vide final order of even date.

Copy of the affidavit dated 16.02.2023

submitted by the investigating officer before the
Ld. Trial Court is enclosed herewith and marked
as Annexure-P4 (Pages ____ to ____).

Copy of the final order dated 23.02.2023 passed

by the Ld. Trial Court in Criminal Misc.
Application No. 1118 of 2023 is enclosed
herewith and marked as Annexure-P5 (Pages
____ to ____).

28.03.202 - Aggrieved by the aforesaid, the Petitioner

3 preferred a regular bail application before the
Hon’ble High Court of Gujarat in R/Criminal
Misc. Application (For Regular Bail – After
Chargesheet) No. 5669 of 2023 which
subsequently came to be rejected by way of the
impugned judgment.

A copy of the petition dated 28.03.2023 filed by

 the Petitioner before the Hon’ble High Court is
enclosed herewith and marked as Annexure-P6
(Pages ____ to ____).

__.02.202 - Hence the present petition.

4
 IN THE SUPREME COURT OF INDIA
[ORDER XXII RULE 2(1) SCR]
(Under Article 136 of the Constitution of India)
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. OF 2024
[ARISING OUT OF FINAL ORDER AND JUDGMENT DATED
05.12.2023 PASSED BY THE HON’BLE HIGH COURT OF
GUJARAT AT AHMEDABAD IN R/CRIMINAL MISC.
APPLICATION (FOR REGULAR BAIL- AFTER
CHARGESHEET) NO. 5669 OF 2023]

IN THE MATTER OF: POSITION OF PARTIES

HIGH COURT IN THIS
COURT
Sajidhusen Anwarhusen Petitioner Petitioner
Malek
R/o 2633, Chinaigarani Pol,
Shahpur Vad, Shahpur,
Ahmedabad.

(Presently under custody at

Ahmedabad Central Prison)
VERSUS

State of Gujarat Respondent Respondent

Through Secretary (Home)
2nd Block, 2nd Floor,
Sachivalaya, Gandhingar,
Gujarat-382010

TO,
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA

THIS HUMBLE PETITION OF

THE PETITIONER ABOVE-
NAMED

MOST RESPECTFULLY SHEWETH:

1. That the present petition has been filed seeking leave to appeal
from final order and judgment dated 05.12.2023 passed by the
Hon’ble High Court of Gujarat at Ahmedabad in R/Criminal Misc.
Application (for regular bail-after chargesheet) No. 5669 of 2023
whereby the Petitioner’s application seeking bail in connection
with FIR bearing No. 11191011220011/2022 dated 31.01.2022
registered at DCB Police Station District: Ahmedabad City for the
offences punishable under Section 8(c), 21(c) and 29 of the
Narcotics, Drugs and Psychotropic Substances Act, 1985 was
dismissed.

QUESTIONS OF LAW

2. That it is submitted that the following questions of law arise for the

kind consideration of this Hon’ble Court:

A. Whether the Hon’ble High Court erred in denying bail to Petitioner

despite the fact that the only incriminating factor qua the Petitioner
was his presence in the back seat of the car?

B. Whether the Hon’ble High Court has erred in giving weightage to

the fact that the Petitioner was in telephonic contact with the other
co-accused person despite it being explained by the Petitioner that
the Petitioner and the other co-accused person are childhood
friends?

C. Whether the Hon’ble High Court has erred in not following the
principle of parity on the grounds of Accused No. 1 being an
alleged “wage driver”, or having no past call records with Accused
No. 2?
D. Whether in the facts and circumstances of the case and in law, the
Petitioner herein has satisfied the requirements for grant of bail
contained in section 37 of the Act?

DECLARATION IN TERMS OF RULE 2(2):

3. The Petitioner states that no other petition seeking leave to appeal

has been filed by the Petitioner against the impugned final order
and judgment dated 05.12.2023 passed by the Hon’ble High Court
in R/Criminal Misc. Application (for regular bail – after
chargesheet) No. 5669 of 2023.

DECLARATION IN TERMS OF RULE 4:

4. That the Annexure produced along with the petition are true copies
of the pleadings/documents which formed a part of the records of
the case in the court below against whose order the leave to appeal
is sought for in this petition. All documents filed with this petition
form a part of the records of the courts below.

5. That the Petitioner herein has preferred this petition seeking setting
aside of the impugned final order and judgment dated 05.12.2023
on the following, amongst other,
GROUNDS:

A. BECAUSE the secret information received by the Respondent was

to the effect that alleged contraband was being transported by the
Accused No. 2. The said information had no relation to the
Petitioner whatsoever.

B. BECAUSE the Hon’ble High Court has failed to note that the car
in which the Petitioner was travelling belonged to Accused No. 2
 and the secret information basis which the search was conducted
also pertained to Accused No. 2. Further, recovery of the
contraband was also from the area near which Accused No. 2 was
sitting.

C. BECAUSE the presence of the Petitioner in the car was only a

quirk of fate and it was duly explained by him before the courts
below that he was travelling with his friends and he had absolutely
no idea about the presence of alleged contraband in the dashboard
of the car.

D. BECAUSE the fact that the Petitioner was sitting in the backseat as
against the recovery of the contraband from the dashboard of the
car clearly demonstrates the fact that the Petitioner was not at all
connected with the same. It is submitted that the Petitioner was
merely a passenger in the car.

E. BECAUSE it is submitted that the Hon’ble High Court has erred in

not examining the aspect of conscious possession in the proper
perspective as the sole factor of presence of the Petitioner in the car
from which recovery is effected cannot be the ground to presume
possession within the provisions of section 54 of the Act.

F. BECAUSE a perusal of the application filed before the Hon’ble

High Court would demonstrate that the Petitioner had duly
explained therein the fact that the Petitioner was friends with
Accused No. 2 and therefore was travelling in his car, which fact
has not been disputed by the Respondent. As such, the alleged fact
of regular phone calls between the Petitioner and the co-accused
also stand sufficiently explained.
G. BECAUSE the Respondent has not even alleged any role of the
Petitioner in the FIR or the chargesheet and further, the Petitioner
has been roped in only on the sole ground of his presence in the
said vehicle.

H. BECAUSE the conclusion of trial is likely to take a long time and

the Petitioner has already suffered incarceration for more than two
(2) years.

I. BECAUSE the Petitioner has no criminal antecedents and there is

no likelihood of him committing any offence if he is released on
bail.

J. BECAUSE the Petitioner is the sole bread-winner of his family

comprising of wife and two young daughters. He also has movable
and immovable property within the jurisdiction of the courts
below. As such, he has deep roots in the society and there is no
likelihood of him absconding in case he is released on bail.

K. BECAUSE all the witnesses cited by the prosecution are official

witnesses and therefore, there is no likelihood of the Petitioner
either influencing witnesses or tampering with the evidence.

GROUNDS FOR INTERIM RELIEF

6. That the Petitioner submits that during the pendency of the present
petition, he is entitled to interim relief on the following grounds:
A. BECAUSE the Petitioner has deep roots in the society. He is the
sole bread winner of the family and has a wife and two young
daughters. He has movable and immovable properties within the
jurisdictional of the courts below and as such there is no likelihood
of him absconding during the pendency of the present petition.
B. BECAUSE the Petitioner has no criminal antecedents and there is
no likelihood of him committing any offence if he is released on
bail.
C. BECAUSE all the witnesses cited by the prosecution are official
witnesses and therefore, there is no likelihood of the Petitioner
either influencing witnesses or tampering with the evidence.

MAIN RELIEF
7. In view of the above facts and circumstances, it is most
respectfully prayed that this Hon’ble Court may graciously be
pleased to:
(a) Grant special leave to appeal against the final order and
judgment dated 05.12.2023 passed by the Hon’ble High
Court of Gujarat at Ahmedabad in R/Criminal Misc.
Application (for regular bail-after chargesheet) No. 5669 of
2023; and
(b) Pass any other order as deemed fit in the facts and
circumstances of the case.

INTERIM RELIEF
8. That it is most respectfully prayed that pending final disposal of the
instant petition this Hon’ble Court be pleased to:
(a) Pending admission, hearing and till final disposal of this

petition, this Hon’ble Court may be pleased to enlarge the

applicant on interim bail in connection with FIR being

11191011220011 of 2022 dated 31.01.2022 registered

with DCB Police Station District : Ahmedabad for the

offences punishable under sections 8(c), 21 (c) and 29 of

 the Narcotics, Drugs and Psychotropic Substances Act,

1985, upon any suitable conditions; and/or

(b) Pass such other order or orders as this Hon’ble Court

deems fit and proper in the facts and circumstances of the

case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS

IS DUTY BOUND SHALL EVERY PRAY.

DRAWN BY: FILED BY:

SHIVANSH B. PANDYA
AMAAN AHMED KHAN SHIVANSH B. PANDYA
Advocate for the Petitioner

DRAWN ON: 10.02.2024

FILED ON: ___.02.2024
PLACE: NEW DELHI