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CR.MA/8686/2005 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8686 of 2005
In
CRIMINAL
APPEAL No. 89 of 2002
==============================================================
RAMESHBHAI
SUNDARLAL DHOBI ? Applicant.
Versus
STATE
OF GUJARAT & 1 - Respondents
==============================================================
Appearance
:
THROUGH
JAIL for
Petitioner.
Ms.Hansa
Punani, A.P.P. for
Respondents.
==================================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.M.PANCHAL
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 23/08/2005
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.M.PANCHAL)
Rule.
Ms.Hansa Punani, learned A.P.P., waives service of notice on behalf
of the respondents. Having regard to the facts of the case, the
application is heard today.
2. By
forwarding this application through the Superintendent, Central Jail,
Baroda, the prisoner i.e. Rameshbhai Sunderlal Dhobi, undergoing R.I.
for 15 years and fine of Rs.1 Lac, in default, R.I. for one year, for
commission of offences punishable under Sections 21 & 29 of the
N.D.P.S.Act read with Section 120-B of I.P.C.,
has prayed to enlarge him on
temporary bail for a period of 45 days to enable him to repair his
damaged house.
3. Heard
the learned counsel of the respondents. In Dadu alias Tulsidas v.
State of Maharashtra, (2000)8 SCC 437, the Supreme Court has held
that Section 32A of the NDPS Act is unconstitutional to the extent it
takes away the right of the Court to suspend the sentence of a person
convicted under the N.D.P.S.Act. However, what is ruled therein is
that only appellate Court can suspend a sentence imposed under the
Act and that too strictly subject to the conditions set out in
Section 37. In view of conviction of the appellant under sections 21
& 29 of the N.D.P.S.Act read with Section 120B of I.P.C., it is
difficult for this Court to conclude that the appellant is not guilty
of the offence punishable under the Act. There is no record before
the Court on the basis of which the Court can come to conclusion that
the appellant is not likely to commit any offence while on bail. As
mandatory provisions of Section 37 of the Act are not satisfied in
the case, prayer for temporary bail cannot be entertained and is
liable to be refused.
For
the foregoing reasons, the application fails and is rejected. Rule is
discharged.
[
J.M.PANCHAL, J.]
[
H.B.ANTANI, J.]
(patel)
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