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CR.MA/9086/2005 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9086 of 2005
In
CRIMINAL
APPEAL No. 61 of 2002
==============================================================
YADUVENDRA
PURANSINH DHILLON - Applicant
Versus
STATE
OF GUJARAT & 1 - Respondents
==============================================================
Appearance
:
THROUGH
JAIL for Applicant(s)
: 1,MR RAJESH M AGRAWAL for Applicant(s) : 1,MR ASHISH M DAGLI for
Applicant(s) : 1,
MR ND GOHIL, A.P.P. for
Respondents
==================================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.M.PANCHAL
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 02/09/2005
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.M.PANCHAL)
Rule.
Mr.N.D.Gohil, 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. Yaduvendrasing Puransing Dhilon, undergoing
sentence of R.I. for ten years and fine of Rs. 1 Lac, in default,
R.I. for six months, for commission of offence punishable under
Section 22 r.w.section 29 of the N.D.P.S.Act, 1985, has prayed to
enlarge him on temporary bail for a period of 30 days to enable him
to help his flood affected family.
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 State of M.P. vs. Kajad, (2001)7 SCC 673, the Supreme
Court has emphasised that Section 37 of the N.D.P.S.Act enjoins that
a person accused of an offence punishable for a term of imprisonment
of five years or more, shall generally be not released on bail.
According to the Supreme Court, negation of bail is the rule and its
grant an exception under sub-clause(ii) of clause (b) of Section
37(1). What is ruled therein is that for granting bail, the Court
must, on the basis of the record produced before it, be satisfied
that there are reasonable grounds for believing that the accused is
not guilty of the offences with which he is charged and further that
he is not likely to commit any offence while on bail. In view of
conviction of the prisoner under section 22 r.w.section 29 of the
N.D.P.S.Act, it is difficult for this Court to conclude that the
prisoner 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 the conclusion that the prisoner is not likely to commit any
offence while on bail. As mandatory provisions of Section 37 of the
Act are not satisfied in this case, prayer for temporary bail cannot
be granted and is liable to be rejected.
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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