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CR.MA/14204/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14204 of 2010
======================================
R
M RATHOD
Versus
STATE
OF GUJARAT
======================================
Appearance
:
MR GIRISH K PATEL for
Applicant,M/S S G ASSOCIATES for Applicant.
MR
LB DABHI, APP for Respondent.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 01/04/2011
ORAL
ORDER
1. The
petitioner seeks bail in connection with FIR dated 8.4.2006 filed
before Gorva Police Station. Petitioner is a police officer.
Allegations against him pertain to false involvement of one Prakash
Pillai in narcotic offences. After completion of investigation
charge sheet came to be filed against the petitioner, who is shown as
accused no.3 and other co-accused alleging commission of offences
punishable under Sections 8(C), 15, 18, 20, 22 and 29 of the Narcotic
Drugs and Psychotropic Substances Act and Section 120 (B), 195, 491,
465, 467, 468 and 471 of the Indian Penal Code.
2. Previously
petitioner had approached this Court by filing regular bail
application after charge sheet, which bail application being Criminal
Misc. Application No.674 of 2009 came to be disposed of an by order
dated 10.11.2009 in following terms:
“Dismissed
as not pressed. Notice is discharged. It will be open for the
petitioner to request the trial court for taking up the trial for
early hearing. When such a request is made, learned Judge shall
consider it depending upon workload of the concerned court.”
3. This
fresh bail application is filed mainly on two grounds. Firstly that
the trial has been stayed by this Court by an order dated 9.4.2010
passed in Criminal Revision Application No.217 of 2010 and that
therefore the trial is unlikely to be over shortly. The second
ground is that the trial Court has framed charge only under Sections
29 and 58 of the NDPS Act, maximum punishment prescribed for which is
two years.
4. Taking
me through the documents on record, counsel for the petitioner
submitted that the petitioner is a police officer, after changing of
investigating officers and recording of further statements, his
involvement was revealed in the alleged offence suggesting that bag
full of narcotic (Ganja) was found abandoned behind the bushes near
the house of Prakash Pillai. Petitioner is sought to be roped in in
framing said Prakash Pillai in false narcotic case. He along with
others have therefore been charge-sheeted as mentioned above.
5. Counsel
further submitted that co-accused one Krishna Somani has been
released on bail by this Court by an order dated 15.1.2009 passed in
Criminal Misc. Application No.16789 of 2008.
6. Counsel
drew my attention to Section 436-A of the Criminal Procedure Code to
contend that the petitioner cannot be detained in jail beyond the
maximum period of punishment prescribed for the offences alleged. He
submitted that the petitioner is in jail since 29.8.2008 without
trial and being a police officer he is not likely to jump the bail.
7. On
the other hand learned APP opposed the bail application contending
that the petitioner is a police officer found to have been involved
in setting up a false case of narcotic against an innocent person.
Co-accused Kalubhai Vahoniya was denied bail by this Court by order
dated 6.2.2009 passed in Criminal Misc. Application No.15767 of 2008.
He further submitted that the charge framed by the trial Court has
been challenged by said Prakash Pillai and the High Court has stayed
trial. The charge, therefore, framed by the trial Court has not
attained finality. Learned APP further pointed out that the bail
granted to said Krishna Somani was challenged before the Supreme
Court and thereafter application for cancellation of such order has
been moved before High Court.
8. Having
heard learned advocate for the parties and having perused the
documents on record, at this stage when the trial is yet to be
completed, I do not find it appropriate to make any observations on
the nature of evidence on record and the rival contentions regarding
the involvement or lack thereof of the petitioner in the alleged
offence.
9. When
previously the petitioner’s bail application was turned down, as is
apparent from order dated 10.11.2009, there was some hope and
expectation that the trial would be completed within reasonable
period. It was, therefore, that while permitting the petitioner to
withdraw the bail application he was allowed to request the trial
Court for taking up trial on early hearing basis.
10. In
view of subsequent development, however, unfortunately this
expectation of completion of trial at an early date would not be
fulfilled. This is so because when the trial Court framed the
charge, the same came to be challenged by the victim and this Court
has stayed entire trial by an order dated 9.4.2009.
11. In
that view of the matter, I have permitted counsel for the petitioner
to argue the bail application on merits, though previously bail
application was withdrawn after charge sheet. Previous bail
application as one can see was withdrawn on 10.11.2009. After
considerable gap of time particularly when the possibility of early
conclusion of the trial is ruled out, I see no difficulty in
examining the request of the petitioner for bail on merits. In the
meantime one more factor which has intervened is framing of charge by
the trial Court.
12. As
per the charge framed offences alleged are those punishable under
Sections 29 and 58 of the NDPS Act maximum punishment being two
years. It is of course true that this Court is examining such order
of the trial Court and found prima facie interest to
scrutinize the issues closely. It is therefore that the Court has by
giving brief reasons entertained petition and also stayed the trial.
13. The
piquant situation therefore arises is that on one hand the petitioner
is in jail since 29.8.2008 with no possibility of an early end to the
trial. On the other hand, the trial is stayed and it is not clear
when such stay may be lifted. Yet another aspect of the matter is
that as per the trial Court at least the material on record suggests
involvement of the petitioner in offences no more serious than those
punishable under Sections 29 and 58 of the NDPS Act. This aspect of
the matter is being re-examined by High Court, however, such issue is
yet to achieve finality.
14. In
the meantime, one more co-accused has been released on bail, of
course on an additional ground of indifferent health. Fact, however,
remains that the petitioner is in jail since 29.8.2008 and the trial
is unlikely to be completed soon.
15. I
notice that against the bail granted by this Court in the case of
Krishna Somani was challenged before the Supreme Court by Shri
Prakash Pillai. However, the same was withdrawn with a liberty to
approach the High Court for cancellation of bail.
16. Considering
above aspects of the matter and also considering that the petitioner
being a government servant is unlikely to jump the bail if released,
I am inclined to release him on bail on certain conditions. I have
also examined that even as per the charge sheet, none of the offences
alleged under the NDPS Act are those for which restrictions under
Section 37 of the Act for granting regular bail would apply.
17. It
is, however, clarified that ultimately if High Court in Criminal
Revision Application No.217 of 2010 passes any order, effectively
providing for or requiring a more serious charge, it would be open
for the prosecution to seek cancellation of this order.
18. In
totality of the facts and circumstances, the petitioner is ordered to
be released on bail in connection with C.R.No.II-37 of 2006 of Gorva
Police Station on furnishing bond of Rs.1,00,000/- (Rupees One
Lac only) with one surety of the like amount to the satisfaction of
the lower Court and on conditions that he shall :
[a] not
take undue advantage of his liberty or abuse his liberty;
[b] not
act in a manner injurious to the interest of the prosecution;
[c] maintain
law and order;
[d] mark
his presence before the Maninagar Police Station on every 1st
and 15th day of English Calender month between 11.00 a.m.
And 2 p.m .
[e] not
leave city of Ahmedabad without permission of the Sessions Judge
concerned;
[f] furnish
the address of his residence at the time of execution of the bond
and shall not change the residence without prior permission of this
Court;
[g] surrender
his passport, if any, to the Lower Court immediately.
19. If
breach of any of the above conditions is committed, the Sessions
Judge concerned will be free to take appropriate action in the
matter.
20. Bail
before the Lower Court having jurisdiction to try the case.
Rule
is made absolute. Direct service is permitted.
(Akil
Kureshi, J.)
*malek
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