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CR.MA/9032/2010 2/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9032 of 2010
In
CRIMINAL
APPEAL No. 1029 of 2010
=========================================================
AALAM
HUSSAIN S/O TARIKULLAM SHEKH & 3 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
JASPALSINGH SODHI for MR JAGDISH M CHAUHAN
for
Applicants : 1 - 4.
MR LB DABHI, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 25/08/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
RULE.
Mr.L.B.Dabhi, learned APP appears and waives service of notice of
rule on behalf of the respondent State of Gujarat.
Having
regard to the facts of the case, the application is taken up for
hearing today.
By
instant Application filed under Section 5 of the Limitation Act,
1963 (‘Act’, for short), the applicants have prayed to condone the
delay of 28 days caused in filing the above-numbered Criminal
Appeal, which is directed against the judgment and order dated 30th
March 2010 rendered in N.D.P.S. Case No.10/2003 by the learned
Special Judge and Additional Sessions Judge (N.D.P.S.), Surat, by
which the applicants (original accused nos.2,3,4 and 5) came to be
convicted for the offences under Section 22 of the Narcotics and
Psychotropic Substances Act and sentenced to suffer rigorous
imprisonment for 20 years and fine of Rs.2 lakhs each and in default
of payment of fine, to further suffer rigorous imprisonment for one
year.
The
reasons as to why the Appeal could not be filed in time are detailed
in paragraphs 2, 3 and 4 of the Application. It is stated in the
application that the applicants belong to very poor family and they
are the only bread-earner and because of their long incarceration in
the jail their families had gone hand to mouth and were badly
financially broken and, therefore, they could not arrange for money
for filing the appeal in the high court in time. Beside this, they
were also not aware about the limitation for filing the appeal and
they were ignorant about the law. Thereafter, they could manage the
funds and contacted the advocate to file the appeal. In the said
process, considerable time has been consumed. It is, therefore,
prayed to condone the delay.
Having
heard Mr.Jaspalsingh Sodhi, learned advocate for the applicants,
Mr.L.B.Dabhi, learned APP for the respondent State of Gujarat
and upon perusal of the averments made in the Application, which
have remained uncontroverted and the celebrated principles governing
the discretionary exercise of power conferred under Section 5 of the
Act, so also the reported decisions of the Hon’ble Supreme Court
construing Section 5 of the Act liberally, we are of the considered
opinion that the applicants have aptly, elaborately and sufficiently
explained the delay caused in filing the above numbered Criminal
Appeal. There was no negligence or inaction on the part of the
applicants in prosecuting the Appeal. The explanation offered by the
applicants for condonation of delay is not only plausible, but
acceptable.
In
view of the aforesaid, according to us, this application deserves to
be allowed by condoning the delay as prayed for.
For
the foregoing reasons, the Application succeeds and accordingly it
is allowed. The delay of 28 days caused in filing the above-numbered
Criminal Appeal is condoned. Rule is made absolute.
(A.M.Kapadia,
J.)
(J.C.Upadhyaya,
J.)
/moin
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