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CR.MA/355/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 355 of 2011
In
CRIMINAL
APPEAL No. 2036 of 2009
=========================================================
IMAMSHAN
DAVALSHAH FAKIR, THRO'AMINABANU IMAMSHAH FAKIR - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MS
KRISHNA U MISHRA for
Applicant(s) : 1,
MR. LB DABHI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 24/01/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
1. Rule.
Mr. LB Dabhi, learned Addl. Public Prosecutor waives service of
notice of rule on behalf of the respondent – State of Gujarat.
2. Having
regard to the facts of the case, the application is taken up for
hearing today.
3. The
applicant – convict prisoner, who by judgment and order dated
12.8.2009 rendered in Sessions Case No.1 of 2008 by the learned
Additional Sessions Judge, Mehsana camp at Visnagar, has been
convicted for the offence punishable under Section 20(b) of the NDPS
Act and sentenced to RI for 10 years, has filed this application
praying to enlarge him on temporary bail for a period of two weeks,
to enable him to perform the marriage ceremony of his daughter which
is to be scheduled from 27.1.2011 to 30.1.2011.
4. We
have considered the submissions advanced by Ms. KU Mishra, learned
advocate for the applicant and Mr. LB Dabhi, learned Addl. Public
Prosecutor for the respondent – State of Gujarat. We have also
gone through the application and the supporting document i.e.
marriage invitation card of the daughter of the applicant that form
part of the application so also the jail remarks sheet forwarded by
the jail authority.
5. In
Dadu alias Tulsidas v. State of Maharashtra (2000) 8 SCC 437,
the Supreme Court has ruled that section
32-A of the NDPS Act is unconstitutional to the extent it takes away
right of the Court to suspend the sentence of a person convicted
under the Act. However, what is emphasized by the Supreme Court
in the said decision is that the appellate Court can suspend the
sentence imposed under the Act and that too strictly subject to
the conditions set out in section 37 of the Act. After the
conviction of the appellant under section 22 of the NDPS Act, it is
difficult to conclude at this stage that there are reasonable
grounds for believing that the appellant is not guilty of the
offence punishable under the NDPS Act. Further, there is no
material before the Court on the basis of which the Court can
satisfy itself that the appellant is not likely to commit any
offence while on temporary bail. Having regard to the principles
laid down by the Supreme Court in the above quoted decision, we are
of the opinion that the appellant cannot be enlarged on temporary
bail during the pendency and final hearing of the appeal.
Therefore, prayer for temporary bail deserves to be rejected.
6. At
this stage, Ms. KU Mishra, learned advocate for the applicant
submits that the applicant may be permitted to attend the marriage
ceremony of his daughter for two days i.e. on 29.1.2011 and
30.1.2011 with police surveillance at his expenses.
7. In
view of submission of Ms. KU Mishra, learned advocate for the
applicant, on humanitarian ground, since marriage of the daughter of
the applicant is going to be solemnized from 27.1.2011 to 30.1.2011,
we deem it expedient to release the applicant for two days i.e.
on 29.1.2011 and 30.1.2011 with police surveillance at
his expenses.
8. For
the foregoing reasons, the application fails and accordingly stands
rejected. Rule is discharged.
9. However,
the jail authority is directed to take the applicant – convict
prisoner – Imamshah Davalshah Fakir at the place of
marriage on 29.1.2011 and 30.1.2011 with police surveillance at his
expenses.
Direct
service is permitted.
(A.M.KAPADIA, J.)
shekhar/-
(BANKIM.N.MEHTA, J.)
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