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CR.MA/9019/2005 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9019 of 2005
In
CRIMINAL
APPEAL No. 1169 of 2003
==============================================================
MOHMED
TAKI MAHENDI AAGA - Applicant
Versus
STATE
OF GUJARAT & 1 ? Respondents.
==============================================================
Appearance
:
THROUGH
JAIL for Applicant :
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. Mohmed Taki Mahendi Aaga, undergoing
sentence of R.I. for ten years and fine of Rs. 1 Lac, in default,
R.I. for two years, for commission of offence punishable under
Section 20(b) of the N.D.P.S.Act, 1985, has prayed to enlarge him on
temporary bail for a period of 45 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 20(b) 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 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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