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CR.MA/1114/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1114 of 2011
=========================================================
RASSUBHAI
THAVARIA MUNIYA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
TEJAS M BAROT for
Applicant(s) : 1,
MS CM SHAH, ADDL.PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 04/03/2011
ORAL
ORDER
Heard
Mr.Tejas Barot, learned counsel for the applicant and Ms.Shah,
learned APP representing the respondent State.
The
present application is filed by the applicant u/s.439 of the Cr.P.C.
for releasing him on regular bail in connection with C.R.No.II 3092
of 2010 registered with Godhra railway police station for the
offences punishable u/ss.8(C), 15 and 29 of the Narcotic Drugs and
Psychotropic Substances Act (hereinafter referred to as ‘the Act’).
Mr.Barot,
learned counsel for the applicant states that the applicants is
innocent and he was falsely involved in this case. That the
applicant is poor person and he was travelling for the purpose of
getting labour work. It is further submitted that the similarly
situated co-accused, namely, Mangilal Badiyabhai Bhuriya was
released on regular bail by this Court vide order dated 25.2.2011 in
Criminal Misc.Application No.1613 of 2011. It is submitted that as
per the prosecution case about 44 Kgs. of Poppy Pod/Poppy Straw came
to be seized from the co-accused Mangilal and while releasing
Mangilal on bail, this Court observed that the quantity of allegedly
contraband article seized from Mangilal did not fall within the
purview of commercial quantity. It is submitted that so far as the
instant case of applicant Rassubhai Thavaria Muniya is concerned, as
per the prosecution case, the allegedly contraband quantity seized
from him comes to 22.183 kgs. i.e. half the quantity than what was
seized from Mangilal. It is, therefore, submitted that the allegedly
contraband article seized from the applicant – Rassubhai
cannot be said to be commercial quantity. It is, therefore,
submitted that since the allegations levelled against the applicant
and co-accused Mangilal and the alleged role played by them is
identical, the applicant – Rassubhai may be released on bail
on the same line as co-accused Mangilal has been released.
Per
contra, Ms.C.M.Shah, learned APP vehemently opposed this application
and stated that the applicant is involved in a very serious offence
under the Act. Mere fact that less than commercial quantity of
contraband is seized from the person of the applicant, that itself
would not be sufficient to grant bail in his favour. It is further
submitted that before the chargesheet, applicant had filed bail
application and, therefore, the instant bail application may not be
allowed.
Having
considered the submissions advanced on behalf of both the sides and
perusing the relevant papers, so also considering the order dated
25.2.2011 passed by this Court in Criminal Misc.Application No.1613
of 2011, releasing the co-accused Mangilal Bhuriya on bail, this
Court is of the opinion that the applicant herein Rassubhai, who is
almost identically situated accused, should be released on regular
bail u/s.439 of the Cr.P.C. So far as the earlier application being
Cr.M.A.No.11722 of 2010 preferred by this applicant seeking regular
bail is concerned, vide order dated 21.10.2010, this Court had
permitted the applicant to withdraw the said bail application
specifically reserving liberty of the applicant to move for bail
before the concerned Sessions Court after the chargesheet is filed.
Under such circumstances, when the first bail application was
preferred before chargesheet and same came to be withdrawn reserving
the liberty to move for bail after the chargesheet is filed, the
mere fact that earlier bail application was not pressed shall not
come in way of the applicant. Moreover, the earlier bail application
cam to be withdrawn conditionally on 21.10.2010 whereas the
similarly situated co-accused came to be released by this Court on
25.2.2011, which event is pressed into service as change of
circumstance.
Considering
the submissions made on behalf of the parties and having regard to
the facts and circumstances of the case, the application is allowed
and applicant is ordered to be released on bail in connection with
II-CR No.3092 of 2010 registered with Godhra Railway Police Station
for the offences alleged against him in this application on his
executing a bond of Rs.10,000/- (Rupees Ten Thousand Only) with one
solvent surety of the like amount to the satisfaction of the lower
Court and subject to the
conditions that he shall,
(I) not take undue
advantage of his liberty or abuse his liberty;
(ii) not act in a manner
injurious to the prosecution;
(iii) not leave the
local limits of State of Gujarat without the prior permission of
the concerned Sessions Judge;
(iv) mark
his presence before the Investigating Officer on every 15th
day of the calender month between 09:00 a.m. to 02:00 p.m.;
(v) Surrender his
passport, if any, to the lower Court within a week;
(vi) furnish the present
address of residence to the Investigating Officer as well as to the
Court at the time of furnishing bond and shall not change his
residence till further orders;
(vii) maintain
law and order;
The Authority will
release the applicant only if he is not required in connection with
any other offence for the time being.
If
breach of any of the above conditions is committed,
the concerned Sessions Judge will be free to issue warrant or take
appropriate action in the matter.
Bail bond to be
executed before the lower Court having jurisdiction to try the case.
At the trial, the trial
Court shall not be influenced by the observations of preliminary
nature, qua the evidence at this stage, made by this Court while
enlarging the applicant on bail. Rule is made absolute to the
aforesaid extent.
Direct Service is
permitted.
(J.C.UPADHYAYA,
J.)
(binoy)
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