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CR.MA/1009420/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10094 of 2008
In
CRIMINAL
APPEAL No. 608 of 2007
====================================================
SHIVRAJSINH
RAMSINH CHAUHAN - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
====================================================
Appearance :
MS
REKHA H KAPADIA for Applicant(s) : 1,
MR LB DABHI, APP for
Respondent(s) : 1,
None for Respondent(s) :
2,
====================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 11/08/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.R.VORA)
Heard
ld.advocate Ms.Kapadia for the applicant and ld.APP Mr.Dabhi.
2. Rule,
waived by ld.APP Mr.Dabhi. The present applicant is convicted by
Additional Principal Judge, Court no.2, Ahmedabad City in (Special)
Sessions Case no.335/2004, whereby the present applicant came to be
convicted for the offences punishable under section 8(C) read with
section 20(B) 29 of the N.D.P.S. Act and has been sentenced to
undergo imprisonment of 10 years and to pay fine of Rs.1,00,000/-
along with other accused.
3. Criminal
Appeal filed by the present applicant original accused no.2 came
to be admitted by this Court on 07.12.2007 in Criminal
Misc.Application no.3385/2007 in Criminal Appeal no.608/2007 was
dismissed by reasoned order.
4. This
application is preferred by the applicant successively and it is
submitted that the applicant was arrested on 13.8.2004 and since then
he is in jail. The allegation, which is made against the applicant is
in respect of possession of ‘charas’ to the extent of 129 grams,
which is above the small quantity and below the commercial quantity.
It is also submitted that the accused has wife and minor son and
since he has completed 4 years of conviction, he should be released
on bail during the pendency of appeal.
5.
Having gone through the record and rival contentions, this is a case
wherein the applicant is convicted for the grave offence under the
NDPS Act, as stated above. The first application preferred by the
applicant has been dismissed by this Court with reasoned order and,
therefore, it is not open now to discuss the merits of the case. The
only changed circumstance, which is being advanced is that the
applicant is in jail for last 4 years. This could hardly be stated as
changed circumstance, to release the applicant on bail during
pendency of appeal, especially in view of section 37 of NDPS Act.
There are no other changed circumstances, which could be shown to
grant the application. Merely because the applicant has wife and
minor son, and merely because he has completed 4 years in jail, is
not the ground to release the accused, especially charged with
serious offence under the NDPS Act, on regular bail in subsequent
bail application and, therefore, this prayer for granting bail to the
applicant must be rejected. The alternate prayer is in respect to
expedite the Criminal Appeal for early hearing. In this regard, it
must be noted that there are many other accused languishing in jail,
who have filed their Criminal Appeals earlier to this applicant, and
there is no reason as to why super-priority should be given to this
applicant to take this appeal for final hearing and to dispose of the
same, causing injustice to other convicts who are in jail. However,
it will be open for the applicant to renew the request to notify the
appeal for final hearing after the paper-book is received.
6. In
view of the above, this application stands dismissed. Rule
discharged.
(J.R.
VORA, J.)
(J.C.
UPADHYAYA, J.)
(binoy)
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