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CR.MA/1988/2011 3/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1988 of 2011
=========================================================
VIJAYSINH
CHANDRASINH PARMAR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
MR
PP MAJMUDAR for
Applicant(s) : 1,
MR AJ DESAI, ADDITIONAL PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 03/03/2011
ORAL
ORDER
This
application is filed under Section 439 of the Code of Criminal
Procedure in connection with First Information Report registered as
II-C.R. No.116/2010 with Vadodara Police Station, Vadodara (Rural)
for the offences punishable under Section 17 of Narcotic Drugs and
Psychotropic Substance Act, 1985.
It
is submitted that in view of the decision in the case of E.
Michael Raj Vs. Intelligence Officer, Narcotic Control Bureau
reported in (2008) 5 SCC 161 whereby the Supreme Court
considered certain criterion about determination of small or
commercial quantities in relation to the Narcotic Drugs or
Psychotropic substances in a mixture when one or more neutral
substances and relevance of weight of offending drug in the mixture.
It is held that as per the Central Government notification, the
quantity is to be considered when punishment is to be passed, on
content of the offending drug in the mixture and not on the weight
of the mixture as such.
Considering
the above, it is submitted that out of the total quantity of 850
grams of opium, the content of morphine at the most would be 13.44
mg and as per the notification of the Central Government, Item No.92
is about opium which prescribes 25 grams as small quantity and 2.5
Kgs as commercial quantity and Item No.77 morphine prescribes 5 gms
as small quantity and 250 grams as commercial quantity.
In
view of the above and the FSL Report, the applicant deserves bail
since punishment prescribed under the Act would not exceed more than
10 years and fine upto Rs.1,00,000/= in any case.
Considering
all the above facts, papers submitted alongwith the complaint and
the decision of the Trial Court, I am of the opinion that the case
of the applicant, prima-facie is based on the above decision of the
Apex Court in E. Michael Raj (supra), by imposing
suitable conditions, he is ordered to be enlarged on bail.
Having
heard learned Counsel for the parties and perusing the record of the
case and taking into consideration the facts of the case, nature of
allegations, role attributed to the applicant, by imposing suitable
conditions, I deem it just and proper to enlarge the applicant on
bail.
Learned
Counsels for the parties do not press for further reasoned order.
In
the facts and circumstances of the case, the application is allowed
and the applicant is ordered to be released on bail in connection
with First Information Report registered as II-C.R. No.116/2010 with
Vadodara Police Station, Vadodara (Rural), on executing a bond of
Rs.5,000/- (Rupees Five Thousand Only) with one surety of the like
amount to the satisfaction of the Trial Court and subject to the
conditions that he shall;
a)
not take undue advantage of liberty or misuse liberty;
b)
not act in a manner injurious to the interest of the prosecution;
c)
surrender passport, if any, to the lower court within a week;
d)
not leave the State of Gujarat without prior permission of the
Sessions Judge concerned;
e)
mark presence at the concerned Police Station on the first Sunday of
every month between 10.00 a.m. and 3.00 p.m. for three months only;
f)
furnish the present address of his residence to the Investigating
Officer and also to the Court at the time of execution of the bond
and shall not change the residence without prior permission of this
Court;
The
authorities will release the applicant only if not required in
connection with any other offence for the time being.
If
breach of any of the above conditions is committed, the Sessions
Judge concerned 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. Direct Service is permitted.
Sd/-
(Anant
S. Dave, J.)
Caroline
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