Gujarat High Court Case Information System
Print
CR.MA/8824/2005 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8824 of 2005
In
CRIMINAL
APPEAL No. 1619 of 2005
==============================================================
YASMINBEN
HARUNBHAI QURESHI - Applicant
Versus
STATE
OF GUJARAT - Respondent
==============================================================
Appearance
:
MR
EE SAIYED for
Applicant(s) : 1,MR SIKANDER SAIYED for Applicant(s) : 1,
MR ND
GOHIL, A.P.P. for
Respondent
==================================================================
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
filing this application under Section 389(1) of the Code of Criminal
Procedure,1973, the applicant, who is convicted under Section 21 of
the N.D.P.S.Act, 1985 and sentenced to suffer R.I. for ten years and
fine of Rs. 1 Lac, in default, R.I. for two years vide judgment dated
June 2, 2005, rendered by the learned Additional Sessions Judge, 6th
Fast Track Court, Rajkot, in N.D.P.S.Sessions Case No.4 of 2004, has
prayed to enlarge him on bail, during the pendency and final dispoal
of Criminal Appeal No.1619 of 2005 filed by her.
3. Heard
the learned counsels of the parties. 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 she is charged and further that
she is not likely to commit any offence while on bail. In view of
conviction of the applicant under section 21 of the N.D.P.S.Act, it
is difficult for this Court to conclude that the applicant 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 applicant 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 regular 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)
Top