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2006 DIGILAW 197 (BOM)

MIRZA ILYAS BAIG MIRZA SHARIF v. STATE OF MAHARASHTRA

2006-02-14

B.R.GAVAI

body2006
( 1 ) THIS is an application for setting aside the order dated 23-1-2006 passed by Additional Sessions Judge below Exh. 7 in Sessions Case no. 75/2005 by which the bail granted earlier to the applicant came to be cancelled, and for directions to release the applicant on bail in connection with crime No. 8/2005 of Shrirampur Taluka Police Station. ( 2 ) THE applicant was arrested in connection with Crime No. II-8/2005 for the offences punishable under sections 20 (B) of N. D. P. S. Act and section 273 of indian Penal Code and under section 7 (1) read with 16 (l) (a) and 16 (l) (b) of prevention of Food Adulteration Act. It is the prosecution case that the applicant, along with two other accused were carrying contraband articles like Ganja, Gutka etc. in a Qualis vehicle and accordingly they were apprehended and they were found in possession of 2 1/2 kg. ganja and some packets of Gutka. ( 3 ) THE applicant came to be released on bail on 20-8-2005 by the order of the Sessions Judge. ( 4 ) IT appears that thereafter a complaints came to be lodged by one Tanhaji sahebrao Aaher on 19-12-2005 and by Prakash Vishwanath Bankar on 20-12- 2005 to the Investigating Officer stating that they received threats from the accused persons that they should not go to the Court for giving evidence against the accused persons else they would finish them in the Court itself. Immediately, on 20-12-2005, a report was filed before the learned Sessions Judge on the basis of said complaints, seeking for cancellation of the bail granted to the present applicant. ( 5 ) THE learned Sessions Judge, after considering the rival submissions, vide order date 23-1-2006, cancelled the bail in so far as present applicant is concerned and rejected the application of the prosecution in so far as other two accused are concerned. ( 6 ) IT will not be out of place to state here that learned Additional Sessions judge has passed the order only on the basis of conjectures and surmises. When liberty is granted to the citizen, it should not be taken away unless there is sufficient material against him. So also, the Court entertaining the matter should have cautious approach. Only on the basis of allegation made by panch witnesses, Investigating Officer applied to the Court for cancellation of bail. When liberty is granted to the citizen, it should not be taken away unless there is sufficient material against him. So also, the Court entertaining the matter should have cautious approach. Only on the basis of allegation made by panch witnesses, Investigating Officer applied to the Court for cancellation of bail. The investigating Officer did not take care to find out as to whether there was any basis in the allegations made by the said witnesses. At least what the investigating Officer could do, was to get record of mobile phone of said panch witnesses and present applicant so as to tally whether in fact there were telephone calls from the present applicant to the complainant. However, without taking any such efforts, on the bare allegations of said panch witnesses, the Investigating officer moved the Sessions Court for cancellation of bail granted to the applicant. ( 7 ) FROM perusal of the complaints it appears that the allegation is that after fifteen days of the execution of the panchanama, threats were received. The panchanama is alleged to have drawn on 26-7-2005. Therefore, the alleged period of threats is somewhere in the 2nd week of August, 2005. The complaint is lodged on 19th December, 2005. No justification is given as to why the said complainant was sitting idle for a period of about four months. ( 8 ) HOWEVER, without taking into consideration all these aspects, learned sessions Judge has cancelled the bail on the ground that there is no reason as to why the panch witnesses should make false statement. The learned Sessions judge has also gone into unnecessary aspects of the matter, viz. the crime was committed in Qualis vehicle. In my view, the considerations which are relevant for cancellation of bail are not at all borne out from the impugned order. The impugned order appears to have been passed only on the basis of allegations made in the complaint and the report of the Police Officer even without considering the say given by the present applicant. As pointed out hereinabove, learned Sessions Judge ought to have given conscious thought to the submissions made by the applicant and should have been more cautious in dealing with such matter wherein bail granted was sought to be cancelled. I have no hesitation in observing that the Investigating Officer so also the learned Sessions Judge have acted in mechanical manner. As pointed out hereinabove, learned Sessions Judge ought to have given conscious thought to the submissions made by the applicant and should have been more cautious in dealing with such matter wherein bail granted was sought to be cancelled. I have no hesitation in observing that the Investigating Officer so also the learned Sessions Judge have acted in mechanical manner. ( 9 ) IN that view of the matter, the impugned order is liable to be quashed and set aside. The impugned order dated 23-1-2006 in so far as it relates to cancellation of bail of the present applicant is concerned, is hereby quashed and set aside. The applicant is directed to be released on bail on his furnishing bail bond in the sum of Rs. 10,000/- with one surety in the like amount. Order accordingly.