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2014 DIGILAW 453 (GUJ)

Tullu @ Kaiu Amar Goud v. State of Gujarat

2014-03-28

SONIA GOKANI

body2014
ORDER : 1. This Criminal Misc. Application preferred under Section 439 Cr.P.C. has been preferred by the applicant, who is accused of committing offences under Section 20 (B) of the N.D.P.S. Act, registered at Varachha Police Station, Surat being III-C.R. No. 522 of 2012. 2. Learned advocate Shri B.C. Dave appearing for the applicant has fervently urged that the applicant is found to be in possession of Ganja, which is less than the commercial quantity prescribed under the law. He urged that this Court has granted, in such cases, regular bail to the concerned accused persons. He has also sought to rely upon one such order passed in Criminal Misc. Application No. 146 of 2012 rendered in case of Rajendra Golak Parida vs. State of Gujarat, decided by this Court (Coram : M.D. Shah, J.) on 23rd January 2012. He also urged further that the present applicant though belong to Orissa, but since last many years, he is residing at Surat and to support his say affidavits of his brother and uncle are brought on the record of this Application. He has relied on the decision of the Apex Court to indicate that his client being from other State must not preclude the Court from granting him bail. 3. Learned APP Shri R.C. Kodekar appearing for the respondent-State has objected to grant of this Application on the ground that in every matter, the Court cannot rely on its earlier orders as the circumstances of each case are different and shall have to be considered in light of the offence alleged. He has expressed his concern for applicant not being available at the time of trial, as the accused is permanent resident of Orissa. He pointed out that the applicant resides in a slum area, which is also indicative of the fact that he has no permanent abode at Surat and securing his presence at the time of trial would be a herculean task. 4. Upon hearing both the sides and considering the material on record, this application is rejected for the following reasons: (1) As can be noted from the papers of investigation, the applicant has been arrested for being in possession of Ganja weighing 10 Kg and 650 grams. He is also alleged to have committed offence under the NDPS Act. 4. Upon hearing both the sides and considering the material on record, this application is rejected for the following reasons: (1) As can be noted from the papers of investigation, the applicant has been arrested for being in possession of Ganja weighing 10 Kg and 650 grams. He is also alleged to have committed offence under the NDPS Act. Although, it is pleaded by the learned advocate that he originally belongs to Orissa but continues to reside in Surat for more than 5-6 years, the statements collected by the Investigating Officer pursuant to filing of this bail application indicates that he has recently started residing at Surat from last 10 months only and in absence of there being any concrete proof of his residence, the concern expressed by learned APP of his availability at the time of trial is well founded -though brother and uncle of the applicant have filed their affidavits to the effect that the applicant resides in Surat for the past 5-6 years. (2) This application also is not being considered as one of the chief considerations of the Court at the time of grant of bail is to secure presence of the applicant. Although the case laws or precedence would have its own importance at the time of considering bail application, facts of each case will have vital importance when the Court exercises its discretion. Having failed to satisfy the conscience of the Court with regard to availability of the accused at the time of trial, which is likely to began soon, this application deserves no consideration and the same accordingly is rejected. 5. Rule nisi stands discharged with no order as to costs. Direct service is permitted. Application dismissed.