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2022 DIGILAW 233 (GUJ)

Salimsha v. State of Gujarat

2022-02-08

ASHOKKUMAR C.JOSHI

body2022
JUDGMENT : Ashokkumar C. Joshi, J.:-- 1. This Application is filed by the Applicant - Accused under Section 439 of the Code of Criminal Procedure for enlarging the applicant on Regular Bail in connection with C.R. No. I-11196007210617 OF 2021 registered with Gorva Police Station, District: Vadodara City for the offences punishable under Sections 8(C), 20(b) and 29 of the N.D.P.S. Act. 2. Heard learned Advocate Mr. M.R. Yagnik for the applicant and learned APP Ms. Moxa Thakkar for the Respondent-State through Video Conference. Submission of the Parties: 3. Learned Advocate for the applicant has submitted that the applicant is innocent as he has not taken part in the offence as alleged. He has family roots in the society and therefore, he is not likely to fee away from justice. That he will abide by whatever conditions imposed by the Hon'ble Court. That the charge sheet is filed. He further submitted that the other co-accused have already been enlarged by the co-ordinate bench of this Court vide orders dated 29.11.2021 and 05.01.2022 passed in Criminal Misc. Application No. 18572 of 2021 and Criminal Misc. Application No. 19434 of 2021, therefore prayed that discretion may kindly be exercised and grant bail to the Applicant Accused. 4. Per contra, learned APP has vehemently opposed the bail application and she has drawn the attention of this Court that the role attributed to the present applicant is to some extent is greater on the aspect that present applicant is a supplier, whereas the co-accused is receiver with whom the quantity is seized and therefore, to that extent that the role is different and further the present applicant is registered with one more offence within six months, therefore, discretion may not be exercised. Merits of the Case: 5. This court has considered the following aspects: (a) That in the present case it is an admitted fact that the Applicant accused has come for this application after the charged sheet is filed. (b) Further as per catena of decisions of Hon'ble Supreme Court, there are mainly 3 factors which are required to be considered by this court i.e. prima facie case, availability of Applicant accused at the time of trial and tampering and hampering with the witnesses by the accused. (c) Role attributed to the present applicant is of intermediate quantity. (d) Only one antecedent is reported against the present applicant. (c) Role attributed to the present applicant is of intermediate quantity. (d) Only one antecedent is reported against the present applicant. (e) Co-accused vide orders dated 29.11.2021 and 05.01.2022 in Criminal Misc. Application No. 19434 of 2021 and Criminal Misc. Application No. 18572 of 2021 have already been enlarged by the co-ordinate bench of this Court, whether the applicant is supplier or receiver but to some extent role is not greater and therefore, this is a fit case to apply the doctrine of parity. (f) That the learned Advocate for the Applicant has submitted that the Applicant Accused is not likely to fee away. (g) That the Applicant Accused is in custody since 08.07.2021. (h) The law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I. Reported in (2012) 1 SCC 40 , wherein it is held that bail is a rule and jail is an exception. 6. Having heard the learned advocates for the parties and perusing the record produced in this case as well as taking into consideration the facts of the case, nature of allegations, gravity of accusation, availability of the Applicant Accused at the time of Trial etc. and the role attributed to the present Applicant accused, the present Application deserves to be allowed and accordingly stands allowed. The Applicant Accused - SALIMSHA @ ARJUN AKBARSHA DIWAN is ordered to be released on regular bail in connection with the aforesaid FIR upon executing a personal bond of Rs. 25,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that he shall: (a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence. (b) maintain law and order and not to indulge in any criminal activities. (c) furnish the documentary proof of complete, correct and present address of his residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not change his residence without prior permission of the trial Court. (d) provide his contact numbers as well as the contact numbers of the sureties before the Trial Court. (d) provide his contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court. (e) file an affidavit stating his immovable properties whether self acquired or ancestral with description, location and present value of such properties before the Trial Court, if any. (f) not leave India without prior permission of the Trial Court (g) surrender passport, if any, to the Trial Court within a week. If he does not possess passport, he shall file an Affidavit to that effect. (h) mark presence at the concerned police station between 11:00 am to 1:00 pm on every 1st day of English Calender month for a period of one year or till the conclusion of trial, whichever is earlier. (i) shall maintain all the rules and regulations framed by the Municipality regarding contemporary status of corona virus/Covid-19, State Government or by any competent authority, including social distancing. 7. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to furnish the solvency certificate if prayed for. 8. If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The Authorities will release the Applicant forthwith only if he is not required in connection with any other offence for the time being. 9. Rule is made absolute. The Registry is directed to communicate this order by Fax/by E-mail to the concerned Court/Authority.