Ilyash Abdulgani Dahya vs State Of Gujarat

Gita Gopi, J

Rule. Mr. Pranav Trivedi, learned Additional Public Prosecutor, waives service of notice of rule on behalf of respondent-State.

This application has been preferred under section 438 of the Code of Criminal Procedure seeking anticipatory bail in connection with the first

information report being III-C.R. No. 90 of 2015 registered with Limdi Police Station, District : Dahod for the offences punishable under sections

66(1)B, 65(A) (E) and 81 of the Prohibition Act.

Mr. A.A. Zabuawala, learned advocate for the applicant, submitted that the vehicle-in-question, which has been used in transporting illicit liquor has

already been sold by the present applicant to Muniya Kamleshkumar Lalsingbhai. The present applicant has been shown in column no.2 of the

chargesheet but referring to the previous matters, Mr. Zabuawala stated that the applicant was regularly attending the trial and thus, cannot be

considered as absconder. Mr. Zabuawala, referring to the judgment dated 12.02.2018 declared in C.C. No.637 of 2017 by the Chief Judicial

Magistrate First Class, Zalod, submitted that the Head-Constable Babubhai Bhudarbhai evidence was recorded and except Kamleshbhai, he could not

recognize any other person and his evidence also shows that his eye-sight was weak and was without spectacles at the time of incident. Mr.

Zabuawala, further submitted that Head-Constable Babubhai Bhudarbhai had identified Kamlesh Lalsing Muniya, to whom the present applicant had

already sold his vehicle by agreement to sell dated 01.10.2014. All the criminal antecedents are not of recent past thus, prayed for anticipatory bail.

Mr. Pranav Trivedi, learned Additional Public Prosecutor, submitted that agreement to sell of the vehicle could not be considered because

necessary entry in RTO has not been made. Mr. Trivedi, further submitted that there are criminal antecedents against the present applicant and thus,

no discretion should be exercised in favour of the present applicant.

Countering the same, Mr. Zabuawala, learned advocate for the applicant, submitted that in all there were four cases on record, the applicant has

received acquittal in three cases and one of the matter of 2012, which had ended up in acquittal, but because of present lockdown, the applicant could

not get the copy of the judgment.

Heard the learned advocates for the parties and perused the material on record. Taking into consideration judgment declared in C.C. No.637 of

2017 and the vehicle sold to Muniya Kamleshkumar Lalsingbhai by agreement to sell on 01.10.2014 and to the fact of present FIR-in-question,

discretion is required to be exercised in favour of the present applicant.

This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs.

State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution

Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565.

In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with the first

information report being III- C.R. No. 90 of 2015 registered with Limdi Police Station, District : Dahod on executing a personal bond of Rs.10,000/-

(Rupees Ten Thousand Only) with one surety of like amount on the following conditions:

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 26.08.2020 between 11.00 a.m. and 2.00 p.m.;

(c) shall 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 to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till

the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial

court within a week; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would

decide it on merits;

Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicant. The

applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be

directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of

the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if,

ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even

if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this

anticipatory bail order.

At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Rule is made

absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email

forthwith.