Jayeshbhai Jerambhai Patel vs State Of Gujarat

A.S. Supehia, J

[1] Heard the learned advocates for the respective parties by video conferencing.

[2] RULE. Learned Additional Public Prosecutor waives service of notice of rule for and on behalf of respondent â€" State.

[3] By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in

connection with the FIR being C.R.No.III-274 of 2019 registered with Jafrabad Police Station, District Amreli for the offences under Sections 66(1)

(b), 65 (A)(E), 116(B), 98(2) and 81 of the Gujarat Prohibition Act, 2016.

[4] It is alleged by the prosecution that two accused were coming from Amreli to Jafrabad on a Bolero car being GJ-01-FT-4964 with liquor. The

police officers had cordoned that place, at that time the aforesaid vehicle ran away from the place, though the police officers tried to stop the vehicle.

It is further alleged that after the inquiry was made by the investigating officer, liquor of 288 bottles worth Rs. 86,400/- had found. Thereafter,

necessary panchnama was drawn and the liquor was seized by the police officers.

[5] Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation of the applicant at this stage is

not necessary. He further submits that the applicant will keep himself available during the course of investigation, as well as trial also and will not flee

from justice. He further submits that in the alleged offence, three of the co-accused, who were named in the FIR, namely Prakashbhai @ Radhe

Babubhai Shiyal in Criminal Misc. Application No. 14943 of 2019 on 05.08.2019, Masaribhai Babubhai Solanki in Criminal Misc. Application No.

24042 of 2019 on 10.01.2020 and Babiben Madhubhai Solanki in Criminal Misc. Application No. 14686 of 2019 on 01.08.2019, were granted

anticipatory bail by the Co-ordinate Bench of this Court. Therefore, on the ground of parity the present applicant may be released on anticipatory bail.

Learned advocate for the applicant has also submitted that none of the witness has identified the present applicant.

[5.1] It is submitted by the learned advocate that on 18.03.2021 the investigating officer has filed an affidavit opposing the application, however, in the

entire affidavit, the investigating officer has not mentioned any criminal antecedents against the applicant.

[5.2] Learned advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions, including imposition

of conditions with regard to powers of investigating agency to file an application before the competent Court for his remand. He further submits that

upon filing of such application by the investigating agency, the right of the applicant accused to oppose such application on merits may be kept open.

Learned advocate, therefore, submits that considering the above facts, the applicant may be granted bail.

[6] On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondentâ€" State has opposed grant of bail looking to

the nature and gravity of the offence.

[7] Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case,

nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant

bail to the applicant.

[8] This Court has considered following aspects;

(a) The applicant was not even named in the FIR;

(b) The main accused and the co-accused have been enlarged on bail by this Court

(c) No criminal antecedents has been pointed against the applicant.

(d) Prima facie, liquor is not found from the possession of the applicant.

[9] Looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant on the ground of parity.

[10] This Court has also taken into consideration the law laid down by the Apex Court in the case of Sushila Aggarwal vs. State (Nct of Delhi) , AIR

2020 SC 831.

[11] 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 FIR

being C.R.No.III- 274 of 2019 registered with Jafrabad Police Station, District Amreli on his executing a personal bond of Rs.10,000/- (Rupees Ten

Thousand Only) with one surety of like amount on the following conditions that he :

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

(b) shall remain present at the concerned Police Station on 21.06.2021, 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;

[12] Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he

considers it proper and just and the learned Magistrate would decide it on merits. The applicant shall remain present before the concerned Magistrate

on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be

sufficient to treat the accused in the judicial custody for the purpose of entertaining the 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 concerned

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 bail order.

[13] At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

[14] The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order

to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

[15] Learned advocate for the applicant is also permitted to send a copy of this order to the concerned authority/court through Fax message, email

and/or any other suitable electronic mode.