Jigneshkumar Balubhai Patel vs State Of Gujarat

A.S. Supehia, J

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

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

[3] The brief facts of the case are as under:-

[3.1] It is the case of the complainant that the complainant was in patrolling in a private vehicle and has received a secret information that through one

white coloured Ashok Leyland Truck bearing registration No.MH-15-GV-0535 is likely to travel from Daman to Ankleshwar transporting liquor and

upon such secret information, the police has stopped the said vehicle near Parnera Chanwai Bridge and upon search of the said vehicle the driver was

found with liquor.

[3.2] Subsequently, the accused, who was arrested, i.e. driver of the said vehicle, Mr.Satish Udhavrav Bhurke was released on regular bail by the

order dated 22.03.2021 passed in Criminal Misc. Application No.144 of 2021 by the Sessions Judge, Valsad.

[3.3] Thereafter, the present applicant preferred an application seeking bail under section 438 of the Code of Criminal Procedure, 1973 being Criminal

Misc. Application No.164 of 2021 before the Sessions Judge, Valsad, which was rejected vide order dated 02.04.2021.

[4] 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.11200011210498 of 2021 registered with Valsad Rural Police Station, District Valsad for the offences under

Sections 65(A), 65(E), 81 and 98(2) of the Gujarat Prohibition Act.

[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 the applicant is not even named in the FIR. He submits that the arrested accused alleged to have stated that the

present applicant got loaded the prohibited liquor and therefore, even if the whole case of the complainant is taken in toto, no custodial interrogation of

the present applicant is required for recovery or discovery. He submits that the co-accused, who alleged to have been found in possession of the

prohibited liquor and vehicle, has been enlarged on bail by the Sessions Court. He submits that the Coordinate Bench of this Court in Criminal Misc.

Application No.3005 of 2021 has allowed the application under the provisions of Section 438 of the Code of Criminal Procedure, 1973 allowed the

same vide order dated 17.02.2021.

[6] 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.

[7] 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.

[8] 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.

[9] This Court has considered following aspects;

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

(b) The co-accused, who alleged to have been found in possession of the prohibited liquor and vehicle, has been enlarged on bail by the Sessions

Court;

(c) The custodial interrogation of the applicant is not required.

[10] This Court has also taken into consideration the decision of 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.11215035200937 of 2020 registered with Umreth Police Station, District Anand 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 16.06.2021 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 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.