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Judgment
Ms. Sonia Gokani, J.—Both the Applicant have preferred this application u/s 439 of Code of Criminal Procedure for grant of regular bail in connection with First Information Report, being I-CR No. 01/2012 registered with Gandhidham B Division Police Station, District-Kutch under Sections 8C, 21, 29, of the NDPS Act. Learned advocate Mr. Patel appearing for the applicants urged that complaint against the applicants has been filed by Shri L.D. Vagadia, Police Inspector, SOG (East), Kutch on the basis of secret information received by him that one-Bhupendra Raghubhai Chudasma (co-accused) is in possession of narcotic substance Brown Sugar and is allegedly arrived at Kutch to sell the said contraband articles. Counsel submitted that nothing has been recovered or discovered from the present applicants, who are in jail in a case where less than commercial quantity-of Brown Sugar has been recovered from the co-accused. He further urges that there are no criminal antecedents of the applicant and therefore, applicant deserves to be enlarged on bail. He further urged that they are also urging this on the ground of parity as co-accused Yograjsinh has been granted regular bail. No evidence worth the name is there on the papers of charge sheet, he urged.
Learned APP appearing for the State confirms that the charge-sheet has been filed and no custodial interrogation is required as no further investigation is desirable. He however urged that applicants are from the neighbouring state and their availability throughout the trial may not be possible unless stringent conditions are imposed.
Learned APP, Mr. Nanavati also further submitted that it is the case of the prosecution that when the Brown Sugar was being carried from Madhya Pradesh to Gujarat, enroute, shelter was provided to these applicants by the co-accused Yograjsinh who is enlarged on bail. He however, confirmed that there are no criminal antecedents of the present applicants.
On having thus considered the submissions of both the sides, it appears that statement of the co-accused is essentially the evidence qua present applicants and as indicated by both the sides, statements said to have been recorded are not u/s 67 of the NDPS Act. The prosecution has relied on this evidence for the purpose of connecting the present applicant, prima-facie. In these circumstances, when the investigation is over and learned advocate has ensured that best of the security shall be offered to ensure their presence and availability at the time of trial, this Court is inclined to grant regular bail to the present applicant. Care is being taken by placing stringent condition as the applicant belong to a neighboring state as provided in the case of Sanjay Alias Bablu Alias Keja reported in 2003 SCC (Cri) 1534. Accordingly, this Application stands allowed. Applicant is ordered to be released on bail in connection with I-CR No. 01/2012 registered with Gandhidham B Division Station, District-Kutch on executing a bond of Rs. 30,000/-(rupees thirty thousands only) with two solvent sureties of the like amount, (one local surety and another surety of any family member, who has agricultural land) to the satisfaction of the trial Court and subject to the conditions, that he shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week;
(d) not leave India without prior permission of the Sessions Judge concerned;
(e) mark presences at the concerned police station on every fortnight till the trial begins.
(f) furnish the present address of residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
(g) abide by the condition that if he is unable to be present in the trial court on any day, an application on his behalf shall be filed by a counsel who should be present in the Court. In the application he must state unconditionally that he will not dispute his identity as an accused in the case and that he has no objection for the trial to proceed even in his absence. Without conforming to this condition if he is absenting himself on any posting date it is open to the trial court to cancel the bail granted to him.
Jail authorities will release the applicant only if not required in connection with any other offence for the time being.
If breach of any of the above conditions is committed, the trial Court concerned will be free to issue warrant or take appropriate action in the matter.
Bail bond to be executed before the lower court having jurisdiction to try the case.
For modification and/or deletion of any of the conditions herein above, the applicants will be at liberty to approach the concerned Court and such Court shall decide the application for modification and/or deletion of any of the conditions of this order in accordance with law.
At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
Rule is made absolute to the aforesaid extent. Direct service is permitted.