Shatrubha Dilubha Zala vs State Of Gujarat

Ashutosh J. Shastri, J

Rule. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent â€" State.

1.0 Present application is filed under Section 438 of the Code of Criminal Procedure seeking Anticipatory Bail as the applicants are apprehending

arrest in connection F.I.R. bearing III-C.R.No.79 of 2019 registered with Zinzuwada Police Station for the alleged offences punishable under Sections

65A, 65E, 116B and 81 of the Prohibition Act.

2.0 Heard, learned advocate for the applicants as well as learned Additional Public Prosecutor Mr.J.K.Shah.

3.0 Mr.Zubin Bharda, learned advocate appearing with Mr.D.K.Patel, learned advocate for the applicants, has submitted that the applicants are

innocent persons and have wrongly been arraigned in the prosecution. It has further been submitted that nothing incriminating is found or revealed

during the course of investigation so far and in addition thereto, it has been submitted that co-accused persons have already been granted anticipatory

bail in this very case. It has further been submitted that co-accused persons were also having past antecedents and still, the Cooordinate Bench has

considered the release of those accused persons and as such, on the principle of parity as well, the case of the present applicants be considered by

imposing suitable conditions. Learned advocate has relied upon the decisions delivered by the Coordinate Bench rendered in CR.MA Nos.2346 of

2019 and 1341 of 2020, dated 8.1.2020 and 22.1.2020 respectively which are very much part of the record. Hence, Mr.Bharada, learned advocate,

has submitted that since there is nothing incriminating found and in the field, nobody ws found, in this peculiar background of fact, a request is made to

grant anticipatory bail to the applicants.

4.0 As against this, Mr.J.K.Shah, learned APP, has submitted that this is a serious offence in which the applicants are involved themselves and the

huge quantity of liquor was found. However, the learned APP could not withstand to the circumstance that co-accused persons in this very FIR have

been granted anticipatory bail and as such, left it to the discretion of the Court. Additionally, pursuant to the previous accommodation having sought by

the learned APP to obtain necessary instructions with regard to the antecedents of other co-accused, the learned APP has placed on record the report

(scanned copy) in which the co-accused persons were also having criminal antecedents of this very nature and still, have been enlarged on

anticipatory bail and as such, has candidly submitted that there is no distinguishable material against the applicants and ultimately, has left it to the

discretion of the Court.

5.0 Having regard to the facts and circumstances of the case and having gone through overall material on record, prima facie, it appears from the

document attached to the application that co-accused persons, who have been granted anticipatory bail, were also having criminal antecedents and

further fact that nothing incriminating found from the record so far against the present applicants. Hence, without much examining the evidence of

material on record, the Court is inclined to adopt the same view which the Coordinate Bench has adopted in the aforesaid orders which are part of the

record reflecting on page-29 and 33 of the application compilation.

6.0 This Court has also taken into consideration the law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre v. State of

Maharashtra & Ors. reported in [2011] 1 SCC 694, wherein, the Apex Court reiterated the law laid down by the Constitutional Bench in the case of

Shri Gurubaksh Singh Sibbia & Ors. reported in [1980] 2 SCC 565.

7.0 Learned Counsel for the parties do not press for further reasoned order.

8.0 In the result, this application is allowed. It is directed that, in the event, the applicants herein are arrested pursuant to F.I.R. bearing III-C.R.No.79

of 2019 registered with Zinzuwada Police Station, the applicants shall be released on bail on furnishing a bond of Rs.10,000/- (Rupees Ten Thousand

only) each with one surety of like amount on following conditions :-

[a] shall cooperate with the investigation and make himself available for interrogation whenever required;

[b] shall remain present at concerned Police Station on 18th August,2020 between 11.00 am to 2.00 pm;

[c] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any witness so as to

dissuade them from disclosing such facts to the Court or to any Police Officer;

[d] shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence

till the final disposal of the case or till further orders;

[e] will not leave India without the permission of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately.

[f] It would be open to the Investigating Officer to file an application for remand, if he considers it just and proper and the concerned Magistrate

would decide it on merits.

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

applicants 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 applicants, 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.

10.0 Rule is made absolute to the aforesaid extent.

11.0 The Registry is directed to communicate this order by fax or e-mail to the trial court.