Shivlal Mangilal Mewada vs State Of Gujarat

Ilesh J. Vora, J

Rule. Learned APP waives Rule for the Respondent State.

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant -accused has prayed for anticipatory

bail in connection with the FIR being C.R. No. II-278/2006 registered with Palanpur City Police Station, Dist. Banaskantha, for the offences under

Sections 15, 26 and 29 of the NDPS Act.

Learned advocate for the applicant submits that the applicant is innocent and he has been falsely implicated in the alleged offence. None of the

alleged offences are attracted. In such circumstances, custodial interrogation of the applicant is not essential for the purpose of investigation.

Learned Additional Public Prosecutor appearing on behalf of the respondent â€" State has opposed grant of anticipatory bail stating inter alia that

the allegations against the applicant are grave and serious in nature and custodial interrogation is necessary for further investigation of the case.

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

appears that pursuant to the FIR, charge-sheet came to be filed against the main accused Fulgiri and one Omprakash, who was the employee of the

applicant, whereas, present applicant has been shown as absconding in column No.2 of counter of the charge-sheet. The accused Fulgiri had been

convicted by the Sessions Court for a period of 7 years imprisonment and in the appeal, it has been reduced upto 4 years imprisonment, whereas, the

co-accused Omprakash acquitted by the Sessions court. It is true that since 2006 to 2021, Investigating Officer could not arrest the present applicant,

however, record indicates that the applicant has never served with the summons or warrant and was doing his business of selling poppy-straw under

the valid license. The authority has seized all the documents from the concerned office. It is pertinent to note that vide order dated 20.07.2006,

coordinate Bench of this Court in the bail application of co-accused Omprakash observed that “The investigating Officer is present wit the record

of the case. There is no material to show that the offending article was sold by the applicant to said Fulgiri. The shop in which the applicant is working

is authorized shop for Bhang and poppy straw. It is situated at Abu Road. Further there is no incriminating evidence to the effect that the quantity that

was sold to said Fulgiri was in excess to the quantity permissible under the license, the applicant cannot be held responsible even at this stage for

committing offences under the NDPS Act.†In this background facts, it cannot be said that the applicant is avoiding warrant under Section 70 of the

Cr.P.C. The applicant has not been declared as proclaimed offender under Sections 83 and 84 of the Cr.P.C.

Considering the facts and circumstances of the case and the role attributed to the present applicant in the alleged offence, case for anticipatory bail

is made out and I find no reason to decline pre-arrest bail to the applicant. 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 a FIR being C.R. No. II-278/2006 registered with Palanpur City Police Station, Dist.

Banaskantha on his 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 himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 03.02.2022 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 their residence

till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the 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 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.