R/CR.MA/8059/2021 ORDER DATED: 03/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8059 of 2021
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ASIF SALIMBHAI DAULTI
Versus
STATE OF GUJARAT
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Appearance:
MR YM THAKKAR(902) for the Applicant(s) No. 1
MR. DHARMESH DEVNANI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 03/06/2021
ORAL ORDER
By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R No.11207078210141 of 2021 before Kankanpur Police Station, District: Panchmahals for the offence punishable under Sections 3 and 7 of the Essential Commodities Act.
Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides the applicant is available during the course of investigation and will not flee away from the justice. In view of the above, the applicant may be enlarged on anticipatory Page 1 of 7 Downloaded on : Sat Jan 15 03:27:53 IST 2022 R/CR.MA/8059/2021 ORDER DATED: 03/06/2021 bail by imposing suitable conditions.
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. Learned advocate for the applicant would further submit that upon filing of such application by the Investigating Agency, the right of applicant to oppose such application on merits may be kept open.
Learned Additional Public Prosecutor appearing on behalf of the respondentState has opposed grant of anticipatory bail looking to the nature and gravity of the offence.
Heard the learned Advocates for the respective parties and perused the papers.
Having considered the facts of the present case as well as submissions made by learned advocate for the applicant and learned APP for the respondentState, it appears that applicant is working as a driver of a private passenger vehicle with various individuals. As per the submissions made by learned advocate for the applicant, a request was made to arrange for the lorry to shift tank of base oil from one premises to another, and therefore, Page 2 of 7 Downloaded on : Sat Jan 15 03:27:53 IST 2022 R/CR.MA/8059/2021 ORDER DATED: 03/06/2021 applicant arrange a truck that was driven by the accused No.2. While the said material was transferred by the accused No.2 in his truck, the police officers intercepted the truck and seized the same along with loaded tank on 18.02.2021, therefore registered a Janvajog Case No.07/2021. It further appears that Investigating Officer procured sample from the tank loaded on the truck and forwarded it for forensic test, therefore, this FIR was lodged under Sections 3 and 7 of the Essential Commodities Act. As per the submissions made by learned advocate for the applicant, applicant is not owner of the Quarry in question or material seized by the Investigating Officer. Applicant is implicated in the offence. It further appears that offence punishable under Sections 3 and 7 of the Essential Commodities Act is triable by learned Magistrate. The punishment is provided to one year and also liable fine and it falls in clause (h) or clause (i) of subsection 2 of the Section 3 of the Essential Commodities Act. The punishment is prescribed for the term of imprisonment not less than 3 months and extend up to 7 years and it is non bailable.
Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without Page 3 of 7 Downloaded on : Sat Jan 15 03:27:53 IST 2022 R/CR.MA/8059/2021 ORDER DATED: 03/06/2021 discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. as reported at [2011] 1 SCC 6941, wherein the Hon'ble Apex Court has held as under:
It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because section 438 Cr.P.C. has not been allowed its full play. The Constitution Bench in Sibbia's case (supra) clearly mentioned that section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were sections 437 and 439 Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra). According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, Page 4 of 7 Downloaded on : Sat Jan 15 03:27:53 IST 2022 R/CR.MA/8059/2021 ORDER DATED: 03/06/2021 then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis` vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court.
Considering the peculiar facts of the present case and punishment under the Essential Commodities Act, this Court is of the view that prayer made by the present applicant requires consideration.
In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as C.R No.11207078210141 of 2021 before Kankanpur Police Station, District: Panchmahals, the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/ (Rupees Thousand only) with one surety of like amount on the following conditions that the applicant shall :
(a) cooperate with the investigation and make available for interrogation whenever required;
(b) remain present at concerned Police Station on 10.06.2021 between 11.00 a.m. and 2.00 p.m.;
(c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so Page 5 of 7 Downloaded on : Sat Jan 15 03:27:53 IST 2022 R/CR.MA/8059/2021 ORDER DATED: 03/06/2021 as to dissuade from disclosing such facts to the court or to any police officer;
(d) 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) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders;
(f) not leave India without the permission of the 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, Page 6 of 7 Downloaded on : Sat Jan 15 03:27:53 IST 2022 R/CR.MA/8059/2021 ORDER DATED: 03/06/2021 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 while enlarging the applicant on bail. Rule is made absolute. Application is disposed of accordingly.
Registry is directed to send a copy of this order to the concerned Police Station through fax or email forthwith.
(B.N. KARIA, J) SUYASH Page 7 of 7 Downloaded on : Sat Jan 15 03:27:53 IST 2022