Gujarat High Court

Asif Salimbhai Daulti vs State Of Gujarat on 3 June, 2021

Bench: B.N. Karia

       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

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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,

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

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%,

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

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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,

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