Nasimbanu W/O Gulhasan Mohammed ... vs State Of Gujarat
2021 Latest Caselaw 15023 Guj

     R/CR.MA/7929/2021                               JUDGMENT DATED: 24/09/2021




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL MISC.APPLICATION NO. 7929 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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       Whether Reporters of Local Papers may be allowed
 1                                                                         NO
       to see the judgment ?

 2 To be referred to the Reporter or not ?                                YES

       Whether their Lordships wish to see the fair copy of
 3                                                                         NO
       the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution of                  NO
   India or any order made thereunder ?

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      NASIMBANU W/O GULHASAN MOHAMMED QURESHI
                            Versus
                    STATE OF GUJARAT
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Appearance:
MOHAMADZAID I SAIYED(8411) for the Applicant(s) No. 1
MR M.NISAR VAIDHYA(3386) for the Applicant(s) No. 1
MR RC KODEKAR, APP (2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                               Date : 24/09/2021

                                ORAL JUDGMENT

1. Applicant - Nasimbanu W/o Gulhasan Mohammed Qureshi has filed this successive regular bail application under Section 439 of the Code of Criminal Procedure for enlarging her on regular bail in connection with FIR being C.R. No. 11191028201551 of 2020 registered with Vejalpur Police Station,

R/CR.MA/7929/2021 JUDGMENT DATED: 24/09/2021

District: Ahmedabad City for the offences punishable under Sections 66(2), 65(a), 65(e), 116B and 81 of the Prohibition Act.

2. Heard learned advocate Mr. M. I. Saiyed for the applicant and learned APP Mr. R. C. Kodekar for the respondent - State.

3. Brief facts of the case are that accused person namely Nasimbanu @ Aapa W/o. Gulhusai Mohammedisrail Qureshi had, in connivance of her brother Salim Thakur, purchased the contraband liquor from one Akbarali @ Juberali @ Kalu S/o. Mohammedbhai Saiyed and hidden the 804 bottles of said illegal contraband liquor worth Rs.2,32,740/- at the places occupied by her in Ahmedabad and eventually, found in possession of the same without any pass or permit and therefore, the FIR in question came to be filed against the applicant.

Submission of the Parties:

4. Learned advocate for the applicant - accused submitted that this is the successive bail application and while disposing of the earlier application being Criminal Misc. Application No. 19671 of 2020 as withdrawn, the Court had granted liberty to file a fresh application after three months. Accordingly, the present application is filed. He submitted that the applicant is a widow lady and has no direct role in the commission of crime. It is submitted that the co-accused have released on anticipatory bail by the Sessions Court Further, the applicant has responsibility of her aged mother. The learned advocate for the applicant further submitted that the antecedents against the applicant may not be a bar in granting bail and for such a proposition, he relied upon a decision of the Apex Court in Prabhakar Tewari v. State of U.P., (2020) 11 SCC 648.

R/CR.MA/7929/2021 JUDGMENT DATED: 24/09/2021

4.1 The learned advocate for the applicant further submitted that in the present case, charge-sheet has been filed and a perusal of the charge-sheet papers reveals no prima facie case against the present applicant.

4.2 The learned advocate for the applicant has further submitted that the applicant has roots in the society and no useful purpose would be served by keeping the applicant in jail for indefinite period. He also submitted that the applicant - accused is not likely to flee away. It is further contended that the applicant is ready and willing to abide by all the conditions that may be imposed by this Court if released on bail.

5. Per contra, learned APP has vehemently opposed the present application for grant of regular bail. He submitted that the applicant has past antecedents and as many as 40 offences have been registered against the applicant under the Prohibition Act. It is submitted that from the charge sheet papers, prima facie case is made out against the present applicant. Further, it is urged that this is a successive bail application and there is no change in circumstances. Thus, looking to the nature and gravity of the offence, it is requested that this Court may not exercise the discretion in favour of the applicant.

Merits of the Case:

6. This court has considered the following aspects:

(a) in the present case it is an admitted fact that the applicant - accused has come for this application after the charge sheet is filed;

R/CR.MA/7929/2021 JUDGMENT DATED: 24/09/2021

(b) the applicant is a widow and as per the learned advocate for the applicant, she is having responsibility of her mother;

(c) as per catena of decisions of Hon'ble Supreme Court, there are mainly three factors which are required to be considered by the court i.e. prima facie case, availability of applicant - accused at the time of trial and hampering and tampering with the witnesses by the accused;

(d) the learned advocate for the applicant has submitted that the applicant is not likely to flee away;

(e) the applicant is in custody since 19.08.2020;

(f) law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I., (2012) 1 SCC 40, wherein it is held that bail is a rule and jail is an exception and there should not be pre-trial punishment;

(g) the Apex Court in the decision in Prabhakar Tewari (supra) has observed as under:

"On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. The factors outlined in the case of Mahipal (supra) for testing the legality of an order granting bail are absent in the order impugned. The materials availabile do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a

R/CR.MA/7929/2021 JUDGMENT DATED: 24/09/2021

prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal case pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the High Court granting bail. This appeal is dismissed."

7. Having heard the learned advocates for the parties and perusing the papers available on record as well as taking into consideration the facts of the case, it appears that the applicant is implicated in the offence punishable under the Prohibition Act. The learned APP has heavily relied upon the antecedents of the applicant, however, considering the decision of the Apex Court in Prabhakar Tewari (supra) as well as the principle laid down in Sanjay Chandra (supra), there should not be pre-trial punishment. Least is to say that, charge-sheet in the case on hand is filed and hence, there is no possibility of tampering and/or hampering with the evidence. Considering the charge- sheet papers as well as the nature of allegations, gravity of accusation, availability of the applicant - accused at the time of the trial etc. and last but not the least, the role attributed to the present applicant - accused, and that the applicant is a lady accused, the present application deserves to be allowed and is accordingly, allowed. The applicant - accused is ordered to be released on bail in connection with the aforesaid FIR on executing a personal bond of Rs.15,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the

R/CR.MA/7929/2021 JUDGMENT DATED: 24/09/2021

following conditions that she shall:

(a) 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 any Police Officer or tamper with the evidence;

(b) maintain law and order and not to indulge in any criminal activities;

(c) furnish the documentary proof of complete, correct and present address of her residence to the Investigating Officer and to the trial Court at the time of executing the bond and shall not change her residence without prior permission of the trial Court;

(d) provide her contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court;

(e) file an affidavit stating her immovable properties whether self acquired or ancestral with description, location and present value of such properties before the trial Court, if any;

(f) not leave India without prior permission of the Trial Court.

(g) surrender passport, if any, to the Trial Court within a week. If she does not possess passport, she shall file an Affidavit to that effect;

(h) shall maintain all the rules and regulations framed by the Corporation regarding contemporary status of corona virus/Covid-

R/CR.MA/7929/2021 JUDGMENT DATED: 24/09/2021

19, State Government or by any competent authority, including social distancing.

8. Bail bond to be executed before the trial Court having jurisdiction to try the case. It would be open for the trial Court concerned to give time to furnish the solvency certificate if prayed for.

9. If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The authorities will release the applicant forthwith only if she is not required in connection with any other offence for the time being.

10. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

11. Rule is made absolute to the aforesaid extent. Direct service is permitted.

[ A. C. Joshi, J. ] hiren