Dilip @ Kalubhai Prabhatbhai ... vs State Of Gujarat
2023 Latest Caselaw 3946 Guj

      R/CR.MA/6594/2023                              ORDER DATED: 04/05/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 6594 of 2023
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             DILIP @ KALUBHAI PRABHATBHAI RATHOD
                               Versus
                        STATE OF GUJARAT
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Appearance:
MR PRADIP J PATEL(5896) for the Applicant(s) No. 1
MR. JIRGA JHAVERI, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                             Date : 04/05/2023

                               ORAL ORDER

Leave to correct section in the memo of application as also in the prayer clause. It is to be corrected forthwith.

1. Rule returnable forthwith. Learned APP Ms. Jirga Jhaveri, waives service of Rule on behalf of the respondent - State.

2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R.No.11187007220680 of 2022 registered with Santrampur Police Station, Mahisagar, for offence under Sections 65(a)(e), 81, 83, 98(2) and 116-B of the Indian Penal Code.

3. Learned Advocate appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

4. Learned APP appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence.

R/CR.MA/6594/2023 ORDER DATED: 04/05/2023

5. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.

6. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

7. Following aspects are considered:

(a) Investigation is over and charge-sheet is filed;

(b) The applicant is in custody since 18.01.2023;

(c) Learned advocate for the applicant submitted that co-

accused, who was the owner of the vehicle, from where prohibition articles found in abandoned condition, as per the case of the prosecution, has come to be tried and acquitted by the Trial Court vide judgment and order dated 28.02.2023 passed in Criminal Case No.8 of 2023.

Learned advocate for the applicant has produced for perusal of the Court the copy of the said judgment and order. As recorded in the order, prosecution has failed to produce on record any material, to prove that vehicle from where muddamal prohibition articles found, is of the ownership of chargesheeted accused i.e. co-accused viz. Sanjaykumar Arvindkumar Solanki;

(d) At the same time, as recorded by the learned Judge that the liquid which is found in bottle contains liquor or not that is also not supported by any report of the FSL and

R/CR.MA/6594/2023 ORDER DATED: 04/05/2023

those were the grounds weighed with the Court to acquit the accused;

(e) If that finding is correct, it is shameful on the part of the prosecution to prosecute such accused without the main material.

In the facts and circumstances of the present case, I am inclined to consider the case of the applicant.

8. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in [2012] 1 SCC 40.

9. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R.No.11187007220680 of 2022 registered with Santrampur Police Station, Mahisagar, on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the India without prior permission of the concerned trial court;

[e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the

R/CR.MA/6594/2023 ORDER DATED: 04/05/2023

residence without prior permission of the concerned trial court;

10. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

12. Copy of this order be sent to the Secretary, Home Department as also Superintendent of Police, District - Mahisagar, for the purpose of information as also necessary action, if thought fit, considering para 7(c), (d) and (e) of this order.

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

(UMESH A. TRIVEDI, J.) Lalji Desai