Back
Gujarat High Court
Judgename :H.K.RATHOD
SOHIL SAFI MOHAMMAD VOHRA - Appellant
Versus
STATE - Respondent
CRI.M.A. 3618 of 2001
Decided On : 05/15/2001
Criminal Procedure Code, 1973 - Section 439 – Challenged - Regular bail application – Rejected - Contention consistency in approach lower judiciary - Tribunal noticing earlier judgment of a coordinate Bench and after noticing the judgment Court, proceed contrary earlier judgment creating a judicial uncertainty in regard declaration of law involved approach latter Bench tribunal case, a lot of valuable time Court is wasted parties considerable hardship - Bail lethal activities society carried out by the petitioner will be repeated which ultimately adversely affects the society observed present application is preferred under Section 439 of Crpc, 1973 which in fact discretionary powers and while granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support the severity of the punishment which conviction will entail, the character, behavior, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public or State and similar other considerations – Held, Purposes of granting the bail the Legislature has used the words `reasonable grounds for believing instead of `the evidence which means the Court dealing with the grant of bail can only satisfy whether genuine case against the accused prosecution will be able to produce prima facie evidence support charge evidence establishing the guilt of the accused beyond reasonable doubt - hence the present petition is rejected.
( 1 ) HEARD Mr. K. B. Pandey, learned advocate appearing on behalf of the present petitioner and Mr. N. D. Gohil, learned APP for respondent - State.
( 2 ) IN the present petition, the order passed by the Additional Sessions Judge, Nadiad dated 19th April, 2001 in Criminal Misc. Application No. 223 / 2001 is challenged by the present petitioner. The petitioner has filed regular bail application before the Additional Sessions Judge, Nadiad and that application has been rejected while exercising the powers under Section 439 of Crpc, 1973. Mr. Pandey has raised two contentions, of which, the first contention is about consistency in approach by the lower judiciary as relied upon by him in case of S. I. ROOPALAL V. LT GOVERNOR THROUGH CHIEF SECRETARY, DELHI reported in 2000 (1) SRJ 354. Mr. Pandey, learned advocate has mainly relied upon para-12 of the said judgment which runs as under :-"12. WE are indeed sorry to note the attitude of the tribunal in this case which, after noticing the earlier judgment of a coordinate Bench and after noticing the judgment of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the latter Bench of the tribunal in this case, a lot of valuable time of the Court is wasted and the parties to this case have been put to considerable hardship. "
( 3 ) THE second contention which has been raised by learned advocate Mr. Pandey placing reliance upon the decision of this Court reported in 1989 (1) F. A. C. 153 in case of CHANDRAKANT NAGINADAS MODI VS. STATE OF GUJARAT. Mr. Pandey, learned advocate has mainly contended that on verifying the slip, it appears that it was not affixed on the packet containing the muddamal either by gum or sealing wax. If it would have been properly affixed, it could not have been taken out intact. If, therefore, appears that the muddamal was not properly sealed and there was all the possibility of substituting the substance. Coupled with this, the fact that the muddamal remained with the police for more than two months raises a doubt and therefore prosecution has failed to establish the offence beyond reasonable doubt against the appellant.
( 4 ) MR. N. D. GOHIL, learned advocate appearing on behalf of the respondent - State has submitted that this is a matter in respect of NDPS Act and therefore while considering the bail application, mandate which has been enshrined under Section 37 of the Act is required to be kept in mind while exercising the powers by the concerned the Court.
( 5 ) HOWEVER, the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are reproduced hereinbelow :-"37. Offence to be cognizable and non bailable - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 )
( 6 ) HOWEVER, considering the observations made by Additional Sessions Judge, Nadiad on page 27 in para-3, after perusing the police papers, one fact has been clearly established prima facie and there is reasonable ground to the effect that present petitioner is a person from whom the main accused has purchased Charas. This fact has been born out from the police papers and it has been rightly considered by the concerned Additional Sessions Judge. However, this is a prima facie case established against the present petitioner and a person who is selling Charas in the society and from the police papers, if this has been found on the record that the main accused has purchased Charas from the present petitioner that is enough to consider the mandate of Section 37 of the NDPS Act and therefore, in such situation, the view taken by the Apex Court in case of UNION OF INDIA VS. IKRAM KHAN reported in AIR 2000 SC 3397, the Apex Court has observed that while considering the question of bail, the Court was not borne in mind the provisions o
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
