( 1 ) THE applicant, having been arrested on 31st October,2004 in connection with an offence registered with Panigate Police Station of Vadodara, vide c. R. No. I-386 of 2004, has moved this application under Section 439 of Criminal procedure Code for his release on bail.

( 2 ) THIS application is a successive bail application preferred for the second time after the charge-sheet. Earlier, the applicant had preferred Criminal Misc. Application No. 12029 of 2004 before filing of the charge-sheet, which was withdrawn with a view to approach the Sessions Court with similar application, as charge-sheet was filed during the pendency of that application. Later on, the applicant preferred Criminal Misc. Application No. 3226 of 2005 after the charge-sheet was filed. The said application was considered on merits by this court and was rejected by order dated 17th June,2005. This Court, while rejecting the application, took into consideration the fact that Panchnama drawn by Investigating Agency indicates that a large number of documents and other material including manipulated HSC and SSC mark-sheets, fixed deposits etc. have been seized from custody of the applicant.

( 3 ) THIS successive bail application has been preferred by the applicant on the ground that on perusal of Investigation papers tendered with the charge-sheet, it is found that the applicant was arrested subsequent to the drawing of panchnama, whereunder the said documents are alleged to have been recovered from him and barring this, there is no other evidence against him. The Panchnama would, therefore, not meet with the requirements of Section 27 of the Evidence act, as the applicant was not in custody of police when the Panchnama was drawn, he having been arrested subsequently and, therefore, his case for bail may be given a re-look.

( 4 ) LEARNED Senior Advocate Mr. Nanavati for the applicant has highlighted the fact that the Panchnama under which the documents are recovered from the applicant came to be drawn on 30th October,2004 between 18. 30 and 22. 30 hrs. , whereas the applicant has been arrested on 31st October,2004. He has also drawn attention of this Court to Section 27 of the Evidence Act which provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Mr. Nanavati has emphasized on words "in custody of a police officer" and submitted that the applicant was arrested on 31st October,2004, whereas the Panchnama was drawn on 30th October,2004 and, therefore, the applicant cannot be said to be in custody of police officer as envisaged under Section 27 of the Evidence Act. Mr. Nanavati submitted that the Panchnama is the only piece of evidence against the applicant which weighed with this Court in rejecting his earlier bail application on merits. He submitted that the case of the applicant for bail may, therefore, be reconsidered.

( 5 ) LEARNED APP Mr. Raval has opposed this application. He submitted that this is a successive bail application. There is no change of circumstance which may require the applicants case to be reconsidered. The charge-sheet papers were available with the applicant when last bail application was heard and decided. Contention could and ought to have been raised at that time. That apart, the applicant was under surveillance of police when the Panchnama was drawn. He submitted that the Panchnama is of recovery and can be said to have been drawn under Section 102 of Criminal Procedure Code and Section 27 of the Evidence Act would not be attracted. He, therefore, submitted that bail may be rejected.

( 6 ) THIS Court has taken into consideration the rival side contentions.

( 7 ) THE contentions that are raised by learned Senior Advocate for the applicant proceed on a premise that the