1. The instant application is filed under Section 438 of Code of Criminal Procedure seeking anticipatory bail in connection with DCB Police station, Ahmedabad, Prohibition CR No. - 5064/2011 regarding offences punishable under sections 8(c), 20(b) and 29 of the NDPS Act.
2. Mr.
R. M. Agrawal, learned advocate representing the applicant, at the out set, took me through to relevant part of the charge-sheet and submitted that at the time of raid, co-accused Muqbul Ahmed came to be arrested and from his possession, Charas allegedly 275 gms came to be seized. It is further submitted that on the basis of the statement of the co-accused- Maqbul Ahmed, the applicant came to be involved in this incidence. Mr. Agrawal drew my attention to the order of the Sessions Court whereby co-accused - Maqbul Ahmed, from whose possession the alleged contraband substances was seized, came to be released on bail. Mr. Agrawal submitted that considering the fact that the alleged seizure of 275 gms of Charus, which is lesser than commercial quantity and greater than smaller quantity, the maximum punishment prescribed is imprisonment for 10 years, the application may be allowed. That there is no past criminal antecedents.
3. Heard Mr. K.L.Pandya, learned APP for the respondent-state. Mr. Pandya tendered the investigation papers for perusal and more particularly considering the panchnana dated 15.12.2011, it transpires that the residence of applicant-accused, came to be searched by the investigating police officer with panchas and from his house, nothing objectionable came to be found out.
4. Having heard the learned counsel for the parties so also considering the relevant contents of the FIR so also considering the fact that the contraband substances- Charas, allegedly seized from the co-accused, was weighing 275 gms, which was lesser than commercial quantity and greater than smaller quantity and said co-accused has been released on bail by the Trial Court and further the fact that upon search being conducted in the house of the applicant, nothing objectionable came to be found out, this Court is of the opinion that application deserves to be granted. This Court has also taken into consideration the law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. Reported in [2011]1 SCC 694, wherein the Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Reported in [1980]2 SCC 565.
5. Learned counsel for the parties do not press for further reasoned order.
6. In the result, this application is allowed by directing that in the event of the applicant herein being arrested pursuant to FIR being Prohibition CR No.I-5064 of 2011 with DCB Police Station, Ahmedabad the applicant shall be released on bail on furnishing a bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of like amount on following conditions :-
[a] shall cooperate with the investigation and make himself available for interrogation whenever required.
[b] shall remain present at concerned Police Station on 30.6.2012 between 11:00 am to 2:00 pm:
[c] shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any witness so as to dissuade them from disclosing such facts to the Court or to any Police Officer;
[d] shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders;
[e] will not leave India without the permission of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately [f] It would be open to the Investigating Officer to file an application for remand, if he considers it just and proper and the concerned Magistrate would decide it on merits.
[g] 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, if ultimately granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicants, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
7. For modification and/or deletion of any of the conditions herein above, the applicant/s will be at liberty to approach the concerned Court and such Court shall decide the application for modification and/or deletion of any of the conditions of this order in accordance with law.
8. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
9. Rule made absolute. Application is disposed of accordingly.
10. Direct service is permitted.
[J.C.UPADHYAY, J.] cmj/ Top