(Per : HON'BLE MR.JUSTICE D.K.TRIVEDI)
1.Learned Chief Justice has received letter dated 5th November 2004 from the applicant, which was registered as Criminal Misc. Application No.12234 of 2004 for bail. In the application, the applicant has highlighted about the conviction recorded by the learned trial judge under the NDPS Act on 23rd April 2003. The applicant was arrested in connection with the said offence on 4th December 1999. It is his say that he is old man of 70 years and, due to his old age, he is not in a position to do regular work in jail without help of other prisoners. Other co-accused from his family are involved and are undergoing sentence. The younger son of the applicant who was looking after agricultural work died due to failure of kidneys and there are no other male members in the family who can look after agricultural work. Accordingly, the applicant has prayed that, as he is in jail since 4th December 1999, he may be released on bail till the outcome of the hearing of the pending appeal. He also prayed that Criminal Appeal No.659 of 2003 be heard immediately.
2.Learned advocate, Mr. Rajesh M. Agrawal, is present before us and brought to our notice that he had already filed Criminal Misc. Application No.12205 of 2004 for suspension of sentence on behalf of three accused including the applicant, Gobarbhai Kanabhai. In the said application, the Court issued notice by order dated 30th December 2004 making it returnable on 10th January 2005. Accordingly, we have heard learned advocate, Mr. Rajesh M. Agrawal, for the applicant, in both the applications.
3.Learned advocate, Mr. Rajesh M. Agrawal, has submitted that the accused were arrested on 4th December 1999. He submitted that, even as per the prosecution case, a raid was carried out in the residential premises of accused No.1, Kalubhai Mohanbhai Makwana, and, from his house, 120 gram of ganja was found, which, according to learned advocate, Mr. Agrawal, is a small quantity as prescribed under the Act. After search of the house of the said accused was carried out, the raiding party carried out search of the field of accused Nos. 2 and 3 as per the prior information and the raiding party seized 8 kg 540 gram ganja from the field of accused Nos. 2 and
3. According to learned advocate, Mr. Agrawal, even the punishment imposed by the trial judge is too harsh if the Court considers the quantity of 120 gram of ganja which was found from the residential premises of accused No.1, Kalubhai Mohanbhai Makwana.
4.We have also heard learned APP, Mr. N.D. Gohil, who, in turn, opposed the prayer for suspension of sentence. According to him, on earlier occasion, the Court did not find it fit to release the accused on bail.
5.While considering this submission, it is brought to our notice by learned advocate, Mr. Agrawal that, by order dated 19th October 2004, the Division Bench consisting of myself and Mr. Justice S.R. Brahmbhatt, rejected Criminal Misc. Application No.9466 of 2004 filed by the accused for bail by observing that the appeal was already notified on final hearing board and there is every possibility of reaching the appeal for final hearing in the near future. Learned advocate, Mr. Agrawal, has, therefore, submitted that, though the said order was passed on October 19,2004, the appeal is, at present, listed for final hearing at Sr. No.30 before this Court. Learned APP, Mr. N.D. Gohil, has agreed that the appeal is ready for final hearing. He has further submitted that, as per the order of the Court, the matter was earlier listed on Board for final hearing, but the record and proceedings had not reached the Court, the matter was delisted. Thereafter, after the record and proceedings reached the Court, the appeal is again listed for final hearing.
6.In our view, in light of the above submissions, the appeal deserves to be heard immediately. Accordingly, the appeal will be taken up for final hearing after admission work is over, though the matter is listed at Sr. No.30.
7.With the above direction, both the applications are disposed of accordingly. Notice issued in Criminal Misc. Application No.12205 of 2004 stands discharged.
(D.K. Trivedi, J.) (Anant S. Dave, J.) (swamy)