By way of present application, filed under Section 439 of the Code of Criminal Procedure, 1973, the applicant has prayed to release him on regular bail in connection with complaint being NCB/AZU/CR.No.5 of 2008 registered with NCB, Ahmedabad, for the offences punishable under Secs. 8(C), 22, 23, 24, 25, 12, 27(A), 29, 32(B)(E) and 38 of NDPS Act.
Heard learned advocate for the applicant, Mr.I.H.Syed, learned Asstt. Solicitor General of India for the respondent No.1 and Mr.L.B.Dabhi, learned Additional Public Prosecutor for respondent-State.
It is submitted by learned advocate, Mr.I.H.Syed, that the issue as to whether the NDPS Act is applicable in a case like the present one or not is pending before the Larger Bench of the Hon'ble Apex Court. It is also submitted that other co-accused of the said Crime Register who preferred application before the Hon'ble Apex Court was released on bail vide order dated 24-11-2011 passed in Special Leave to Appeal (Cri.) No.9035 of 2011 with Cri.Misc.Petition No.23183 of 2011 considering the accused are languishing in jail since last two years and it is not certain when the above referred issue will be decided by the Larger Bench of Hon'ble Apex Court.
In the facts and circumstances of the case and considering the fact that the issue whether NDPS Act will be applicable in the present case or not is still to be decided by the Larger Bench of Hon'ble Apex Court and as other co-accused of the said Crime Register Number was released on bail by the Hon'ble Apex Court vide order dated 24-11-2011 passed in Special Leave to Appeal (Cri.) No.9035 of 2011 with Cri.Misc.Petition No.23183 of 2011 and also as the applicant is in jail since 11-8-2009, without entering into the merits of the case, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail.
Hence, the applicant is ordered to be released on bail in connection with NCB/AZU/CR.No.5 of 2008 registered with NCB, Ahmedabad, for the offence alleged against him in this application on his executing a bond of Rs.50,000/- (Rupees fifty thousand only) with one solvent 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 his liberty or abuse his liberty;
b) not to try to tamper or pressurise the prosecution witnesses or complainant in any manner;
c) maintain law and order and should cooperate the Investigating Officer;
d) not act in a manner injurious to the interest of the prosecution;
e) not leave the State of Gujarat without prior permission of the Special Judge concerned;
f) mark presence before the I.O. of NCB, Ahmedabad, once in a month more particularly between 1st and 10th of month between 10.00 a.m. and 2.00 p.m. till trial is over;
g) furnish the address of his residence to the Investigating Officer and also to the Court with documentary proof of residence at the time of execution of the bond and shall not change the residence without prior permission of this Court;
h) surrender his passport, if any, to the lower Court within a week.
If the breach of any of the above conditions is committed, the concerned Court will be free to issue warrant or take appropriate action in the matter.
Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for. Rule is made absolute. Direct service is permitted.
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.
[M.D.SHAH,J.] radhan Top