1. Mr.B.B.Naik, learned Senior Advocate for the applicants submits that due to inadvertence, the prayer for suspension of the sentence along with grant of bail has inadvertently not been made. He prays for permission to amend the prayer-clause at paragraph-5(A). Leave to amend the prayer-clause, is granted. The necessary amendment be carried out, forthwith.
2. Rule. Mr.N.J.Shah, learned Additional Public Prosecutor waives service of notice of Rule for the respondent-State of Gujarat. On the facts and in the circumstances of the case, the application is being heard and finally decided today.
3. This application has been preferred by the applicants under Section-389 of the Criminal Procedure Code, 1973, inter-alia, with a prayer to suspend the sentence imposed upon them by the Sessions Court, Vadodara, whereby the applicants have been convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/- each in default, undergo further rigorous imprisonment for a period of one year in case of failure to pay the fine, by judgment dated 17.10.2011 in N.D.P.S. Case No.1/2010.
4. Heard Mr.B.B.Naik, learned Senior Advocate with Mr.Parthiv A. Bhatt, learned advocate for the applicants and Mr.N.J.Shah, learned Additional Public Prosecutor for the respondent-State of Gujarat and perused the averments made in the application.
5. It is submitted by the learned Senior Advocate that the applicants are not in a good financial condition, therefore, they have not paid the amount of fine. It is further contended that the applicants have never been released on bail by the Trial Court throughout since their arrest. It is further submitted that the applicants undertake to be available during the hearing of the appeal, therefore, the prayers made in the application may be granted and the applicants may be released on bail pending appeal, and their sentences may be suspended.
6. Mr.N.J.Shah, learned Additional Public Prosecutor has submitted that the applicants have not been released on either parole or temporary bail till date, and there is nothing adverse on record regarding their conduct during the period they have remained in jail. It is further submitted that keeping in mind the aspect that poppy-husk powder valued at Rs.14,608.50ps. was recovered from the accused persons, including the applicants, the Court may not grant the prayers made in the application.
7. Having heard the learned counsel for the respective parties and looking to the aspect that the applicants have never been released on bail and their conduct during the entire period of their incarceration is satisfactory; as well as the aspect that two other co-accused persons, who have been convicted by the same judgment of the Trial Court have been released on bail and their sentences have been suspended, the following order is passed :
The applicants are ordered to be released on bail pending the appeal on their furnishing surety of an amount of Rs.5,000/- each and personal bonds of the like amount on the usual terms and conditions. The applicants shall not leave the State of Gujarat without the prior permission of this Court. The records and proceedings, if any, be sent back to the concerned Court.
Bail be furnished before the Trial Court. The sentences imposed by the Sessions Court vide judgment dated 17.10.2011 passed in N.D.P.S. Case No.1/2010, shall remain suspended in respect of both applicants till the final disposal of the appeal.
Rule is made absolute, to the aforesaid extent.
In addition to the normal mode of service, direct service of this order is also permitted.
Gaurav+ (Smt. Abhilasha Kumari, J.)