1. Rule.
Ms. CM Shah, Addl. Public Prosecutor appears and waives the service of Rule on behalf of opponent - State.
2. The applicant preferred this application under Section 439 of the Code of Criminal Procedure for obtaining regular bail in connection with Prohibition C.R. No. 5139/2010 registered with Kotada Sangani Police Station, Dist. Rajkot, regarding offences punishable under sections 66B, 65[A][E], 116[B] and 81 of the Bombay Prohibition Act [for short 'the Act'].
3. Considering the facts and circumstances of the case, the matter is taken up for final hearing today.
4. Mr. VG Popat, Ld. Advocate for the applicant submitted that the Ld. Sessions Judge rejected the bail application solely on the ground that in past FIRs were registered against the applicant in connection with certain offences arising under the Act. It is further submitted that the Ld. Sessions Judge, in the order itself, stated that the applicant is suffering from serious ailment of HIV Positive. It is further submitted that the offences are triable by the Ld. Judicial Magistrate First Class and none of the offences is punishable with death or imprisonment for life. It is, therefore, submitted that the application may be allowed.
5. Per contra, Ms. CM Shah, Ld. APP opposed this application and submitted that in past, number of offences are registered against the applicant, which are arising under the Act and therefore, it is submitted that the application may be rejected.
6. Having considered the submissions advanced on behalf of both the sides and considering the FIR together with the order passed by the Sessions Court rejecting the regular bail application, this Court is of the opinion that the discretionary powers vested in this Court under sec. 439 of the Cr. P.C., deserve to be exercised in favour of the applicant.
7. Considering the submissions made on behalf of the parties and having regard to the facts and circumstances of the case, the application is allowed and applicant is ordered to be released on bail in connection with Prohibition C.R. No. 5139/2010 registered with Kotada Sangani Police Station, Dist. Rajkot, for the offences alleged against him in this application on his executing bond of Rs.5,000/= (Rupees Five Thousand only) with one surety of the like amount to the satisfaction of the lower Court and subject to the conditions that he shall,
a) not take undue advantage of his liberty or abuse his liberty;
b) not try to tamper or pressurize the prosecution witnesses or complainant in any manner;
c) maintain law and order and should co-operate the investigating officers;
d) not act in a manner injurious to the interest of the prosecution;
e) not leave the local limits of State of Gujarat without the prior permission of the concerned trial Judge.
f) furnish the address of his residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
g) surrender his Passport, if any, to the lower court within a week.
8. If breach of any of the above conditions is committed, the concerned trial Judge will be free to issue warrant or take appropriate action in the matter.
9. 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.
[ J.C. UPADHYAYA, J. ] * Pansala.
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