Gujarat High Court
Sujal Vijaybhai Patel vs State Of Gujarat on 5 March, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/4713/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 4713 of 2018
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SUJAL VIJAYBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR ANSHIN DESAI, SR. ADVOCATE, MR VAIBHAV V GOSWAMY for the
PETITIONER(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
MR HARDIK SONI PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 05/03/2018
ORAL ORDER
Rule. Learned APP waives service of rule for the Respondent-State and the learned Advocate, Mr. Mehta, waives for Respondent No.2.
1. The applicant is the original accused, who has moved this application under Section 439 of the Code of Criminal Procedure, 1973, praying for the regular bail in connection with the offence punishable under Sections 22, 23, 24, 25, 27A, 28. 29, 30 and 38 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act').
2. The applicant had moved first bail application being Criminal Misc. Application No. 14483 of 2012, which was decided by this Court on 29.01.2013 on merits where this Court had dismissed the plea of grant of regular bail.
Page 1 of 13R/CR.MA/4713/2018 ORDER The matter was taken to the Apex Court vide Special Leave to Appeal No. 3558 of 2013, however, it was tagged with a larger issue, which was being considered by the Apex Court and thereafter, the applicant approached this Court and preferred Criminal Misc. Application No. 19670 of 2014, which was also rejected on 08.05.2015, on the ground that the earlier matter was decided on merits.
3. The applicant, once again, moved this Court by preferring Criminal Misc. Application No. 3107 of 2017 seeking regular bail, on the ground of parity, which was disposed of on 02.03.2017.
3.1 He, once again, preferred an application for regular bail on the ground of parity, which was not entertained, considering his involvement for Katamine and Alprasolam packets so also for Methaphatamine Chloride.
4. Then, Criminal Misc. Application No. 20602 of 2017 came to be preferred on the ground of delay in proceedings of the Sessions trial. This Court, after detailed consideration, deemed it fit to grant him temporary bail for a period of six months. This was so done after the report Page 2 of 13 R/CR.MA/4713/2018 ORDER of the Registrar, City Civil & Sessions Court, Ahmedabad, was obtained, which indicated clearly that qua the present applicant, substantial evidence was over and the trial, qua some of the accused, had already been stayed by this Court and examination of witnesses may take a longer time. By discussing various case-laws on the subject, as also on the ground of delay, the application of the applicant was considered. The relevant observations read thus:
"29. Noticing the fact that the present applicant is in jail from December, 2011. It is a matter of record, that some of the co-accused have already been released on regular bail by the Apex Court and the benefit of parity has not been made available to the present applicant. While releasing some of those persons on regular bail, the Apex Court had directed the learned Presiding Office of the trial Court to complete trial within a period of one year vide its order dated 29.07.2016. This Court also, while rejecting the application of present applicant on the ground of parity, had requested the trial Court to adhere to the time-limit set by the Apex Court and thus, had reiterated the need of completing the same within a period of one year. In wake non-compliance of such directions that the applicant has approached this Court. It is also apparent from the record sheet of the NDPS Sessions Case the report Page 3 of 13 R/CR.MA/4713/2018 ORDER of Registrar, City Civil & Sessions Court that in all 12 witnesses so far examined.
30. This Court is conscious of the fact that the applicant is alleged of serious offences.
31. The report of the learned Registrar, City Civil & Sessions Court, Ahmedabad, is further indicative of the fact that qua the present applicant and another accused substantial evidence is over. However, such qua the rest of the accused and those of them against whom the trial has been stayed by this Court, examination of other witnesses which the prosecution may desire to examine, will take a longer time. The directions issued by the Apex Court not only have not been adhered to it is unlikely that the trial would be completed in near future.
32. In above view of the matter, bearing in mind the various decisions, which have been discussed herein above and more particularly, the decision rendered in the case of 'SUPREME COURT LEGAL AID COMMITTEE REPRESENTING UNDERTRIAL PRISONERS Vs. UNION OF INDIA AND OTHERS' (Supra) so also other cases, where it is emphasized that not prosecuting those speedily, who are incarcerated for long would be in violation of Article 21 of the Constitution of India. As the applicant is in jail for nearly 7 years, on the ground of delay in completion of trial, his case is being considered. This Court also Page 4 of 13 R/CR.MA/4713/2018 ORDER notices that the applicant had been released on temporary bail, on couple of occasions, and no untoward incident is reported. The DRI also has not whispered anything against him for his conduct or behaviour, while he was granted temporary bail and hence also, his case warrants indulgence in the following manner.
33. Although, this application is made for regular bail under Section 439 of the Code, bearing in mind the overall facts and circumstances of the case and particularly bearing in mind ongoing trial and serious nature of offences alleged keeping in mind the decision of this Court in 'BIPIN SHANTILAL PANCHAL (II) VS. STATE OF GUJARAT AND ANOTHER', 2002 (1) GLR 355, this Court, therefore, deems it fit to exercise discretion in favour of the present applicant by releasing him instead on temporary bail for a period of SIX MONTHS only instead of granting regular bail permanently with certain stringent conditions and with a LIBERTY to approach this Court on expiry of the aforesaid period, where the Court would have a scope to review the circumstances and decide the further course of action.
34. Resultantly, this application is ALLOWED. The applicant is ordered to be RELEASED on regular bail on his furnishing one solvent surety of Rs.1,00,000/-
(One Lakh) with TWO SURETIES of the like amount to the satisfaction of the trial Court concerned and on conditions that the applicant shall:
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(a) not take undue advantage of
liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week from today;
(d) not leave State of Gujarat
without prior permission of the
trial Court concerned;
(e) MARK PRESENCE before the DRI on the first day of every English calender month, over and above regularly attending the Court proceedings;
(f) furnish the present address of residence to the Investigating Officer and also to the trial Court concerned at the time of execution of the bond and shall not change the residence without prior permission of this Court;
(g) not undertake his regular business of courier service, while on temporary bail;
35. Indulgence / involvement in any other offence shall AUTOMATICALLY cancel his bail and it would also entitle the prosecution to move for necessary directions.
36. The Authorities will release the applicant only if not required in connection with any other offence for the time being.
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37. If breach of any of the above conditions is committed, the trial Court concerned will be free to issue warrant or take appropriate action in the matter, including of cancellation of bail.
38. Bail bond to be executed before the lower court having jurisdiction to try the case.
39. 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.
40. Rule is made absolute to the aforesaid extent. Direct service is Permitted."
4. By the present application, a request is made to grant regular bail to the present applicant, as there is a stalemate in the trial. The applicant has also urged that he has not breached any of the conditions imposed by this Court, while granting him temporary bail vide order dated 05.09.2017. He has maintained the conduct of high standard and has strictly complied with all the conditions. He also had continued in judicial custody about 68 months and had demonstrated good conduct, while in judicial custody. It is also his case that on 29.07.2016, the Apex Court in Special Leave Petition No. 3857 of 2016 had directed the trial Court that the Page 7 of 13 R/CR.MA/4713/2018 ORDER trial be completed within a period of one year. However, there is not even the remotest possibility of the same getting over in the near future. He has neither sought any time nor has delayed the proceedings on any ground. It is also his case that there are nearly 40 witnesses to be examined and out of them, only 17 witnesses have been examined by the prosecution so far. It is also his case that vide order dated 17.04.2017 and 22.12.2016, passed by this Court, the trial qua the original accused Nos. 3 and 5 was stayed and after bipartite hearing, this Court (Coram:
J.B. Pardiwala, J.) has confirmed the said order till the final disposal of the application.
5. This Court has heard the learned Senior Advocate, Mr. Anshin Desai, with learned Advocate, Mr. Goswami, who has strenously urged before this Court that the application moved by Narcotics Control Bureau before the Sessions Court in NDPS Sessions Case No. 5 of 2012, seeking to examine the witnesses, who are common witnesses to the offence committed by the accused without segregating or limiting the evidence qua original accused Nos. 1, 2, 4 and 6, has been denied by the trial Court. He, therefore, has urged that the prosecution has examined, in all, 17 witnesses and remaining witnesses are common to all the accused or they are exclusively Page 8 of 13 R/CR.MA/4713/2018 ORDER connected to the accused Nos. 3 and 5 qua whom the trial has been stayed by this Court. Learned Sr. Advocate has, further, urged that even if the challenge is made to the order of the trial Court and this Court allows such a plea, then also, it is not likely to have any bearing on the request of the applicant, as he has continued to remain in jail for a long time and all the witnesses qua him have been examined by the prosecution. He urged that with the strict compliance of the directions issued by this Court and with the applicant not requesting to consider his case on merits, but, strictly on the ground of delay in proceedings with no possibility of the matter ending in near future, this Court may consider his request for regular bail. It is reiterated by the learned Counsel that he has spent seven years in jail waiting for the trial to end. It is also pointed out to this Court that after the order of the temporary bail was passed by this Court, the coordinate Bench of this Court has confirmed the interim order passed in case of other co-accused. Those matters are not likely to be concluded in the near future and hence, there is a huge uncertainty in relation to the completion of the trial.
6. Learned Advocate, Mr. Sudhir Mehta, appearing for Respondent No.2, herein, has urged Page 9 of 13 R/CR.MA/4713/2018 ORDER this Court that the order passed below Exhibit- 519 in Sessions Case No. 5 of 2012 is likely to be challenged before this Court. He, of course, fairly submitted that the decision to challenge such an order is not made as yet. However, there is a fair possibility that the challenge shall be made to such order of the trial Court. He urged that all possible endeavors are being made on the part of the prosecution to quickly proceed with the matter and only on account of stay granted by this Court in the matters of original accused Nos. 3 and 5, the prosecution is unable to proceeding with the trial. He also has fairly submitted that the earlier order of grant of temporary bail for a period of six months in case of the present applicant has not been challenged by the prosecuting agency.
6.1 On a specific query raised by this Court with regard to the compliance of the directions issued and the conditions imposed by this Court, he urged that there is no breach reported.
7. Learned APP, Mr. Patel, appearing for the Respondent-State adopted the submissions made by the learned Advocate, Mr. Mehta. He added that the trial is going on and there is substantial progress in the matter. Therefore, at this stage, this Court may not show indulgence by granting Page 10 of 13 R/CR.MA/4713/2018 ORDER regular bail.
8. Having thus heard the learned Counsels on both the sides, at the outset, it needs to be mentioned that after once this Court granted the temporary bail to the present applicant for a period of six months instead of granting him regular bail, none of the conditions imposed, while granting such a relief, is breached. This Court has been taken through the pleading, which indicates the number of adjournments taken by the learned Special Public Prosecutor on various dates. It is a matter of record that on none of the occasions, the application has sought time or in any manner attempted to hamper the trial. The period of six months of temporary bail granted by this Court is expiring today, i.e. on 5th March, 2018.
8.1 This Court notices that on account of stay granted by this Court qua original accused Nos. 3 and 5 in quashing petitions, the trial is not proceeding. At the time, when the last application for bail was preferred, the number of witnesses examined by the prosecution was 13, whereas, as of today, the witnesses examined by the prosecution are 17. Thus, during the period of six months, only four more witnesses have been examined by the prosecution. However, in wake of Page 11 of 13 R/CR.MA/4713/2018 ORDER the application, which is moved by the prosecution, seeking permission to examine the witnesses, which are common, and concerning those accused, including the present applicant, who are facing the trial and also those, qua whom the trial has been stayed by this Court so also considering the order of refusal passed by the Court below application Exhibit-591, there is clear impasse in proceeding with the trial. The only way available to the prosecution is to challenge it by way of necessary petition before this Court. Such a challenge has not been moved, till date, however, considering the date of pronouncement of the order being on 27.02.2018, the time needs to be given to the prosecution to prosecute the same.
8.2 This Court is conscious of the fact that even if the same is allowed and the common witnesses are permitted to be examined, the evidence of those, who are specifically connected with the case of the present applicant, is already over. If allowed, it may be beneficial for those, who are facing trial, since the matter could be proceeded qua them and that would end the ordeal of theirs. Since, this Court is not examining the challenge to the order below Exhibit-591 and is only concerned with the regular bail of the present applicant, in the Page 12 of 13 R/CR.MA/4713/2018 ORDER opinion of this Court, merely because such an application is rejected by the Sessions Court on 27.02.2018, may not itself be a ground to conclude that stalemate is likely to continue without any hope in future in wake of the stay granted in the matters of original accused Nos. 3 and 5. With there being fair possibility of the prosecuting agency pursuing this cause, for now, with his unquestionable conduct during last six months and while in jail and with the pace with which the matter is proceeding, the applicant has made out a case for himself to allow this application for temporary bail for a further period of six months without giving any separate reasonings for dealy entitling him to avail this order in his favour.
9. Resultantly, this application is PARTLY ALLOWED. The applicant is ordered to be RELEASED on temporary bail for a further period of SIX MONTHS only, on his furnishing one solvent surety of Rs.1,00,000/- (One Lakh) with one surety of the like amount to the satisfaction of the trial Court concerned, on the SAME terms and conditions as were imposed while granting earlier order of temporary bail. Rule is made absolute. Direct service is permitted, TODAY.
(MS SONIA GOKANI,J) UMESH/-
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