Gujarat High Court
Afzal Aasif Ghanchi vs State Of Gujarat on 27 April, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/21505/2021 ORDER DATED: 27/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 21505 of 2021
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AFZAL AASIF GHANCHI
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED, SENIOR ADVOCATE WITH MR ANIQ A KADRI(11256) for the
Applicant(s) No. 1
MR RONAK RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 27/04/2022
ORAL ORDER
1. This successive bail application is filed under Section 439 of the Code of Criminal Procedure, 1973 (`the Code' for short) by the applicant-accused with a request that the applicant be enlarged on regular bail in connection with C.R.No.I-105 of 2019 registered with Chikhli Police Station, Navsari.
2. Heard learned senior advocate Mr.I.H.Syed assisted by learned advocate Mr.Aniq Kadri for the applicant and learned APP Mr.Raval for respondent-state.
3. Learned senior advocate Mr.Syed submitted that FIR being C.R.No.I-105 of 2019 has been registered against the present applicant and other accused before Chikhli Police Station for the alleged offences punishable under Sections 489A, 489B, 489C, 489D, 120B and 34 of the Indian Penal Code (`IPC' for short). It is mainly alleged in the said FIR that counterfeit notes' scan/xerox machines were found at the residential Page 1 of 6 Downloaded on : Thu Apr 28 21:16:44 IST 2022 R/CR.MA/21505/2021 ORDER DATED: 27/04/2022 premises of the applicant. It is submitted that the applicant is arrested in connection with the aforesaid FIR on 8.12.2019 and since then, he is in jail. It is submitted that the applicant filed Criminal Miscellaneous Application No.4207 of 2020 before this Court. However, this Court was not inclined to entertain the said application and therefore the same was withdrawn on 30.6.2020. This Court granted liberty to file fresh application if the trial is not commenced within a period of six months.
3.1. Thereafter, once again the applicant filed Criminal Miscellaneous Application No.3944 of 2021 which was also withdrawn on 25.6.2021 and liberty was granted to file fresh application after a period of four months if the trial is not concluded.
3.2. Learned senior advocate Mr.Syed submitted that the applicant is in jail since December, 2019 and till date, the trial is not proceeded further and therefore on this ground of delay in proceeding with the trial, the applicant be enlarged on regular bail. At this stage, learned senior advocate further submitted that from the allegations levelled against the applicant in the aforesaid FIR also, it cannot be said that the applicant was found with fake currency noted and therefore also, the case of the applicant be considered on merits. At this stage, learned senior advocate has referred to the orders passed by this Court by which the applicant has been enlarged on temporary bail. It is submitted that the applicant has complied with the conditions imposed by this Court when the applicant was enlarged on temporary bail. Learned senior advocate, therefore, urged that this application be allowed.
4. On the other hand, learned APP has opposed this application. Learned APP has placed on record the relevant papers of the Page 2 of 6 Downloaded on : Thu Apr 28 21:16:44 IST 2022 R/CR.MA/21505/2021 ORDER DATED: 27/04/2022 chargesheet and the report submitted by the investigating officer. Learned APP submitted that the applicant had earlier filed application under Section 439 of the Code on two occasions and when this Court was not inclined to entertain the said application on merits, the applicant withdrew the said applications and therefore it is not open for the applicant to canvass on merits of the application.
5. Learned APP has referred to the panchanama from which it is pointed that from the residential premises of the present applicant, two xerox printers, two green coloured pens, scissor and fake currency notes were recovered. At this stage, learned APP has referred to the statement of the witnesses Mohsin Asgar Shaikh who has sold the printer to the applicant. Learned APP has also referred to the statement of the witness Mohammed Haiderbhai Bakaswala who had sold the necessary papers/required papers for printing of the notes to the present applicant. The statement of another witness Viral Manilal Desai who sold another printer to the applicant is also part of the chargesheet papers. Seven fake currency notes of denomination of Rs.100/-, forty-one fake currency notes of denomination of Rs.200/- and one fake currency note of Rs.500/- were found from the possession of the present applicant. Learned APP has also referred to the FSL report and submitted that prosecution has made out prima facie case against the present applicant in commission of the alleged offences. Therefore, this Court may not entertain the present application. At this stage, learned APP has also shown apprehension that if the applicant is enlarged on bail, he will tamper with the witnesses and he will not be available at the time of trial. Learned APP, therefore, urged that this application be dismissed.
6. Learned APP has placed reliance upon the decision rendered Page 3 of 6 Downloaded on : Thu Apr 28 21:16:44 IST 2022 R/CR.MA/21505/2021 ORDER DATED: 27/04/2022 by the Hon'ble Supreme Court in the case of Rajesh Ranjan Yadav @ Pappu Yadav V/s CBI Through Its Director, reported in (2007)1 SCC 70, more particularly, on paragraph 23 of the said decision. Learned APP, therefore, requested that this application be dismissed.
7. I have considered the submissions canvassed by learned advocates appearing for the parties and I have also perused the material placed on record. It is pertinent to note that this is the second successive bail application filed by the applicant under Section 439 of the Code for enlarging him on regular bail in connection with the FIR in question. Learned senior counsel appearing for the applicant has mainly contended that as the applicant is in jail since last more than two years, he may be enlarged on bail on the ground that there is a delay in proceeding with the trial. It is further pertinent to note that when this Court was not inclined to entertain the case of the applicant on merits, the applicant had withdrawn the application filed by him on 30.6.2020 and thereafter on 25.6.2021, copy of the said orders are placed on record at page nos.30 and 29 respectively.
8. Learned senior advocate has submitted the case of the applicant on merits and therefore this Court has considered the case of the applicant on merits. The prosecution has recorded the statement of witnesses Mohsin Asgar Shaikh and Viral Manilal Desai who have sold the printers to the present applicant. The statement of witness Mohammed Haiderbhai Bakaswala is also recorded by the investigating agency who had provided the papers for printing notes to the present applicant. FSL report dated 6.1.2022 is also a part of the papers of the chargesheet. This Court has also perused the panchanama dated 8.12.2019 from which it is revealed that fake currency notes were found from the possession of the Page 4 of 6 Downloaded on : Thu Apr 28 21:16:44 IST 2022 R/CR.MA/21505/2021 ORDER DATED: 27/04/2022 applicant and from his residential premises, two printers with green coloured pens, papers for printing fake currency notes and other material were found. Thus, from the papers of the chargesheet, it can be said that there is prima facie case against the present applicant.
9. Further, learned APP has shown apprehension that if the applicant is enlarged on bail, he will tamper with the evidence and will not be available at the time of trial. This Court has also considered the severity of the offences and punishment prescribed for the alleged offences. So far as the offences punishable under Sections 489A, 489B and 489D are concerned, the same are punishable with imprisonment for life.
10. In the case of Rajesh Ranjan Yadav @ Pappu Yadav (supra), the Hon'ble Supreme Court has observed in paragraphs 22 and 23 as under:
"22. Learned counsel for the appellant has repeatedly referred to Article 21 of the Constitution of India, 1950 and on that basis has submitted that the appellant should be released on bail particularly since he has already been imprisoned for more than six years.
23. We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society."
From the aforesaid observation made by the Hon'ble Supreme Court, it is clear that Article 21 is of great importance because it enshrines the Page 5 of 6 Downloaded on : Thu Apr 28 21:16:44 IST 2022 R/CR.MA/21505/2021 ORDER DATED: 27/04/2022 fundamental right to individual liberty but at the same time, a balance has to be struck between the right to individual liberty and interest of the society. No right can be absolute and reasonable restrictions can be placed on them. It is also observed by the Hon'ble Supreme Court that it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances such as the interest of the society.
11. Keeping in view the aforesaid observations made by the Hon'ble Supreme Court, if the facts of the present case as discussed hereinabove are considered, this Court is of the view that serious allegations are levelled against the present applicant in the FIR in question for commission of the offences punishable under Section 489A, 489B, 489C and 489D of the IPC. As observed hereinabove, this Court has also considered the punishment prescribed for the alleged offences and therefore looking to the over all facts and circumstances of the present case, this Court is not inclined to exercise discretion in favour of the applicant herein. Accordingly, this application is dismissed. Rule is discharged.
(VIPUL M. PANCHOLI, J) SRILATHA Page 6 of 6 Downloaded on : Thu Apr 28 21:16:44 IST 2022