Bombay High Court
Balu S/O. Sahebrao Mohite vs The State Of Maharashtra on 29 November, 2018
Author: P.R.Bora
Bench: P.R.Bora
{1} 938 BA 1389 OF 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
938 BAIL APPLICATION NO. 1389 OF 2018
Balu s/o Sahebrao Mohite
Age: 51 years, Occu.: Labour,
R/o.Khandal, Tq.Murtizapur,
Dist.Akola. ..Applicant
(Orig. accused)
Versus
The State of Maharashtra,
Through the Police Officer,
Gondi Police Station, Tq.Ambad,
Dist.Jalna. ..Respondent
...
Advocate for Applicant : Shri P. P. More
APP for Respondent - State : Shri S.D.Ghayal
...
CORAM : P.R.BORA, J.
DATE: 29th November, 2018
PER COURT:-
1 Heard Shri P.P.More, learned Counsel for the applicant and
Shri S.D.Ghayal, learned APP appearing for the respondent State.
2 The applicant is being prosecuted for an offence under Section
20 of the Narcotic Drugs and Psychotropic Substance Act, 1985
(hereinafter referred to as 'the NDPS Act') in Crime No.173 of 2018
registered at Gondi Police Station, Tq.Ambad, Dist.Jalna. The
::: Uploaded on - 29/11/2018 ::: Downloaded on - 30/12/2018 11:32:14 :::
{2} 938 BA 1389 OF 2018
learned Counsel for the applicant submitted that the Sessions Court
has rejected his application for bail only on the ground that he was
found transporting the contrabands in the commercial quantity of
20kg. The learned Counsel by bringing to my notice the definition of
the 'commercial quantity' as prescribed under Section 2(viia) of the
NDPS Act and reading out the bar as provided under Section 37 of
the Act, submitted that the said bar is not applicable to the present
case even if the case of the prosecution is accepted as it is. The
learned Counsel submitted that since all the material investigation is
over, there is no need to keep the applicant behind the bar for
indefinite period. In support of his submission, the learned Counsel
relied upon the Judgment of the High Court of Orissa at Cuttak in the
case of Anil Kumar Dash Vs. State of Orissa [MANU/OR/0410/2015] . The
learned Counsel has, on the aforesaid ground, prayed for release of
the applicant on bail.
3 Shri S.D.Ghayal, learned APP appearing for the respondent -
State has opposed for granting bail to the present applicant and
supported the order passed by the Sessions Court. The learned APP
submitted that though the charge-sheet has been filed, considering
the quantity of the contrabands i.e. 20kg, the applicant is not liable
::: Uploaded on - 29/11/2018 ::: Downloaded on - 30/12/2018 11:32:14 :::
{3} 938 BA 1389 OF 2018
to be released on bail. Learned APP further submitted that the
applicant is resident of Akola District and is also likely to indulge in
commission of such crime again.
4 After having considered the submissions of the learned Counsel
for the parties, more particularly, after having gone through the
contents of the Judgment relied upon by Shri P.P.More, learned
Counsel for the applicant and in light of the said Judgment after
having read the definition of 'commercial quantity' and the provisions
under Section 37 of the NDPS Act, it appears to me that the facts
involved in the present case are akin with the facts involved in the
case before the High Court of Orissa at Cuttak. In view of the
aforesaid Judgment, the quantity of contrabands found to be
transported by the present applicant, cannot be held to be
'commercial quantity' and as such, bar under Section 37 of the Act,
may not apply. In view of the fact that the entire investigation has
been completed, there seems no propriety in keeping the present
applicant behind the bar for indefinite period. Mere fact that the
applicant is resident of another District, it cannot be a bar to grant
him bail, if otherwise he is found entitled for bail. Apprehension
expressed by the learned APP of recurring of such offence by the
::: Uploaded on - 29/11/2018 ::: Downloaded on - 30/12/2018 11:32:14 :::
{4} 938 BA 1389 OF 2018
applicant also appears to be unfounded. The learned Counsel for the
applicant submitted that there are no criminal antecedents to the
applicant. The prosecution has also not brought on record any
evidence in that regard. In the circumstances, I am inclined to allow
the application. Hence, the following order:-
ORDER
I) The application is allowed.
II) The applicant be released on bail on his executing P.R. Bond in the amount of Rs.50,000/- with one or more local sureties in the like amount.
III) The applicant shall not tamper with the prosecution evidence.
IV) Bail before the Trial Court.
(P.R.BORA) JUDGE SPT ::: Uploaded on - 29/11/2018 ::: Downloaded on - 30/12/2018 11:32:14 :::