SARTORI LIVIO Vs. STATE

JUDGEMENT

(1.) The learned counsel for the petitioner submits that the alleged recovery from the petitioner is of 20 gms of charas and 20 gms of smack, both of which are far below the commercial quantity. He further submits that this is the second application for bail. Earlier, the application for bail was rejected by this court on 04.11.2004. He says that since then, four more witnesses have been examined and there are several contradictions in their statements with regard to the recovery and the manner in which the samples have been sent to the FSL for testing. He also submits that insofar as 20 gms of charas are concerned, the punishment would be of six months only and that period has already been undergone by the petitioner, who is in judicial custody since 26.06.2004. The learned counsel for the petitioner, therefore, argued that as the bar of Section 37 of the NDPS Act would not be applicable, this is a fit case in which the petitioner, who is an Italian national, should be granted bail.

(2.) The learned counsel for the State opposed the grant of bail. He submitted that the petitioner is an Italian national and if he is released on bail, there is every likelihood that he may flee from justice. In fact, he pointed out to the order dated 04.11.2004 wherein this very fact has been noted. In support of this, the learned counsel for the petitioner placed a decision of a learned single judge of this court in the case of Nasimjon Komlov v. Customs in CRLM (M) No.2038/2000 dated 31.07.2000. He referred to the following portion thereof:-

(3.) In view of this judgment, with which I am in agreement, it is clear that just because a foreign national is involved, it does not mean that he is to be denied the benefit of bail. Keeping in view all the facts and circumstances of the case and after having heard the learned counsel for the parties, I direct that the petitioner be released on bail on furnishing a personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the concerned trial court. The petitioner's passport shall remain in the custody of the I.O. concerned with the further condition that the petitioner shall not leave the National Capital Region without the prior permission of the concerned court.