NANU GORDHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) How indeed sometimes even a slight, undreamt of even error due to the lack of desired judicial alertness and the precision on the part of the learned Judge and that too at the fag-end and on just flashing point of passing the final order releasing the accused on bail can simultaneously back-fire resulting into seriously prejudicing and damaging the interest of the poor accused frustrating and virtually writing-off the very order of the bail itself is amply illustrated in the instant case .There is indeed no doubt whatsoever that the error committed by the learned Judge appears to be quite an inadvertent and bona fide one, which can be even committed sometimes by any one of us . However, the precise unfortunate situation which has surfaced in the instant case and that may also as well arise in some such other cases in future calling immediate attention is - where the illiterate, ignorant, persons reeling under the abject poverty complex is unable to release himself on bail would quite justifiably feel crushed and cursed alleging that the entire system of monetary bail is as if anti-poor and that the law, liberty and justice were the privilege and monopoly of some affluents few and/or at the most for some middle class persons in the society, if indeed urgent due care and circumspection is not evinced in the first place while fixing the bail amount, and in the second place, ordering the surety of the like amount to be furnished by the accused .Under the circumstances, the most vital and the searching question that stares right into the eyes of this Court and confronts it is the question whether there can be any meaningful guidelines which can reasonably, if not entirely meet with and the salvage such an unsavoury situation, and thereby allay the apprehensions or atleast minimise the same of the poor accused persons . Bearing in mind this vital question, some efforts are being made in the course of this judgment to find out as to how and indeed what best possible can be done by evolving some guidelines to help out utterly poor accused languishing in jail, unable to secure and get released on bail because of the economic disability.

(2.) Now, turning to the alleged facts of the present case briefly, according to the complainant PSI-S.G Kumpavat, on 23-2-1990 at 18-45 hours, when he alongwith other police constables was patrolling the Bor Talav area, near the gate of Bal-Vatika, he saw one person (the petitioner herein namely Nanu Gordhan) and immediately on getting suspicious over his conduct and movement, stopped and searched him in the presence of the Panchas and in the process recovered five grams of 'Charas', valued at Rs. 80.00 only from his pant pocket, for which he had neither any pass nor permit. Accordingly, after this muddamal was seized under the Panchnama and the accused came to be arrested on the spot, on the basis of this allegation, a complaint was filed against him for the alleged offences under Secs. 8 and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Narcotic Act") at "A" Division Police Station, Bhavnagar, which came to be registered as CR No. 93 of 1990. Thereafter, the petitioner-accused who had been sent to the judicial custody from jail made an application dated 4-6-1990 Exh. 1 addressed to the Sessions Court, Bhavnagar inter alia praying for releasing him on bail on the ground that though he was arrested as long back as on 23-2-1990 for the alleged offences under the Narcotic Act, and thereafter about 110 days had passed as an under-trial prisoner, no charge-sheet has been submitted against him. This particular application was forwarded to the Sessions Court, Bhavnagar by the Superintendent, District Prison, Bhavnagar, by a forwaridng letter dated 5-6-1990 vide reference No. 1137 of 1990. On receipt of the said bail application on 6-6-1990 and after the same came to be numbered as Misc. Criminal Application No. 352 of 1990, the learned Sessions Judge, Bhavnagar, issued notice to the learned P.P. fixing the hearing of it on 11-6-1990. Incidentally, it may be stated that on perusal of the record, it appears that the apprehension of the petitioneraccused that the charge-sheet was not filed in the Court within 90 days appears to be not wholly correct, as the same was filed in the Court of the Chief Judicial Magistrate on 8-5-1990 but unfortunately the copies of the same were received late by the petitioner in jail on 22-1-1991.

(3.) The learned Sessions Judge ultimately on going through the police papers and taking into consideration the overall peculiar facts and circumstances of the case as has been stated in para 5 of his judgment viz., (i) that the accused was found in possession of small quantity of 'Charas' worth 5 grams, valued at Rs. 80.00 only; (ii) that the investigating agency in its turn also believing that the said muddamal was for his personal use and consumption, had thought it fit to prosecute him under Secs. 8 and 27 of the Narcotic Act; (iii) that the punishment provided for the alleged offences under Secs. 27(a) and 27(b) of the Narcotic Act were one year or the fine and six months or fine, or both, respectively; (iv) that probably there were no other criminal antecedents against the accused, and (v) that the accused was a person residing within the jurisdiction of the Court and that he was not likely to abscond, if he was so released on bail, etc. etc,. ordered to release him on bail on his executing personal bond of Rs. 5,000.00 and furnishing the solvent surety of the like amount with certain other further conditions. Now as the misfortune would have been, the accused despite the fact that he did obtain order of bail in his favour and yet he could not avail of the said benefit due to the curse of his extreme poverty which outrightly prevented him from complying with unrealistical, excessive, harsh and unjust order of furnishing solvent surety of Rs. 5,000.00 .It is under these gruelling circumstances that feeling utterly exasperated, down and dejected over his hard fate that the poor accused by this petition dated 20-6-1991 routed through the Superintendent, District Prison, Bhavnagar, has moved this Court inter alia praying for expeditious trial. The tale of woe depicted in the said application to be recapitulated is to the effect (i) that he is extremely poor and is languishing in jail for last about 19 months by virtue of an allegation and an arrest under the Narcotic Act, (ii) that he is the only bread-winner of family consisting of his wife and small children of tender age, who as a result of his incarceration in jail are rendered destitute and practically put on the street, (iii) that though he was ordered to be released on bail by an order dated 13-6-1990, more than 12 months have been passed and still however, because of his abject poverty he has not been able to furnish the solvent surety of Rs. 5,000.00 to come out of the jail ..