HEMARAM DHANARAM DEVASI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application is filed under Sec. 439 of the Code of Criminal Procedure for regular bail in connection with F.I.R. No.11195003210788 of 2021 with Amirgadh Police Station, District Banaskantha, for the offences punishable under Ss. 8(C) , 17(C) , 29 of the NDPS Act.

(2.) Learned advocate for the applicant submits that the applicant is not named in the FIR but on subsequent day of the FIR, when main accused was in custody, the main accused revealed the name of the applicant and due to the statement of the main accused that he collected the drugs from the applicant, the applicant came to be arrayed as an accused in the present case. On the basis of such statement, the Investigating Authority started tracing the applicant for assisting in the investigation but the applicant could not be contacted. Charge sheet came to be filed on 18/12/2021. After filing of charge sheet also, as the applicant was shown absconding by the Investigating Officer, warrant under Sec. 70 of the Criminal Procedure Code was issued. The applicant was unaware about the aforesaid fact and therefore, there was no question of the applicant appearing before the Investigating Officer. Afterwords the applicant came to know about the aforesaid FIR. Thereafter, as the applicant was apprehending his arrest in view of the aforesaid, he filed an application for anticipatory bail before the court below which came to be rejected. Thereafter, the applicant approached this Court for grant of anticipatory bail wherein vide order dtd. 27/04/2022 passed in Criminal Misc. Application No.2979 of 2022, co-ordinate bench of this Court, granted protection from arrest to the applicant as well as directed the applicant to report before the Investigating Officer on 05/05/2022. Pursuant to the said order dtd. 05/05/2022, the applicant remained present before the Investigating Officer and got his statement recorded on 05/05/2022. However, thereafter, said application was withdrawn on 30/06/2022. Thereafter, the applicant was arrested on 18/07/2022 and since then he is in jail. Thereafter after filing of charge sheet qua the applicant, the applicant preferred regular bail application before the court below which was rejected and hence, present application.

(3.) Learned advocate for the applicant submitted that the applicant is innocent and not committed any offence as alleged. He submitted that there is no evidence to connect the applicant to the alleged offence. He submitted that this is a case where investigation is based on further evidence which does not require presence of the applicant when charge sheet is filed. He submitted that learned court below ought not to have rejected application of the applicant citing him absconded as the applicant was unaware of the fact of the FIR qua the main accused. He submitted that there is no direct connection of the phone calls of the applicant with one Bhanaram i.e. also before about 30 days of the FIR with the offence alleged. He submitted that said Bhanaram is also released on regular bail. He submitted that allegations against the applicant were based upon statement of the co- accused. He submitted that the applicant has no antecedents and custodial interrogation is also not required. He, therefore, submitted that the applicant may be enlarged on regular bail by imposing suitable conditions.