ARVIND NATVARLAL SONI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) (Rule. Mr. D. N. Patel, the learned A.P.P. appearing for the respondent-State waives service of the Rule. Heard Mr. P. D. Shah, the learned Advocate appearing for the. petitioner and Mr. D. N. Patel, the learned A.P.P.) 1. The petitioner-Arvind Natvarlal Soni, who came to be arrested in connection with C. R. No. 335 of 1983, registered at Junagadh City Police Station for the alleged offence punishable under Sec. 66(l)(b) of the Bombay Prohibition Act, 1949 (for short 'Prohibition Act'), on the charge of having been found in possession of 'chalam' (pipe) and 'charas' weighing 0.5 grams, which subsequently came to be modified and substituted as offence punishable under Sec. 27(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'Narcotics Act'), has by this Application moved this Court for getting himself released on bail, challenging the impugend judgment and order, dated 3-4-1992, passed by the learned Sessions Judge, Junagadh, whereby his bail application came to be rejected.

(2.) Few Relevant Facts : The prosecution case as alleged in the F.I.R. is to the effect that on 19-7-1988 at about 2-00 a.m. when P.S.I. Chudasama was on a night-patrolling round in Junagadh City, he found the petitioner in a suspicious condition and on making inquiry and taking physical search of him, one 'chalam' (pipe) and a small pallet of 'charas' weighing about 0.5 grams were found from his possession for which he had neither any pass nor permit nor any explanation. On the basis of the aforesaid facts, after drawing necessary Panchnama, a complaint came to be filed as C.R. No. III-335 of 1988 at Junagadh City Police Station. Thereafter, the petitioner was produced before the learned Magistrate, who in turn was pleased to release him on bail. After the investigation of the case was over, the Police submitted a chargesheet on 20-11-1988 against the petitioner to stand trial for the aforesaid offence before the learned Chief Judicial Magistrate, Junagadh, which came to be registered as Criminal Case No. 5930 of 1988. It further appears that on 31-3-1992, after about 4 years of the alleged incident, on the learned Magistrate taking a view that the offence alleged against the petitioner being under Sec. 27 of the Narcotics Act, he was required to be taken into custody and accordingly he was ordered to be re-arrested. This order of the learned Magistrate was challenged by the petitioner before the learned Sessions Judge, Junagadh, by filing Misc. Criminal Application No. 332 of 1991, which as stated above, came to be rejected by an order dated 3-4-1992, giving rise to the present bail application.

(3.) Mr. P. D. Shah, the learned Advocate appearing for the petitioner while pressing hard for the bail of the petitioner, has highlighted and pressed into service the following circumstances to be taken into consideration for releasing the petitioner on bail. They are ; - 1. That the alleged incident wherein the petitioner was found in possession of 'chaLam' (pipe) and 'charas' weighing about 0.5 grams only, took place long back about 4 years on 19-7-1988 (Emphasis supplied). 2. That immediately after the arrest on 19-7-1988 the petitioner was ordered to be released on bail and since then he was at large. 3. That in between the period, that is to say. from 19-7-1988 till the date on which the petitioner was once again taken into custody on 31-3-1992, he is not alleged to have abused his liberty while on bail by repeating the same or similar offence. 4. That the case of the Investigating Agency itself in column No. 5 of the chargesheet, at its highest best, is to the effect that 'chalam' (pipe) and 'charas' which were found from possession of the petitioner were for his personal use and consumption only. This only means at this stage that the case of the petitioner squarely fell within the ambit of Sec. 27(a) of Narcotics Act, for which the sentence provided is only one year or fine or both. 5.That the petitioner has got roots in the soil inasmuch as he is living with his family in Junagadh City since last many years and therefore he was not likely to abscond. 6.That the petitioner is the only earning member of his family. 7. That the wife of the petitioner is suffering from TB and there was none to take care of her health. On the basis of the aforesaid submissions, Mr. Shah further urged that assuming without admitting that there exists some prima facie case against the petitioner under the Narcotics Act, even then having regard to the peculiar facts and circumstances streamlined above, there indeed was no justifiable ground for the learned Magistrate to cancel the earlier bail and take the petitioner back in custody once again after about four long years. Mr. Shah under the circumstances finally urged that this is one of the fittest case wherein the petitioner easily deserves to be released on bail on mere asking for it.