MATABHAI SHAKRABHAI BARIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE. Mr. R. C Kodekar, learned additional Public Prosecutor waives the service of notice of rule for the respondents.

(2.) PRESENT application under sec. 389 of the Code of Criminal Procedure, has been filed by the applicant - convict who has been convicted for the offence punishable under sec. 18 of the N. D. P. S Act having found to be in possession of 12 kilograms morphine and who has been sentenced to undergo Rigorous Imprisonment for 10 years with fine of Rs. 1 Lac and in default to make the payment of fine, to undergo simple Imprisonment for a further period of six months, for releasing him on temporary bail for a period of four weeks on the ground of marriage ceremony of his younger son which was scheduled on 27/12/2008.

(3.) AT the outset, it is required to be noted that the applicant came to be convicted by the learned Additional Sessions Judge, court No. 7, Ahmedabad vide judgement and order dtd. 23/9/2005 and the appeal came to be preferred by the applicant on 16/ 1/2007 which came to be admitted by the division Bench of this Court on 4/4/2007. Considering the Jailsheet Report, it was found that the applicant was released on parole by the competent authority i. e. I. G. Prison in all for 135 days, more particularly initially for 25 days from 25/5/2006 to 18/ 6/2006; thereafter for a period of 30 days from 1/12/2006 to 30/12/2006 and thereafter for 80 days from 8/3/2007 to 26/ 5/2007. It was also found that when the applicant was lastly released on parole from 8/3/2007 to 26/5/2007, not only the appeal was preferred by the applicant - original accused but the appeal was already admitted by this Court and once the appeal is entertained by this Court, the authority would not have any jurisdiction to release the convict on parole.