Rameshbhai Dhamabhai Jaru vs State Of Gujarat

A.S. Supehia, J

Heard the learned advocates for the respective parties.

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail In connection with the FIR being C.R.No.11993007211402 of 2021 registered with Gandhidham ‘B’ Division Police Station, District Kutch (East) - Gandhidham for the offences under Sections 278 and 285 of the Indian Penal Code 1860 (IPC) and Sections 3, 7 and 11 of the Essential Commodities Act, 1955.

It is alleged in the impugned F.I.R. that on 07.07.2021, Head Constable – Narsibhai Kanabhai along with other officers were on patrolling in Gandhidham area and at around 00:10 hrs, they received an information that at Padana, behind Panchratna Market at Survey No.131, bearing Plot No.7, one Rameshbhai Dhanabhai Jaru-applicant is filling his tanker bearing registration No.GJ-12-Y-8871 with suspicious petroleum product by fitting a nosal pipe to the electric motor. When the officers went for raid, the applicant was found filling his tanker through a nosal electric tanker. Upon finding the same, the officers seized the tanker along with the contents therein and sent it to the Mamlatdar being the appropriate authority for further examination. The seized muddamal consisted the tanker of approximately Rs.7,00,000/-, Nosal meter and electric tanker valued at around Rs.10,000/- and alleged 8000 liters of bio-diesel, which was valued at Rs.5,20,000/-.

Learned advocate for the applicant has submitted that the offences punishable under Sections 278 and 285 of the IPC are bailable offences and so far as offences under the provision of the Essential Commodities Act, 1955 are concerned, in the F.I.R. it is mentioned by the Investigating authority that the substance being transferred was base oil, which may be used in preparation of bio-diesel. He has submitted that the applicant runs a transport company by the name of M/s. Roopal Logistics and on the date of alleged incident, the applicant was merely transporting Columbia oil to M/s. Shree Ramdoot Oil Industries LLP. and applicant is not a trader of the said oil but was merely transporting the same. It is submitted that even if it is assumed that the said substance was bio-diesel, then also bio-diesel is not an essential commodity and is not a prohibited good as enumerated in the Essential Commodities Act and the provision of the said Act would not apply and as such there is no requirement of taking license under the Act for transporting the said commodity.

4.1 Learned advocate for the applicant submitted that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. He further submitted that the applicant will keep himself available during the course of investigation, as well as trial also and will not flee from justice.

4.2 Learned advocate for the applicant, on instructions, submitted that the applicant is ready and willing to abide by all the conditions, including imposition of conditions with regard to powers of investigating agency to file an application before the competent Court for his remand. He further submitted that upon filing of such application by the investigating agency, the right of the applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted bail.

On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent–State has opposed grant of bail looking to the nature and gravity of the offence.

Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant bail to the applicant.

This Court has considered following aspects;

(a) that the offences under Section 278 and 285 of the IPC are the bailable offences;

(b) that the substance being transported was base oil/Columbia oil and not bio-diesel;

(c) that the applicant is not a trader of the said oil and was merely transporting the same;

(d) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary at this stage;

Looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant.

This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312.

In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with FIR being C.R.No.11993007211402 of 2021 registered with Gandhidham ‘B’ Division Police Station, District Kutch (East) - Gandhidham on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he :

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 19.04.2022 between 11.00 a.m. and 2.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week.

Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide if on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the concerned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this bail order.

At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

Learned advocate for the applicant is also permitted to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.