DHANSUKHBHAI BALWANTRAI MODI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard ld. counsel Mr. AD Shah for the petitioner. In compliance with the order passed by the Court, the papers of investigation have been brought before the Court today. On perusal, it appears that the present petitioner is shown absconding in the chargesheet prepared on 20.03.2004 and submitted to the Court on 28.04.2004. From the document annexed to the petition at page-9 and the decision dated 29.07.2004, Annex.B at page-10 of this Court in Spl.Cri. Application No.94/2004, it is clear that the petitioner was protected from formal arrest by the orders passed by the Court. So, it, prima facie, emerges from the record that except the statement of main accused who has been chargesheeted, no independent evidence is available. On careful consideration of the papers of investigation tendered before the Court today and ratio of the decision of this Court in the case of Ranjitsinh Dolatsinh Waghela v/s State of Gujarat (Cri.Misc. Application No.7323/2001) decided on 18.01.2002, there is ample force in the say of ld. counsel Mr. Shah that the prosecution instituted against the petitioner can not sustain.

(2.) This Court while dealing with the above-cited case, a matter concerning the offence punishable under the NDPS Act, has rightly held that the name of the present petitioner ought not to have been shown as a person absconding because the day on which the chargesheet was prepared and filed, the investigating agency had no legal evidence involving the present petitioner into the offence. I have considered the ratio of the decision of the Apex Court in the case of Roy V.D. v/s State of Kerala, (2000) 8SCC 590, and Gomaram Somaram Jat v/s U.H.Patel & Anr., 2000(1) GLR 99. Both these decisions were considered by this Court in dealing with the case in the above-cited decisions. So, adopting the reasons assigned by the Court while considering the aforesaid decisions, this petition can also be allowed.

(3.) Hence, Rule. Service of Rule is waived by ld. APP Mr. AY Kogje for the respondent State. Rule is fixed forthwith.