- (1.) M. Chaudhary, J. This is a crimi nal appeal filed by surety appellant Feeka from order dated 1st of August, 2006 order ing the surety to deposit Rs. 50, 000, 00 amount of surety bond as penalty.
(2.) BRIEF facts giving rise to this ap peal are that accused Basa was facing trial under section 8/15 Narcotic Drugs and Psychotropic Substance Act in Special Case No. 108 of 2003 State v. Basa. In that case when the accused was granted bill appel lant Feeka Fukka and one Banarsi stood sureties for him. In the special case afore said arguments were heard on 21st of July, 2006 and the case was fixed on 28th of August, 2006 for judgment. That day an application was moved on behalf of the accused for exemption from his personal attendance which was allowed. However on 28th of July, 2006 accused Basa did not appear. Hence surety bonds of both the sureties were forfeited and it was ordered that notices be issued to the sureties to show cause as to why the amount of surety bonds be not realized from them. Judgment was also pronounced in the case convicting accused Basa and the case was listed on 29th of July, 2006 for hearing on the point of sentence. On 29th of July, 2006 the case was taken up and since none of the sureties was present notices were issued to the SHO as to why the proceedings be not taken against him under section 187ipc and sec tion 29 of the Police Act fixing 1. 8. 2006. Notice was issued to surety Feeka @ Fukka on 29th of July, 2006 which was served on his son Vakila @ Keela and Feeka @ Fukka was not present at his house. On 1st of August, 2006 it was ordered that none was present on behalf of surety appellant Feeka to file reply of the notice and he should deposit Rs. 50, 000, 00 amount of the surety bond as penalty and recovery warrant be issued accordingly. On 2nd of August, 2006 accused Basa surrendered in the Court of Additional Sessions Judge concerned. An application was moved by surety Feeka @ Fukka also that very day that accused Basa who is his son was a truck driver and had, gone out of the District and that since no notice was served upon him he could not appear in the Court on 1st of August, 2006 and therefore, impugned order dated 1st of August, 2006 should be withdrawn. That application was rejected by the Court be low observing that he had no power to re view the impugned order. Heard the appellant's learned Counsel and learned A. G. A. for the State respondent as well.
(3.) A perusal of the record goes to show that on 28th of July, 2006 since ac cused Basa did not appear his surety bonds were forfeited and it was ordered that no tices be issued to the sureties to show cause as to why amount of the surety bonds be not realized from them and the case was ordered to be listed on 29th of July, 2006. A perusal of the record goes to show that no tices were issued to surety Feeka on 29th of July, 2006 finding 1st of August, 2006 which were served on his son Vakila @ Keela as he was not present at his house that time. The sureties should have been given sufficient time to show cause. In the instant case notices were issued on 29th of July, 2006 and served upon Feeka's son Vakila @ Keela on 1st of August, 2006 itself as Feeka was not present at his house. On 2nd of August, 2006 surety Feeka moved an application for setting aside impugned order dated 1st of August, 2006 asking him to deposit the amount of surety bond as penalty. On 2nd of August, 2006 accused Basa also surrendered in the Court. In view of above facts the Court is of the view that order dated 1st of August, 2006 asking surety appellant Feeka @ Fukka to pay Rs. 50, 000, 00 the amount of surety bond as penalty was not justified and is liable to be set aside.;