1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (BA) No. 70 of 2011 Sunilkumar Vishnudeo Prasad ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Sadar, Nagpur. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R.M.Patwardhan, Advocate for the applicant. Mr. T.A.Mirza, A.P.P. for the respondent/State CORAM : Prasanna B. Varale, J. DATED : 9th March , 2011 . Heard Mr. R.M.Patwardhan, learned Advocate for the applicant and Mr. T.A.Mirza, learned APP for the respondent/State. By the present application under Section 439 of Code or Criminal Procedure, the applicant is seeking his release on bail in connection with Crime No. 3316/2006, registered with Police Station, Sadar, Nagpur under Sections 5 and 9 of Explosive Substances Act, read with Section 3, 4 and 25 of the Arms Act and Sections 10, 13, 18, 20, 21 and 23 of Unlawful Activities Prevention Act, 1967 and Sessions Trial No. 57/2008, pending before the Ad-hoc Additional Sessions Judge-3, Nagpur during pendency of the trial. At the outset, Mr. R.M.Patwardhan, learned Advocate for the applicant has submitted that this is second application of the applicant seeking his enlargement on bail. The applicant had initially approached this Court by filing an application vide Criminal Application No. 1696/2010 on rejection of his application (Exh.4) by the learned 3rd Ad-hoc Additional Sessions Judge, Nagpur by order dated 06/10/2010 in Sessions Trial No. 57/2008. The learned Advocate for the applicant submitted that though the earlier 2 application has been rejected on merits, the present application is filed by the applicant on the ground of changed circumstances. Learned Advocate for the applicant submitted that the applicant, who is one of the accused along with (1) D.Giriprasad Laxmanacharya, (2) Shrinivas Virayya, and (3) Jaipal Nageshwarrao C.H., against whom the allegation is that the police officials apprehended one Tavera vehicle at LIC square, Kamptee Road, Nagpur and found in the search of the vehicle live cartridges and fire arms along with mobile handsets. Learned Advocate further submitted that the material against the applicant is only in the form of the statement of co- accused. He further submitted that the so called material collected by the investigating agency against the applicant is too short to connect the applicant with the said crime. According to him, it is the case of the investigating agency that one Nagarjuna is involved in the offence and the applicant is claimed to be the said Nagarjuna. The investigating agency claims that the said Nagarjuna, who is resident of State of Andhra Pradesh, at the instance of other co-accused persons, met the above mentioned other co-accused at Seoni town in the State of Madhya Pradesh. The other co-accused, who were coming from Hyderabad for purchase of some property at the instance of one Reddy, proceeded to verify the location of the property and on the way, Nagarjuna met them at Seoni. The said Nagarjuna took the vehicle from the other co-accused. The vehicle was in his custody for two hours and after two hours, Nagarjuna returned the vehicle to other co-accused and asked them to go back to Andhra Pradesh. Learned Advocate has submitted that apart from this material, there is no other material against the applicant. He further submitted that as it was alleged that the said Nagarjuna was absconding, the trial against the other co-accused was separated. Learned Advocate for the applicant has informed that the trial against other co-accused has 3 been recently concluded and they are acquitted by the learned 3rd Ad-hoc Additional Sessions Judge, Nagpur on various grounds namely insufficiency of the evidence as well as no prior sanction from the Central Government or State Government as a pre-requisite for the offence under Unlawful Activities Prevention Act. According to him, the investigating agency has miserably failed to prove that the accused were transporting the cartridges and fire arms in the said vehicle. The learned Advocate for the applicant submitted that in view of acquittal of the co-accused, the applicant, in comparison to the other co-accused, is on better footing. He further submitted that now as the material which was collected by the investigating agency, has been assessed by the learned Sessions Judge and found the same too short to connect the accused persons with the crime, which resulted into their acquittal, in such a situation there is hardly any chance for the prosecution to be successful against the applicant. Mr. Parwardha, learned Advocate for the applicant submitted that the investigating agency has also miserably failed to establish the identity of the applicant. The investigating agency proceeded against the applicant on the statement of restaurant/dhaba owner, which was recorded on 29/6/2006 and on the statement co- accused. The said dhaba owner had given rough description of the application. The learned Advocate, by referring to the material, particularly the statements of police officials namely Vinod Thakur and Amol Ingale, submitted that a computer sketch of the applicant was prepared by these police officials on 02/1/2007, but the investigating agency having that computer sketch available with them, for the reasons best known to them, had not shown that computer sketch/portrait to the dhaba owner nor conducted any identification parade so as to establish the identity of the applicant. 4 Mr. Parwardhan, learned Advocate for the applicant submitted that the applicant, who is from the State of Uttar Pradesh, having not conversant with the local language and only on suspicion and statement of co-accused, is falsely implicated in the said crime. Learned Advocate by relying on the judgment of this Court in the case of Mohammad Asgar .vs. State of Maharashtra, reported in 2004(1) Crimes 202, submitted that though the applicant is from the State of U.P., his presence can be secured by imposing certain conditions. Per contra, Mrs. Maldhure, learned APP for the State, has vehemently opposed the application on the ground that the offence is serious in nature. She has also expressed an apprehension that the applicant is from the State of U.P. and if he is released on bail, he will not be available for conducting the trial. Perused the material placed on record. It is not in dispute that the applicant/accused was arrested on 18/5/2010. The material against the applicant is the statement of co-accused, against whom the trial was proceeded and the co-accused has been acquitted by the learned Sessions Judge, Nagpur. Perusal of the material further show that inspite of availability of computer sketch/portrait of the application, no effort was made by the investigating agency to establish the identity of the applicant. It is also not in dispute that the applicant is behind the bars for more than 9 months and yet the investigating agency has not established the identity of the applicant as 'Nagarjuna', as alleged, with the cogent and reliable material. On considering the material and hearing the learned Advocate for the applicant and learned APP for the State at length, I am of the opinion that the applicant has made out a case for his release on bail. The apprehension expressed by learned APP in 5 respect of non-availability of the applicant can be taken care of by imposing certain conditions on the applicant. In the result, the application is allowed. The applicant - Sunilkumar Vishnudeo Prasad be released on bail in Crime No. 3316/2006, registered at Police Station, Sadar, Nagpur, on furnishing P.R. bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one solvent surety in the like amount, on the following conditions. a] The applicant to cooperate with the investigating agency and attend the police station, Sadar, Nagpur on every Sunday between 9.00 a.m. to 12.00 noon, for a period of six months from today or till conclusion of the trial, whichever is earlier. b] The applicant shall not tamper with the prosecution evidence nor commit any act such as contacting the prosecution witnesses or pressurize them. c] The applicant to submit his residential address and his contact numbers such as phone/mobile numbers to the investigating agency. d] In case the applicant is moving to any other place than the place of his residence, he shall inform the investigating agency about his visit to other place. In case of breach of these conditions, the prosecution agency to take necessary steps in accordance with the provisions of law. JUDGE Diwale