1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1250 OF 2009 IN CRIMINAL APPEAL NO.1005 OF 2009 Mr. Nadeem Aziz Merchant @ Nadeem Chikna .... Applicant. V/s The State of Maharashtra .... Respondent. Mirza Yadullah with Sharif Shaikh for the appellant. Mr H.J. Dedhia, APP for the State. CORAM: V. M. KANADE, J. DATE : 5th July, 2010 P.C.:- 1. Heard the learned Counsel for the applicant and the learned APP for the State. 2. Applicant has been convicted for an offence punishable under section 402 of the Indian Penal Code and under sections 3 & 4 read with section 25 of the Arms Act and is sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs 1000/- and in default to suffer further rigorous imprisonment for one month. 2 3. The learned Counsel appearing on behalf of the applicant submits that the applicant has already undergone 17 months of sentence out of 4 years awarded to him. It is further submitted that the prosecution has examined all Police Officers and only other independent witness is the panch. The learned Counsel submitted that the panch witness in his cross-examination has admitted that he has acted as panch along with other panch witness for the said Police Station on 7 to 8 occasions. It is then submitted that the applicant was illegally detained by the police. This fact has been established by the applicant by examining Dr. Lobo – D.W.1 who has stated that the applicant was produced before him for eye treatment. The learned Counsel submitted that one of the prosecution witnesses viz. P.W.7 has admitted that the applicant was produced before Dr. Lobo. He has, however, not given the exact date. It is submitted that certificate given by the doctor had been on record. It is further submitted that though there are other cases pending against the applicant, he has been released on bail in all these cases. 4. The learned APP appearing on behalf of the State submitted that as many as 25 cases are pending against the present applicant and if he is released on bail he may not be available for other cases since he is likely to abscond. 5. After having heard the learned Counsel appearing on 3 behalf of the applicant and the learned APP appearing on behalf of the State, in my view, taking into consideration the peculiar facts and circumstances of this case, applicant deserves to be released on bail on the following grounds. 6. Firstly, it has been brought on record by the defence that the applicant was produced before Dr. Lobo on 20/2/2009 which was two days before the actual date of incident. The fact that the applicant was produced before Dr. Lobo also has been admitted by P.W.7. Though the said witness was unable to give the exact date, he did admit in his cross-examination that the applicant was produced before Dr. Lobo for eye treatment. This material on record creates a doubt about the case of the prosecution. Secondly, only other independent witness in the present case is the panch witness who admitted that he acted as panch witness for Chamber Police Station on 7 to 8 occasions. Thirdly, the applicant has already undergone 17 months of sentence out of four years awarded to him. If the period of remission is taken into consideration then the applicant has undergone 50% of the sentence. Under these circumstances, therefore, applicant deserves to be released on bail. 7. Applicant be released on bail on execution of P.R. Bond in the sum of Rs 5000/- with one or two sureties in the like amount. He shall report to the concerned Police Station once in a week. He shall not leave City of Mumbai without 4 taking permission from the Trial Court. 8. Application is disposed of. (V.M. KANADE, J.)