1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (BA) NO.496 OF 2011 (SHAILESH DADAJI WADAKE //VS// STATE OF MAH. THR. PS.O. DUGGIPAR, DIST. GONDIA) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Rohit Deo, Advocate with Mr. Gadling, Advocate for Applicant. Mr. M.J.Khan, A.P.P. for Respondent. CORAM : M.N.GILANI, J. DATE : DECEMBER 02, 2011. Heard both sides. This is an application under Section 439 of the Code of Criminal Procedure for releasing the accused on bail against whom offence bearing Crime No. 104 of 2010 is registered with Police Station, Duggipar for the offence punishable under Sections 121, 121(A) of the Indian Penal Code and under Sections 17, 20, 39 of the Unlawful Activities (Prevention) Act, 1967. The prosecution case is that on 26.12.2010 at about 4.35 pm near village Khadki (Bramani), District : Gondia on National Highway No.6 one Maruti Omni Van bearing No.CG-06 B 2871 was intercepted in suspicious condition. There were five inmates in the van, including driver. During search of the person of the inmates objectionable articles which supports and encourages naxalite activities were found. Cash worth Rs.Seven Thousand was also found. All these articles were seized. During investigation complicity of the applicant/ accused No.6 was revealed and he was arrested on 27.12.2010. It is the contention of the learned counsel for the applicant that the 2 material so far collected during the course of investigation does not show involvement of the applicant/ accused No.6 in the offence registered neither there is material to show that he is member of a banned organization. The learned Additional Public Prosecutor filed reply on 03.10.2011 and subsequently a detailed reply on 26.03.2011 marked as Annexure R-1. The gist of the reply is that on 26.12.2010 accused Nos. 1 to 5 were arrested while they are travelling in Omni Car. From their possession the objectionable articles were seized. These articles point out that they are the members of a banned organization and their active involvement in the unlawful activities of the organization. As regards the present applicant/accused No.6 it is stated that : “That, the applicant No.4 Shailesh used to circulate the letters of banned organization. One of the objectionable letter found in possession of accused Bhimrao Bhovate read as “fpBB~hps mRRkj 'S' dMs lksio.ksa”. That during investigation it reveals that this “S” is used as a code word for as accused Shailesh Wakade.” In pursuance to the aforesaid material the applicant/ accused No.6 was arrested on 27.12.2010. However to point out that “S” denotes the present applicant/ accused No.6 there is no material on record. It seems that during interrogation of accused No.1 Bhimrao Bhovate name of applicant/ accused No.6 revealed. The learned counsel for the applicant/ accused made a statement that in the documents supplied along with chargesheet there is no material to link the applicant/ accused No.6 with accused Nos. 1 to 5, nor independently his involvement is discernible. 3 Considering the state of evidence, the apprehension raised by the prosecution that the accused would abscond and he is involved in anti-national activities are all irrelevant. In this view of the matter, bar of proviso to sub-section (5) of Section 43-D will not be attracted. Hence, the following order. The application is allowed. The applicant is directed to be released on bail on his executing P.R. Bond in the sum of Rs. fifty thousand with two sureties in the like amount with condition that he shall not travel beyond limits of district Gondia, without prior permission of the Sessions Judge, Gondia. JUDGE RR..