IN THE COURT OF SESSIONS FOR GR. BOMBAY AT MUMBAI
BAIL APPLICATION NO. 05 OF 2023
CNR NO.MHCC02-000091-2023
Mr. Swapan Gopal Santra
R/a: Jai Ambe Colony,
Khede- Golavali,
Kalyan (East) 421306
… Applicant/
Accused
Versus
State of Maharashtra
(At the instance of N.M.Joshi Marg
Police Station vide C. R. No.I-1056 of 2022) … Respondent/
Orig. Complainant.
Ld. Advocate Mr. Sushant Babur for applicant/accused.
Ld.APP Mr. Ramesh Siroya for the State.
CORAM : HIS HONOUR THE ADDL. SESSIONS JUDGE
SHRI. M.S. KULKARNI (C.R.NO.56)
DATED : 17th January, 2023.
(DICTATED AND PRONOUNCED IN OPEN COURT)
ORAL ORDER
1.

This bail application is in respect of C.R.No.I-1056 of 2022
registered with N. M. Joshi Marg Police Station dated 20.11.2022 for
the offences punishable under Sections 381 and 411 of the Indian Penal
Code.
2.

The applicant/Accused was arrested on 20.11.2022. He was in
police custody till 28.11.2022 and since then he has been in Judicial
Custody.
3.

The FIR was lodged by one Chiraj Nanji Sangoi, who has been
engaged in the business of manufacturing of gold ornaments.

The
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applicant/accused was his servant as a office boy. FIR is lengthy but the
crux of the FIR is that, the first informant was having doubt that
someone has been stealing golden mixed dust which is used for the
manufacturing of golden articles.

On 19.12.2022 in the evening at
about 07.00 p.m the applicant/accused found with one bag weighing
near about 9 kg., having gold mixed dust. As per the contention of the
first informant the 40 grams gold was available in the said 9 kg. dust
and the applicant/accused was stealing the said dust from the premises.
The first informant had also lost dust having near about 60 grams of
gold.

Accordingly, he lodged FIR against the applicant/accused for
stealing 100 grams of gold, from his shop premises.
4.

During the investigation it was revealed that the applicant/
accused would sale said gold to one Hasib Shaikh. Accordingly,
Investigating Officer collected 10 grams gold ingot from Hejib Shaikh.
It was further revealed that applicant/accused would sale the gold to
other firms namely N.K. Gold and Ganesh Tanch, also, and accordingly
from one Abhijit Mevalal Gupta, the investigating officer seized 7 grams
gold ingot. It is further alleged that the applicant/accused had in fact
stolen gold amounting to 400 grams and only gold of 169 gram came to
be seized, so remaining 231 gram gold yet to be recovered from him.
5.

The Applicant/accused has asked for bail on the grounds that;
a. He has been falsely implicated.
b. There is no evidence to prove his involvement in the
alleged crime.
c. He is not received any monetary benefit.
d. He was salaried person in the office and is not concerned
with the crime.

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e. Nothing has been recovered from him during the
investigation.
f. He is permanent residence of Vitthalvadi, Kalyan and he
is ready to abide by any condition imposed by the court.
6.

Prosecution has objected bail on the ground that;
a.

231
grams
gold
yet
to
be
recovered
from
the
applicant/accused.
b.

If the applicant/accused is released on bail he will pressurize
prosecution witness and the first informant.
c.

If applicant/accused released on bail he will commit same
offence in future and flee away from the justice.
7.

I heard the learned advocate Mr. Sushant Babur for the applicant/
accused and Learned APP Mr. Siroya for the State at length.
8.

The applicant/accused had been in the custody of the IO for
considerable period but nothing has been recovered from him.

No
doubt the recovery is shown from two gold smiths as per his disclosure
statement, but from him personally is no recovery is shown. The first
informant is restricted his FIR for theft of 100 grams of gold, but during
the investigation it is shown that there was theft of total 400 grams
gold. Whatsoever, may be, investigation is almost over. For near about
one and half month the applicant/accused has been behind the bar.
Only on the ground that remaining gold yet to be recovered, his liberty
cannot be curtailed. It is uncertain when the trial will commence and
will reach to its logical conclusion.
9.

In the case in Sanjay Chandra Vs. Central Bureau of Investigation
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2012 CRI.L.J.702 the Hon’ble Apex Court through para Nos.14,15 and
16 laid down as;
14.
In bail applications, generally, it has
been laid down from the earliest times that the
object of bail is to be secure the appearance of
the accused person at his trial by reasonable
amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of
liberty must be considered a punishment,
unless it can be required to ensure that an
accused person will stand his trial when called
upon. The courts owe more than verbal
respect to the principle that punishment begins
after conviction, and that every man is deemed
to be innocent until duly tried and duly found
guilty.
From the earliest times, it was
appreciated that detention in custody pending
completion of trial could be a cause of great
hardship.
From time to time, necessity
demands that some un-convicted persons
should be held in custody pending trial to
secure their attendance at the trial but in such
cases, ‘necessity’ is the operative test. In this
country, it would be quite contrary to the
concept of persona liberty enshrined in the
Constitution that any person should be
punished in respect of any matter, upon which,
he has not been convicted or that in any
circumstances, he should be deprived of his
liberty upon only the belief that he will tamper
with the witnesses if left at liberty, save in the
most extraordinary circumstances. Apart from
the question of prevention being the object of
a refusal of bail, one must not lose sight of the
fact that any imprisonment before conviction
has a substantial punitive content and it would
be improper for any Court to refuse bail as a
mark of disapproval of former conduct
whether the accused has been convicted for it
or not or to refuse bail to an unconvicted
person for the purpose of giving him a taste of
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imprisonment as a lesson.
15.
In the instant case, as we have already
noticed that the “pointing finger of accusation”
against the appellants is ‘the seriousness of the
charge’. The offences alleged are economic
offences which has resulted in loss to the State
Exchequer. Though, they contend that there is
possibility of the appellants tampering
witnesses, they have not placed any material
in support of the allegation. In our view,
seriousness of the charge is, no doubt, one of
the relevant considerations while considering
bail applications but that is not the only test or
the factor: The other factor that also requires
to be taken note of is the punishment that
could be imposed after trial and conviction,
both under the Indian Penal Code and
Prevention of Corruption Act. Otherwise, if
the former is the only test, we would not be
balancing the Constitutional Rights but rather
“recalibration of the scales of justice”. The
provisions of Cr.P. C. confer discretionary
jurisdiction on Criminal Courts to grant bail to
accused pending trial or in appeal against
convictions
since
the
jurisdiction
is
discretionary, it has to be exercised with great
care and caution by balancing valuable right of
liberty of an individual and the interest of the
society in general. In our view, the reasoning
adopted by the learned District Judge, which is
affirmed by the High Court, in our opinion, a
denial of the whole basis of our system of law
and normal rule of bail system. It transcends
respect for the requirement that a man shall be
considered innocent until he is found guilty. If
such power is recognized, then it may lead to
chaotic situation and would jeopardize the
personal liberty of an individual. This Court,
in Kalyan Chandra Sarkar Vs. Rajesh Ranjan
(2005) 2 SCC 42: (AIR 2005 SC 921),
observed that “under the criminal laws of this
country, a person accused of offences which
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are non-bailable, is liable to be detained in
custody during the pendency of trial unless he
is enlarged on bail in accordance with law.
Such detention cannot be questioned as being
violative of Article 21 of the Constitution, since
the same is same is authorized by law. But
even persons accused of non-bailable offences
are entitled to bail if the Court concerned
comes to the conclusion that the prosecution
has failed to establish a prima facie case
against him and/or if the Court is satisfied by
reasons to be recorded that in spite of the
existence of prima facie case, there is need to
release such accused on bail, where fact
situations require it to do so.
16.
This court, time and again, has stated
that bail is the rule and committal to jail an
exception. It is also observed that refusal of
bail is a restriction on the personal liberty of
the individual guaranteed under Article 21 of
the Constitution. In the case of State of
Rajasthan Vs. Balchand, (1977) 4 SCC 308:
(AIR 1977 SC 2447), this Court opined:
“2. The basic rule may perhaps be tersely put
as bail, not jail, except where there are
circumstances suggestive of fleeing from
justice or thwarting the course of justice or
creating other troubles in the shape of
repeating offences or intimidating witnesses
and the like, by the petitioner who seeks
enlargement on bail from the Court. We do
not intend to be exhaustive but only
illustrative.
3. It is true that the gravity of the offence
involved is likely to induce the petitioner to
avoid the course of justice and must weigh
with us when considering the question of jail.
So also the heinousness of the crime. Even so,
the record of the petitioner in this case is that,
while he has been on bail throughout in the
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trial court and he was released after the
judgment of the High Court, there is nothing
to suggest that he was abused the trust placed
in him by the court; his social circumstances
also are not so unfavourable in the sense of his
being a desperate character or unsocial
element who is likely to betray the confidence
that the court may place in him to turn up to
take justice at the hands of the court. He is
stated to be a young man of 27 years with a
family to maintain. The circumstances and the
social milieu do not militate against the
petitioner being granted bail at this stage. At
the same time any possibility of the absconsion
or evasion or other abuse can be taken care of
by a direction that the petitioner will report
himself before the police station at Baren Once
every fortnight.”
10.

Considering all above facts, if stringent conditions put on the
applicant/accused while granting the bail, the purpose will served.
Accordingly, the applicant/accused is entitled for bail with following
conditions;
ORDER
1. Bail Application No.05 of 2023 is allowed.
2. Applicant/accused Swapan Gopal Santra in C.R.No.I-1056 of 2023 is
released on bail on furnishing P. R. Bond and SB of Rs. 30,000/-(Rs.
Thirty Thousand Only) with one or more sureties.
3. Provisional cash security of Rs.30,000/- is allowed, which will remain
in force for two months. Meanwhile the applicant/accused has to
furnish surety as directed above.
4.

The applicant/accused shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with facts of
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case so as to dissuade him from disclosing the facts to Court or any
Police Officer and should not tamper with the evidence.
5. The applicant/accused shall not pressurize the prosecution witness
and the first informant till conclusion of the case.
6. The applicant/accused shall not flee from justice.
7. Bail before Trial Court.
8. Bail Application No. 05 of 2023 stands disposed of accordingly.
MORESHWAR
SHANTARAM
KULKARNI
Date : 17.01.2023.
Dictated on
Typed on
draft checked on
Signed on
: 17.01.2023.
: 17.01.2023.
: 18.01.2023
: 19.01.2023
Digitally signed
by MORESHWAR
SHANTARAM
KULKARNI
Date: 2023.01.20
17:30:57 +0530
(M.S.Kulkarni)
Addl.Sessions Judge,
City Civil and Sessions Court,
For Greater Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
: 20.01.2023 at 01.32 p.m.
: Mr. Ashok S. Patil
NAME OF THE JUDGE
HHJ SHRI. M. S. Kulkarni
(C.R.No.56)
Date of Pronouncement of Order
17.01.2023
Order signed by the P.O. On
19.01.2023
Order uploaded on
20.01.2023