NEUTRAL CITATION
R/CR.MA/16894/2023 ORDER DATED: 16/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 16894
of 2023
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RAJBIRSINH NAHESINH LOHCHAB
Versus
STATE OF GUJARAT
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Appearance:
JIGNESHKUMAR P PANDAV(8297) for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 16/10/2023
ORAL ORDER
1. Rule returnable forthwith. Learned APP waives service of Rule for and on behalf of the respondent-State.
2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-original accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR registered at Amirgadh Police Station, Dist. Banaskantha, being C.R No.11195003230391 of 2023 for the offences punishable under Sections 65(a), 65(e), 98(2), 81, 83 and 116-B of the Gujarat Prohibition Act. Subsequently Sections 465, 467, 468 and 471 of the Indian Penal Code came to be added.
3. Learned counsel for the applicant submits that the applicant has been falsely implicated in the offence. Learned advocate for the applicant has submitted that nothing is found Page 1 of 12 Downloaded on : Wed Oct 18 20:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/16894/2023 ORDER DATED: 16/10/2023 undefined from the conscious possession of the applicant and applicant is falsely implicated on the basis of the statement of co-accused. It is submitted that the present applicant is only breadwinner of his family. It is submitted that applicant is in the transport business since last 20 years. It is submitted that whatever muddamal found from the possession of the driver, as per his statement, he does not know about the same. Under the instructions, it is submitted that the present applicant is ready and willing to join the investigation. In view of the above, the applicant may be granted anticipatory bail.
4. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. It is submitted that the vehicle concerned with crime is registered in the name of the wife of the applicant, but the present applicant has managed the entire transport business. Muddamal in a huge quantity worth Rs.53,91,120/- was found from the conscious possession of the accused no.1. Accused no.1 is also named in the FIR being owner of the container. At the instructions of the applicant, the said prohibited muddamal came to be loaded and transported by the accused no.1. The statement of co-accused is also very clear, which reveals from the CDR, he was in constant touch with the accused persons, as it is well known fact that Gujarat being a dry state, prohibition does exist in the State subsequently to eliminate evil and considering the adverse effect on public health, the provision of law being made stringent by Page 2 of 12 Downloaded on : Wed Oct 18 20:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/16894/2023 ORDER DATED: 16/10/2023 undefined the State Government. It is submitted that the applicant is involved in the offence and he is out of reach and remained as absconder and then warrant under Section 70 of Cr.P.C. has been issued against him. It is submitted that investigation is at preliminary stage. Due to this, custodial interrogation is required. In view of above, submitted that, investigation is at preliminary stage and she has requested to dismiss the present application.
5. Having heard the learned advocates for the respective parties, this Court has considered the rival submissions made by learned counsel for both the sides and considered the material placed on record. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused. Though at the stage of granting bail execution and appreciation of evidence is not permissible. Having gone through the complaint, prima facie, it appears that the present applicant is involved in the offence. Considering the fact that present applicant is absconder and out of reach. Hence, custodial interrogation is required.
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6. The criteria to grant anticipatory bail and regular bail has been laid down by the Apex Court in various decisions. While criminal administration of justice disturbed, arrest is a part of investigation. After the arrest of the accused when substantial part of the investigation including remand gets over, then the Court has to exercise jurisdiction considering the evidence collected during investigation. It is needless to say that Section 438 of the Code is pre-arrest bail as there is a part of investigation and importance of the arrest is time and again discussed by the Hon'ble Apex Court. When the involvement of the accused is prima facie revealed and if allegation is not levelled that to defame him/them or to tarnish his/their image, the Court has to exercise jurisdiction, but to seek anticipatory bail is not an extraordinary jurisdiction and absolute right of the accused.
6.1. Considering the fact that present applicant is out of reach. It is submitted that the defendants in this case in agreement with each other, in containers kept in Trailer of foreign liquor of Indian make without mercury per carton of beer no. 1210 total number of bottles/beer tins amounting to Rs.16,560/- Rs.53,91,120/- conspired to smuggle into the State of Gujarat during vehicle checking. He has violated the law and it appears that there is no frivolity.
6.2. Going through the said complaint, prima facie, it appears that the prohibited muddamal IMFL worth Rs.53,91,120/- was found from the conscious possession of accused no.1. The said Page 4 of 12 Downloaded on : Wed Oct 18 20:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/16894/2023 ORDER DATED: 16/10/2023 undefined tailor is owned by the wife of the present applicant and through power of attorney the applicant is doing the business. Going through the investigation papers, prima facie, it appears that in the guise of the transportation of the mutilated vax, the said muddamal was found in huge quantity being transported in connivance and in collusion of the accused persons as investigation is at preliminary stage. Going through the investigation papers, it further appears that driver was instructed by the accused no.1 to load the muddamal/ liquor and he has received whatsapp call and as per the instructions, he has to deliver the said muddamal.
6.3. Considering the aforesaid fact during the investigation, it reveals that the bilty of the mutilated Rags and the goods ,which alleged to be transported in the container was false and fabricated and no such firm was also found and the said bilty was also prepared at the instance of the present accused. Considering the aforesaid fact, prima facie, involvement of the present accused is revealed. This is not a case, wherein accused is falsely enroped in the offence with a view to tarnish his image. Hence, custodial interrogation is required for more elicitation of fact and involvement of other accused and to reach up to core of the offence.
7. Now coming back to the facts of the present case and looking to the material placed on record, it clearly transpires that the applicant remained absconder and out of reach. So no Page 5 of 12 Downloaded on : Wed Oct 18 20:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/16894/2023 ORDER DATED: 16/10/2023 undefined anticipatory bail be granted to such absconder accused. The applicant is also involved in the offence and in the instant case, role of the applicant as attributed as he has received and supplied of the liquor in huge quantity and it was very much within the knowledge of the applicant that Gujarat being a dry state, prohibition is there, however, they were involved in the illegal activity.
8. Considering the fact that the applicant is found in the illegal activity and the accused named in the FIR were found with the huge quantity of the liquor and made an arrangement to facilitate the accused persons and served the liquor to customers and operated permanent liquor stand. So far as the present applicant is concerned, he has taken the stand that his implicated on the basis of the statement of the co-accused. It is needless to say that accused is having past criminal antecedents and the statement of the co-accused is relevant during the course of investigation.
9. In so far the statement of co-accused is concerned, it pro- vides clues to the investigating agency as to how to investigate the case and thereafter the investigating officer has to collect ev- idence against the person who has been named as the accused. In the light of the above provisions, there is no bar on considering the statement of co-accused for investigation purposes. At this stage, it is relevant to note that this Court has observed in the Page 6 of 12 Downloaded on : Wed Oct 18 20:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/16894/2023 ORDER DATED: 16/10/2023 undefined case of Mohmed Salim abdul Rasid Shaikh v. State of Gujarat, reported in 2001(2) GLR 1580, in para 12, as under:
"...It is pertinent to note that the prosecution case rests mainly on circumstantial evidence and police has received a clue against the present applicant from the statement of co- accused, already arrested. Irrespective of the fact that statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation..."
10. Further, in the case of Mohammed Fasrin v. State Rep. By the Intelligence Officer, rendered in Criminal Misc. Application No.296 of 2014, the Hon'ble Supreme Court observed as under:
".......The confessions of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co-accused....."
11. In this background facts, this Court prima facie is of considered view that, there is a reasonable ground to believe that the applicant has committed the alleged offence. Considering the facts of the present case, it cannot be said that the applicant herein has been falsely implicated in the alleged offence. If the anticipatory bail as sought for is granted, then it will affect the investigation of the case. Therefore, custodial interrogation of the applicant is required.
12. In the case of Indresh Kumar vs. State of Uttar Pradesh Page 7 of 12 Downloaded on : Wed Oct 18 20:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/16894/2023 ORDER DATED: 16/10/2023 undefined reported in 2022 Live Law 610, it has been held by the Hon'ble Supreme Court that statement under Section 161 of the Cr.P.C. recorded before the police is also relevant for the purpose of investigation and to consider the bail application and role of the accused as it provides clue.
13. In the case of Siddharam Satlingappa Mhetre vs State Of Maharashtra, reported in (2011) 1 SCC 694, the Hon'ble Court held that life and personal liberty are the most prized possessions of an individual but not at the cost of larger interest of society and public. This is not a case, wherein accused is falsely enroped in the offence with a view to tarnish his image. Considering the fact that the custodial interrogation is required. Further, the Hon'ble Apex Court in the case of Jai Prakash Singh Vs State of Bihar & Anr. reported in 2012 4 SCC 379, has been pleased to hold as under:-
"Parameters for grant of anticipatory bail in a serious offences are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."
14. The coordinate Bench of this Court in a case of Jigneshkumar Maheshbhai Patel vs State of Gujarat, (Criminal Misc. Application No.3122 of 2018) has observed as under :
"15. This Court, in one of its judgments, in the case of State of Gujarat vs. Desai Jigisbhai @ Rajubhai Nagjibhai, Criminal Page 8 of 12 Downloaded on : Wed Oct 18 20:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/16894/2023 ORDER DATED: 16/10/2023 undefined Misc. Application No.23576 of 2015, decided on 4th February, 2016, observed as under;
"25. When a Court is given a discretion, the statute confers upon it the power to act according to what may appear to be best and appropriate under the circumstances of the particular case. The discretion is not willful or arbitrary, but is regulated by well-known and well established principles. In many circumstances, the Judge has a discretion as to whether, and in what manner, to exercise his powers. Commonly encountered instances of judicial discretion are the discretion as to grant of bail in a non-bailable offence. However, no discretion is absolute and there may be a successful appeal to the Court of Appeal in relation to the exercise of a judicial discretion if the appellant can show that the judge exercised his discretion under a mistake of law, or under a misapprehension as to the facts, or that he took into account irrelevant matters or gave insufficient weight, or too much weight, to certain factors or that he failed to exercise his discretion at all.
26.In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows :
"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under (SCC p. 124, para 16) :
"If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the Page 9 of 12 Downloaded on : Wed Oct 18 20:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/16894/2023 ORDER DATED: 16/10/2023 undefined State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."
16. The presumption of innocence, by itself, cannot be the sole consideration for grant of bail. The presumption of innocence is one of the considerations, which the court should keep in mind while considering the plea for bail. The salutary rule is to balance the cause of the criminal defendant and the cause of public justice. Over solicitous homage to the criminal defendant's liberty can, sometimes, defeat the cause of public justice. Over a period of time, a feeling seems to exist in some quarters that the object of criminal law is to protect the rights of the accused and that the criminal justicing system is envisioned as a sentinel of the rights of the accused. It is not so. The law is the sentinel of rights of the society and of the individual. The rights of the criminal defendant will be as zealously guarded, as the cause of public justice. Pre-trial detention in itself is not an evil, nor opposed to the basic presumption of innocence. If liberty is to be denied to an accused to ensure maintenance of law and order and public health, then the courts should not hesitate in denying such liberty. Ensuring security and order including public health is a permissible non-punitive objective, which can be achieved by pre-trial detention. Where overwhelming considerations in the nature aforesaid require denial of bail, it has to be denied"
15. As and when the applicant is released, he misused his liberty and involved in such type of illegal activity and considering the fact that applicant is out of reach and remained absconder.
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16. It would be apposite to refer the judgment of the Hon'ble Apex Court rendered in case of Pratibha Manchanda vs. State of Haryana reported in AIR 2023 SC 3307, wherein the Hon'ble Apex Court has observed thus:-
"19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."
17. Further, the investigation papers clearly reveal that the present applicant has remained absconding despite issuance of warrant under Section 70 of the Cr.PC and therefore, in view of the law laid down by the Hon'ble Apex Court in case of State of Haryana vs. Dharamraj reported in 2023 INSC 784; Lavesh vs. (NCT of Delhi) reported in (2012) 8 SCC 730; Abhishek vs. State of Maharastra reported in 2022 (8) SCC 282 and Prem Shankar Prasad vs. State of Bihar reported in 2021 SCC OnLine SC 955, I am of the considered view that this is not a fit case to exercise the jurisdiction in favour of the applicant.
18. In view of the above decision and in view of the facts and circumstances of this case, custodial interrogation of not only the Page 11 of 12 Downloaded on : Wed Oct 18 20:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/16894/2023 ORDER DATED: 16/10/2023 undefined applicant, but also all other suspect/s is therefore imperative to unearth the truth. Hence, this is a not a fit case to exercise the jurisdiction in favour of the applicant.
19. Considering the question of public health and adverse effect and impact in the society, in the larger interest of justice, the Court has to struck down the balance between the personal liberty and larger interest of the society. In view of above, if the present applicant is protected with this order, this Court is of the considered view that if the present accused is equipped with protective order, it would obviously affect the case of the prosecution and adversely the qualitative investigation. This is not a fit case, wherein accused is falsely enraged in the offence and it appears that there is no frivolity, with a view to tarnish his image. Considering the fact that the custodial interrogation is required.
20. For the foregoing reasons and considering the law laid down in the above cited decisions of this Court as well as the Hon'ble Apex Court, this Court is of view that it is not a fit case to exercise the discretion under Section 438 of the Code in favour of the applicant. Accordingly, present application does not deserve any consideration and is hereby dismissed. Rule is discharged.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 12 of 12 Downloaded on : Wed Oct 18 20:40:24 IST 2023