Gujarat High Court
Mayur Karnabhai Bharai vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/5994/2025 ORDER DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 5994
of 2025
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MAYUR KARNABHAI BHARAI
Versus
STATE OF GUJARAT
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Appearance:
DENISH V MAVADHIYA(9207) for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 16/04/2025
ORAL ORDER
(1) Rule returnable forthwith. Learned APP waives service of Rule for and on behalf of the respondent-State.
(2) By way of present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-original accused has prayed to grant him anticipatory bail in the event of his arrest in connection with the FIR registered at Junagadh Taluka Police Station, Dist. Junagadh, being C.R No. 11203025250122 of 2025 for the offences punishable under the provisions of the Gujarat Prohibition Act.
(3) Learned counsel for the applicant submits that the applicant has been falsely roped in the offence. There is no direct or indirect evidence to establish the connection of the applicant with the alleged offence. He is not named in the FIR. Merely based on the statement of the co-accused, he has been arraigned as an accused. No any recovery or discovery is made from the applicant. He has also submitted that, alleged liquor was not found from conscious possession of the applicant. Learned counsel for the applicant has Page 1 of 9 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:31 IST 2025 NEUTRAL CITATION R/CR.MA/5994/2025 ORDER DATED: 16/04/2025 undefined further submitted that, though the applicant having past antecedents, he has been acquitted from 9 offences, out of 10 offences. He further submitted that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail.
(4) Per contra, learned APP has vehemently opposed the application and submitted that the present applicant is involved in the offence. The applicant having several criminal antecedents and is habitual offender. Further, though he is not named in FIR, during investigation, his name has been surfaced in the offence and the applicant was in constant touch with the co-accused in odd hours i.e. 2:00 am in the midnight. He has not joined investigation and is on run. The applicant has imported and kept the said contraband liquor for selling purpose. Therefore, if he grants anticipatory bail, possibility cannot be ruled out to continue illegal activities in future also as he is having several past antecedents. Therefore, custodial interrogation of the applicant is required, as there is a possibility of tampering of evidence and evasion of interrogation of the accused. He, therefore, submits that the application be dismissed.
(5) This Court has considered the rival submissions made by learned counsel for both the sides and considered the material placed on record.
(6) The facts of the prosecution case are that, on 14.02.2025 at about 03:15 hours, based on intelligence, police personnel of Junagadh Taluka Police Station were on patrolling, at that time, they received a secret information that the applicant accused Mayur Karanabhai Bharai (Rabari) imported contraband IMFL liquor from Page 2 of 9 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:31 IST 2025 NEUTRAL CITATION R/CR.MA/5994/2025 ORDER DATED: 16/04/2025 undefined out State for selling purpose and loading/unloading work was going on at one open barren land of village Ivanagar. Therefore, they went to one barren land of Ivanagar village where they found that one TATA Truck bearing registration No.GJ-03-W-7565 and one Bolero Pick-up tempo bearing registration NO.GJ-03-BW-0653 parked adjacent with each other containing boxes of contraband liquor and keys were also found along with the vehicles. In this regard, FIR came to be filed.
(7) 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 482 of the BNSS 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 or to tarnish his image, the Court has to exercise jurisdiction, but to seek anticipatory bail is not an extraordinary jurisdiction and absolute right of the accused.
(8) In the present case and looking to the material placed on record, it is clear that as per the secret information received more particularly by giving name of the present applicant, the police team went to the spot where they found total 237 boxes containing different brands of IMFL liquor and 9408 tins of beer, worth of Rs.,13,98,440/- which imported for selling purpose. They also found one TATA Truck bearing registration No.GJ-03-W-7565 Page 3 of 9 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:31 IST 2025 NEUTRAL CITATION R/CR.MA/5994/2025 ORDER DATED: 16/04/2025 undefined valued at Rs.10,00,000/- and one Bolero Pick up tempo bearing Registration No.GJ-03-BW-0653 valued at Rs.4,00,000/-, one file containing documents of vehicles. Although the applicant was not found at the spot, he is still connected to the offence, as he ordered the contraband for sale in huge quantity. He himself brought contraband liquor in huge quantity from outside of the State and kept at one barren land for distribution in various places. Additionally, knowing that Gujarat is a dry State, he ordered the contraband with the intent to sell it.
(9) 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.
(10) Insofar as the submission on behalf of the applicant that in the present case, muddamal is already recovered and therefore, no custodial interrogation is required is concerned, it is worthy to mention that herein, prima facie case is made out against the present applicant and there are serious allegations against the applicant that he had ordered and imported the liquor from out State and he was in active contact with other accused that too at 2:00 odd hours in the midnight, call log and location of all the accused found same and he has actively participated in the offence. Thus, in order to reach to a logical conclusion of the investigation, the Investigating Officer deserves a free hand. There is no rule that if custodial interrogation is not required then Page 4 of 9 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:31 IST 2025 NEUTRAL CITATION R/CR.MA/5994/2025 ORDER DATED: 16/04/2025 undefined anticipatory bail is required to be granted. The custodial interrogation is one of the good grounds to reject the anticipatory bail application but merely because custodial interrogation is not required, itself is not a ground to allow the anticipatory bail application. In this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Sumitha Pradeep Vs. Arun Kumar C.K. reported in 2022 SCC OnLine (SC) 1529, wherein it is observed and held as follows:
"In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail."
(11) In so far the statement of co-accused is concerned,it provides clues to the investigating agency as to how to investigate the case and thereafter the investigating officer has to collect evidence 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 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..."Page 5 of 9 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:31 IST 2025
NEUTRAL CITATION R/CR.MA/5994/2025 ORDER DATED: 16/04/2025 undefined (12) 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."
(13) 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....."
(14) It is appropriate to refer to the judgment of the Apex Court rendered in case of Pratibha Manchand Vs. State of Haryana, reported in AIR 2023 SC 3307, wherein the 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."
In view of the above decision and in view of the facts and circumstances of this case, custodial interrogation of not only the applicant, but 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.
Page 6 of 9 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:31 IST 2025 NEUTRAL CITATION R/CR.MA/5994/2025 ORDER DATED: 16/04/2025 undefined (15) Furthermore, the contraband liquor was loaded in TATA Truck
from which it was distributed through Bolero Pick up tempo, which clearly indicates knowledge and intent regarding the contraband. During the investigation, it was discovered that the applicant is very much involved in the offence and he has 10 past antecedents of similar nature in Junagadh District.
(16) So far the second limb of argument with respect to applicant is not found in conscious possession of the liquor is concerned, reference is required to be made upon the decision of the Apex Court in the case of Union of India Vs. Md. Nawaz Khan, reported in (2021) 10 SCC 100, wherein, the Apex Court has held that "in absence of possession of the contraband on the person of the accused does not absolve it of the level of scrutiny required under the Act. The Hon'ble Apex Court further has been pleased to hold that, the term possession could mean physical possession with animus, custody over the prohibited substances with animus, exercise of dominion and control as a result of concealment or personal knowledge as to the existence of the contraband and the intention based on such knowledge. Further, from whom the contraband liquor has received and to whom he has to deliver is also required to be investigated and for that also, custodial interrogation is required.
(17) In view of the law laid down in the case of Vijay Madanlal Chaoudhary Vs. Union of India, 2022 SCC Online (SC) 929, merely offence is punishable maximum upto 7 years is not a criteria to grant anticipatory bail when custodial interrogation of the accused is required. Therefore, considering the conduct of the applicant more particularly his 10 past antecedents in similar Page 7 of 9 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:31 IST 2025 NEUTRAL CITATION R/CR.MA/5994/2025 ORDER DATED: 16/04/2025 undefined nature of offence, no case is made out for anticipatory bail.
(18) Further, Gujarat is a dry State and pursuant to Article 47 of the Constitution of India, the directive principles of the State policy, it is the duty of the State to raise the standard of living and improve the public health and for the said purpose, prohibition of liquor being made compulsory in the Gujarat State. The State is committed to the ideas and principles of Father of Nation Shri Mahatma Gandhji and State also firmly intends to eradicate the menace of consuming liquor or intoxicating drugs to overhaul the law relating to intoxicating drugs and total prohibition in the State and for that amendments also being made in the Gujarat Prohibition Act. Considering the aforesaid fact, prima facie involvement being made out, no case is made out to grant anticipatory bail to the applicant.
(19) Furthermore, if the applicant is innocent, he is expected to join and cooperate with the investigation. However, he has failed to do so and is currently absconding. The contention raised by the learned counsel for the applicant is that, out of 10 antecedents, he has been acquitted in 9 offences. Nevertheless, considering the applicant's conduct, it indicates a clear mens rea on his part. Upon perusal of the investigation papers, it appears that his involvement is not solely based on the statement of a co-accused; rather, the investigation has revealed his active participation. Additionally, the statement of his mother has been recorded, wherein she stated that the applicant has been using her SIM card and has left the home two months ago and he has not returned till the date . When the involvement of the accused is prima facie revealed and if allegation is not levelled that to defame him or to tarnish his image, the Court has to exercise jurisdiction, but to seek anticipatory bail is Page 8 of 9 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:31 IST 2025 NEUTRAL CITATION R/CR.MA/5994/2025 ORDER DATED: 16/04/2025 undefined not an extraordinary jurisdiction and absolute right of the accused. In this regard, reference is required to be made on the decision of the Apex Court in the case of State of Madhya Pradesh Vs. Ram Kishna Balothia, reported in 1995 (3) SCC 221.
(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 considering larger societal interest rather than applicant's personal liberty. Accordingly, present application does not deserve any consideration and is hereby dismissed. Rule is discharged.
(21) It is made clear that this Court has not delve into the merits of the matter and the views expressed in the order are prima facie only.
(HASMUKH D. SUTHAR,J) SUCHIT Page 9 of 9 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:31 IST 2025