Gujarat High Court
Yash Kalpeshbhai @ Munnabhai Thakar @ ... vs State Of Gujarat on 16 April, 2025
NEUTRAL CITATION
R/CR.MA/7420/2025 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. 7420
of 2025
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YASH KALPESHBHAI @ MUNNABHAI THAKAR @ THAKER
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK BAROT FOR MR KEVAL G BRAHMBHATT (BAROT)(9900) for
the Applicant(s) No. 1
MR H K 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 DCB Police Station, Ahmedabad, being C.R No.11191011250049 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. 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, the applicant is young boy and is pursuing government examination. He has no past antecedent. If he is arrested, his career will be Page 1 of 10 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:34 IST 2025 NEUTRAL CITATION R/CR.MA/7420/2025 ORDER DATED: 16/04/2025 undefined ruined and will have to face consequences. There is no flight risk and is willing to join the investigation. Mr. Barot has relied upon the decision of this Court rendered in Solanki Ravibhai Dipubhai & Ors. Vs. State of Gujarat & Anr. reported in 1992 (1) GLR 631 and stated that when the case is made out for bail, the Hon'ble Court has to exercise discretion in favour of the accused. 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. Merely the applicant has no past criminal antecedent is not a ground to allow the anticipatory bail. The applicant and accused No.1 both went to take delivery of contraband liquor in the same car. The applicant has imported the said contraband liquor from Haryana for selling purpose and went to Guru Logistics Transport for taking delivery. The applicant and accused No.1 have decided to share the profits derived from selling liquor. While on the basis of intelligence, raid was conducted, accused No.1 was caught taking delivery of 180 bottles of IMFL worth of Rs.2,94,736/-, whereas, the applicant was fled away from the spot. Merely the applicant is doing preparation for government exams and job aspirant, is not a ground to allow the anticipatory bail application and therefore, if he grants anticipatory bail, possibility cannot be ruled out to continue such illegal activities in future also. Therefore, custodial interrogation of the applicant is required as the manner in which he had imported liquor by concealing in the boxes of battery and preparing forged builty and also number also.
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Further, there is a possibility of tampering of evidence and evasion of interrogation of the accused, hence, he prays not to entertain present anticipatory bail application.
(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 17.02.2025 at about 19:00 hours, based on intelligence, police personnel of Crime Branch were on patrolling, at that time, they received a secret information and therefore, they kept watch at Guru Logistics Transport, situated at Prem Darwaja to Idgah Road, Ahmedabad. As per the information, one white colour Swift car bearing Registration No. GJ-03-AR-4939 came at Guru Logistics and two persons came down from the said car and went towards the boxes lying in front of Guru Logistics Transport. Therefore, while approaching police towards them, applicant was fled from the spot and accused No.1 caught red handed and upon searching those boxes, total 180 bottles of IMFL were found which was imported by the accused from Haryana for selling purpose. 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.
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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, it clearly reveals that the applicant, along with accused No. 1, arrived in the Swift car to take delivery of the contraband liquor, which had been ordered from Haryana by the present applicant. Upon seeing the police, the applicant fled the scene, while accused No. 1 was caught red-handed at the spot. Upon further inquiry, it was revealed that the applicant and accused No. 1 had ordered the contraband liquor from Haryana for the purpose of selling it and to share the profit. The parcels contained batteries, wherein, liquor bottles were hide and forged builty was prepared. Although the applicant was not found in conscious possession of the liquor, he is still connected to the offence, as he ordered the contraband for sale. If he was not involved with the contraband liquor, there was no reason for him to flee from the spot upon seeing the police. He was fully aware that from the boxes of battery, contraband liquor brought from Haryana through Guru Logistics Transport.
(9) Furthermore, the contraband liquor was concealed in TTEX power battery boxes, which clearly indicates knowledge and intent regarding the contraband. During the investigation, it was discovered that no firm by the name of 'Vivek Electric Store' exists, despite an invoice being prepared in its favor. The authenticity of the e-way bill also needs to be investigated, as a fictitious firm name has been used.
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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.
(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..."
(12) 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 Haryana and he was in active contact with other accused and he has actively participated in the offence. Thus, in order to reach to a Page 5 of 10 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:34 IST 2025 NEUTRAL CITATION R/CR.MA/7420/2025 ORDER DATED: 16/04/2025 undefined logical conclusion of the investigation, the Investigating Officer deserves a free hand. There is no rule that if custodial interrogation is not required then 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."
(13) 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 Page 6 of 10 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:34 IST 2025 NEUTRAL CITATION R/CR.MA/7420/2025 ORDER DATED: 16/04/2025 undefined 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.
(14) 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."
(15) 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....."
(16) Another limb of argument of learned counsel for the applicant 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. The Hon'ble Apex Court further has been Page 7 of 10 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:34 IST 2025 NEUTRAL CITATION R/CR.MA/7420/2025 ORDER DATED: 16/04/2025 undefined 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. The applicant cannot claim anticipatory bail as of right and for that, reference is required to be made in a case of Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, reported in AIR 2021 SC 221, wherein, the Hon'ble Apex Court held that when deciding a bail application and extending the benefit of parity, the Court has to examine the exact role attributed to the accused.
(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 Page 8 of 10 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:34 IST 2025 NEUTRAL CITATION R/CR.MA/7420/2025 ORDER DATED: 16/04/2025 undefined involvement being made out, no case is made out to grant anticipatory bail to the applicant.
(19) Keeping in mind the aforesaid fact as well as the judgments relied upon by learned counsel for the applicant in the decision of this Court reported in 1992 (1) GLR 631 would not helpful to the case of the applicant. However, it is to be noted that while deciding the bail application, the Court should not blindly rely upon the precedent as held by the Apex Court in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav, reported in (2004 (7) SCC 528, as each case should be decided on its own merits and the Court has to consider the facts of each case and in the instant case, prima facie involvement of the accused is found.
(20) Further, if the applicant is innocent, he ought to join and to cooperate with the police rather to flee away from the spot. But he has not joined the investigation and he is on run. Contention raised by learned counsel for the applicant is that, the applicant is going to appear in government exams and hall ticket has annexed with the bail application. But considering the conduct of the applicant, it clearly reveals the mens rea on his part. Even it is routine patrolling work for the police to stop the vehicles, check on public roads for inspection, search the vehicle, and ask for the relevant documents. Innocent individuals typically do not exhibit any unnatural behavior in usual course but here in the present case. The conduct of the applicant must be taken into consideration. It is needless to say that the conduct may vary from person to person. 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 Page 9 of 10 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:29:34 IST 2025 NEUTRAL CITATION R/CR.MA/7420/2025 ORDER DATED: 16/04/2025 undefined 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.
(21) 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.
(22) 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.
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