Buttan vs State Of U.P.
2021 Latest Caselaw 7251 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 29
 
Case :- BAIL No. - 4782 of 2021
 
Applicant :- Buttan
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Satendra Nath Rai
 
Counsel for Opposite Party :- G.A.
 
(In Chamber)
 

 
Hon'ble Vikas Kunvar Srivastav,J.

Called out.

Shri Satendra Nath Rai, learned counsel for bail applicant and Ms. Anupriya Jaiswal, learned brief holder for the State are connected through video conferencing.

The present bail application is filed on behalf of the accused-applicant-Buttan, involved in Case Crime No.107 of 2021, under Sections 60 & 60(2) Excise Act and under Section 272 IPC registered at Police Station Kotwali Dehat, District Gonda.

The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Sessions Judge, Gonda vide order dated 08.04.2021.

Counter affidavit in the matter has already been filed and learned counsel for bail applicant does not want to file any rejoinder affidavit thereto. Since the learned counsel for the bail-applicant presses to argue the matter instantly, therefore, learned A.G.A. is also ready to protest the bail-plea.

Learned counsel for the bail-applicant submitted that the prosecution case is that the the FIR was lodged on 13.03.2021 by the Sub-Inspector of Police Station Kotwali Dehat, District Gonda who was on patrolling duty when a reliable source of police informed him about preparation and production of illegal liquor by potion at a place adjoining. The police source indicated the place where the illegal liquor was being prepared and produced, accordingly the police team raided on the spot and found the present accused-applicant preparing illegal liquor in front of his house. All the materials for preparation of liquor was with him in his possession along with an intoxicating substances identified as Urea and Ammonium Chloride (Naushadar). The FIR itself disclosed that it is the confessional statement of the person apprehended named Buttan son of Udai Rai that he was preparing illegal liquor and wanted to increase the strength of the liquor by adding therein intoxicating substances like Urea.

The argument of learned counsel for bail applicant is that except this confessional statement there is nothing to produce by the prosecution as evidence so as to prima facie establish the prosecution case of preparing illegal liquor with intoxicating substances like Urea. No independent witness could be produced by the police officer who raided on the spot and apprehended the accused. Even of recovery there is no witness though it is mentioned in the FIR that several persons near and around the spot of incident were gathered, they could not dare to record their statements.

Learned counsel for bail applicant further argued that no criminal incident is reported against the person accused-applicant except the case crime no. 80 of 2003 registered under Section 323, 325, 504 & 506 IPC PS Kotwali Dehat, District Gonda, the office in which is not in the nature of offence under Section 272 IPC and under Sections 60 & 60(2) Excise Act.

Learned counsel for applicant further submits that the accused applicant is poor and downtrodden person and not in a capacity to avail the processes of court and is of permanent residence of the area as such even if he is released on bail it would be helpful in facing the trial by him as he is willing to face the trial.

Ms. Anupriya Jaiswal learned brief holder for the State submits on the basis of counter affidavit filed on behalf of the State that the present accused applicant was found in possession of articles and materials preparing the illegal liquor and intoxicating substances like urea to considerable amount of 500 gram. Therefore, the accused applicant does not deserves to be granted bail in the matter as the offences effectuated by the preparing the illegal and poisonous liquor sold to and taken by their consumers they are likely to suffer death. She further submitted that the offence is punishable with life imprisonment.

Learned counsel for applicant in rebuttal submitted that Section 272 of the IPC is with regard to producing obnoxious food articles or drink items. In the present case the adulterated and poisonous drinking material like illegal liquor is not found prepared at the spot and likewise neither the charge of making and exporting such material are reported against him. Apprehending by the police party on the information of reliable source of police as well as preparation of illegal liquor or possession of intoxicating material of these are on a level of crude allegations against the present applicant which needs a trial on the basis of evidence.

Prima facie the prosecution has no evidence or witness in this regard, therefore present accused applicant if he wants to face the trial he deserves to be granted bail. Learned brief holder for State, however, has not denied on the basis of counter affidavit that there is any criminal antecedents of offence of like nature.

Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge her on bail.

Considering the facts and circumstances of the case, perusing the record, considering the nature of allegations, arguments advanced by learned counsel for the parties and looking into the complicity of the applicant-accused in the offence, the gravity of offence, severity of punishment without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.

Let applicant (Buttan), involved in Case Crime No.107 of 2021, under Sections 60 & 60(2) Excise Act and under Section 272 IPC registered at Police Station Kotwali Dehat, District Gonda be released on bail on his furnishing a personal bond of Rs.50,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

Order Date :- 8.7.2021

J.K. Dinkar