Ankit Rathaur vs State Of U.P. Through Prin. Secy. ...
2023 Latest Caselaw 408 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 124 of 2022
 

 
Applicant :- Ankit Rathaur
 
Opposite Party :- State Of U.P. Through Prin. Secy. Home And Anr.
 
Counsel for Applicant :- Mohd. Amir Khan,Pawan Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karunesh Singh Pawar,J.

The applicant Ankit Rathaur, has moved the present application under Section 438 of Cr.P.C. praying for grant of anticipatory bail in F.I.R. No. 385 of 2021, under Sections 255, 272, 273, 420, 467, 468, 471 I.P.C. read with Sections 60(1), 63, 72, 67 of Excise Act and Sections 51, 63 of Copyright Act, Police Station Mahmoodabad, District Sitapur.

Heard learned counsel for the applicant and learned A.G.A. for the State.

Vide order dated 1.2.2022, the applicant was granted interim protection by a coordinate Bench of this Court. Gist of the issue involved in the present matter is given in the said order, which is extracted below :

"The Court convened through video conferencing.

Heard Shri Pawan Kumar Pandey, the learned counsel for the applicant, Shri Rao Narendra Singh, the learned A.G.A.-I for the State and perused the record.

The applicant-Ankit Rathaur, has moved the present application under Section 438 of Cr.P.C. praying for grant of anticipatory bail in F.I.R. No. 385 of 2021, under Sections 255, 272, 273, 420, 467, 468, 471 I.P.C. read with Sections 60(1), 63, 72, 67 of Excise Act and Sections 51, 63 of Copyright Act, Police Station Mahmoodabad, District Sitapur.

As per the allegations made in the F.I.R., it is revealed that on an information about the manufacturing of country liquor illegally, a raid was conducted and a person, namely, Vimlesh Yadav was apprehended, who accepted his guilt and also accepted that on 16.10.2021, in vehicle No.UP 32 EE 5944, the liquor which was recovered, belongs to him. He further stated that these things were kept at his residence and when the police party reached, the accused persons including the applicant were apprehended and from them ATM cards were recovered. On further inspection in the house of the said Vimlesh Kumar Yadav, certain cans containing alcohol and bottles etc. were recovered. Based upon which, on an smell, it was presumed that the same is being kept for manufacturing the liquor. It is also recorded that the Excise Inspector, on the spot, on smelling and on seeing the liquor was of the view that the same is extremely dangerous for human consumption and was also caused death.

In the light of the abovesaid, the learned counsel for the applicant argues that there is absolutely no material against the applicant as the raid was not conducted in the house of the applicant. There is nothing on record to demonstrate that any of the article allegedly seized belongs to the applicant. He further argues that there is no report or any material except the smelling done by the Excise Inspector to demonstrates that the product seized were in anyway noxious so as to attract the rigor of Section 272 of IPC. It is further on record that the recovery was not in the presence of any independent witness.

Learned counsel for the applicant further submits that neither any recovery was made from the possession of the applicant, nor he is involved in manufacturing or selling of the illicit liquor. The entire prosectuion story, as alleged, is false and fabricated and has been cooked up with intention to rope in the applicant in the false case.

Learned counsel for the applicant further submits that the co-accused, namely, Vimlesh Yadav, Shailendra Rathour, Avadhesh Verma and Vikas Jaiswal @ Golu, who were arrested on the spot and from whom the liquor was recovered, have already been granted bail by this Court vide order dated 03.12.2021, 30.11.2021, 02.12.2021 and 24.11.2021 passed in Bail Nos. 14067, 13833, 13948 and 13481, all of the year 2021, respectively. The case of the applicant is not on the worse footing than that of the co-accused, who have been granted bail by this Court, in view thereof, the applicant is also entitled to get the benefit of anticipatory bail.

It is further submitted that applicant is not required for any custodial investigation. There is no possibility of the accused-applicant of fleeing away from the judicial process or tampering with the witnesses. The applicant has no criminal history. The applicant is a permanent resident of the District Sitapur and there is no chance of his absconding. The applicant undertakes to furnish adequate surety for his release, if he is granted anticipatory bail. He also undertakes to cooperate with the investigation and shall not misuse the liberty of anticipatory bail granted to him.

Learned A.G.A.-I submits that the name of the applicant was came into picture on the confessional statement of the four arrested persons, namely, Vimlesh Yadav, Shilendra Rathour, Awdhesh Verma and Vikas Jaiswal, and the applicant is also involved in manufacturing the illicit liquor. He further argues that that huge recoveries were made and considering the fact that a lot of people died because of country liquor, the release of the applicant on bail would not justify. He further argues that averments of the learned counsel for the applicant that there is no forensic report, has no relevance as the applicant has neither the licensee nor has any authority to manufacture.

Considering the submissions advanced by the learned counsel for the parties and after going through the contents of F.I.R., and other documents, and the submissions regarding legality and illegality of the allegations made in the F.I.R. which have also been placed forth before the Court, the circumstances which according to the counsel led to the false implication of the accused have also been touched upon at length was considered and the assurance given on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him, this Court is of the view that the applicant is entitled for interim protection.

Till the next date of listing, it is provided that in the event of arrest of the accused-applicant, namely, Ankit Rathaur, involved in F.I.R. No. 385 of 2021, under Sections 255, 272, 273, 420, 467, 468, 471 I.P.C. read with Sections 60(1), 63, 72, 67 of Excise Act and Sections 51, 63 of Copyright Act, Police Station Mahmoodabad, District Sitapur, he shall be released forthwith by the Station House Officer of the police station concerned, on his furnishing a personal bond of Rs.50,000/- with the following conditions:-

(i) That the accused-applicant shall make himself available for interrogation by the police authorities as and when required and will cooperate with the investigation;

(ii) That the accused-applicant shall not, directly or indirectly make any inducement, threat or promise to any person, acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the court or to any police officer; and;

(iii) That the accused-applicant shall not leave the country without the prior permission of the Court.

However, it is directed that the accused-applicant will join and participate in each and every aspect of investigation and will lend due assistance to the Investigating Agency, even with regard to the discovery of facts, if and when required so by the Investigating Agency.

List/ put up on 24.03.2022 for final disposal.

In the meanwhile, learned A.G.A. may file counter affidavit.

The applicant, if so advised, may file rejoinder affidavit within one week thereafter."

Counter affidavit has been filed by the State.

It is submitted on behalf of the applicant that the applicant has not misused the interim protection granted by this court. He has no criminal antecedent. The other co-accused persons who were arrested on the spot have been enlarged on bail, a reference whereof has been given in the order extracted above.It is submitted that the applicant has cooperated in the investigation. The applicant has not been arrested on the spot, nor any recovery has been made from the possession of the applicant. The applicant is the resident of district Sitapur and there is no chance of his fleeing away or absconding.

Learned A.G.A. submits that the name of the applicant has surfaced in the confessional statement of the arrested accused persons.

Without expressing any opinion on the merits of the case and considering the nature of accusation and having no criminal antecedents, coupled with the undertaking given by the applicant that he will cooperate in the investigation/trial, the applicant is entitled to be released on anticipatory bail in this case.

In view of the above as also keeping in view of the judgment in Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC OnLine 98, the interim order dated 1.2..2022 is affirmed. However, the accused applicant is directed to surrender before trial court, if charge sheet has been filed and he is summoned to face trial for offence in question. The accused applicant shall be released on bail by the trial court on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court with the following conditions.

(i) The applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or tamper with the evidence;

(ii) The applicant shall not leave India without the previous permission of the court;

(iii)The applicant shall not pressurize/ intimidate the prosecution witness;

(iv)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

In view of the aforesaid, the application is disposed of.

Order Date :- 5.1.2023

kkb/