Kamlesh @ Sunil @ Chunni Rajubhai ... vs State Of Gujarat
2021 Latest Caselaw 6868 Guj

     R/CR.MA/7063/2021                         ORDER DATED: 24/06/2021



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 7063 of 2021
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        KAMLESH @ SUNIL @ CHUNNI RAJUBHAI MARWADI
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR NIRAD D BUCH(4000) for the Applicant(s) No. 1
MRS. BHAVINI N. BUCH(5403) for the Applicant(s) No. 1
MS.MOXA THAKKER, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                Date : 24/06/2021
                  ORAL ORDER

1) Heard learned advocates appearing for the respective parties through video conferencing.

2) The present application has been filed under Section 438 of the Code of Criminal Procedure, 1973 seeking bail in connection with F.I.R. being C.R.No.11196012210164 of 2021 registered with Fatehganj Police Station, Vadodara City, District : Vadodara for the offences punishable under Sections 65E, 81 and 116B of the Gujarat Prohibition Act.

3) It is the case of the prosecution, in brief, that the present FIR is lodged on 18.03.2021 at 16:05 hrs for the offence allegedly committed at 14:40 hrs on the same day. The applicant has been named as Accused No.2 and his mother has been named as Accused No.1.

4) It is alleged that a lady named Shantiben Amarbhai Marwadi opened the door of the house and on inquiry about the owner of the house, she disclosed that the applicant and his mother are the owners of the house, and that she happens

R/CR.MA/7063/2021 ORDER DATED: 24/06/2021

to be the maternal aunt of the applicant.

5) Learned advocate Mr.Nirad Buch has submitted that though the aforesaid illegal liquor was found from his house, however, the present applicant was not present at the house. He has submitted that looking to the quantity of the liquor, the applicant may be released on bail. It is submitted that accused No. 1 is the mother of the present applicant and is the owner of the house, who has been released on regular bail. Learned advocate Mr. Nirad Buch has submitted that the applicant is just staying in the house of the accused No.1 and the applicant cannot be absolved from the offence, mainly because on the quantity is only 72 tins of liquor.

6) Per contra, learned APP Ms. Moxa Thakker, on the instructions of the Investigating Officer, has submitted that the applicant has, in fact, admitted before the Investigating Officer that he has purchased the liquor from Dahod.

7) Learned APP has also submitted that the applicant cannot claim bail on the ground of parity with the Accused No.1 mother of the applicant No. 2 since she has been granted regular bail whereas as per the report of the Investigating Officer, the applicant has admitted that in fact, the aforesaid illegal liquor was purchased by him.

8) The aforementioned FIR reveals that the applicant was not present at home when the police visited the premises. It further transpires that on search of the house, the police seized 24 tins of Kingfisher Sign-1857 beer worth Rs.180/-

R/CR.MA/7063/2021 ORDER DATED: 24/06/2021

each and 48 tins of Lemout Premium Strong Beer worth Rs.115/- each. The total value of 72 tins was quantified at Rs.9840/-.

9) At this stage, it would be apposite to refer to the judgment of the Supreme Court in the case of Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312, wherein the Apex Court has prescribed certain factors and parameters to be considered while considering the application for anticipatory bail. The said parameters includes:- "The possibility of the accused's likelihood to repeat similar or the other offences."

10) From the aforesaid facts, there is all probability that the applicant would misuse the liberty.

11) Thus, the possibility of the co-accused indulging in the similar type of offences are the prime consideration for the purpose of considering the accused for grant of regular bail as well as anticipatory bail. This Court has noticed that there are rampant and wide spread activities with regard to the supplying and ferrying of illegal liquor in State of Gujarat. The accused brazenly without any fear of law are indulging in supplying, transporting and selling the illegal liquor.

12) This Court finds that the trial court has not committed error in refusing to grant of anticipatory bail as the applicant is a habitual offender. The anticipatory bail can be granted in exceptional circumstances and facts and the same being extraordinary privilege, the judicial discretion has to be exercised after proper application of mind.

R/CR.MA/7063/2021 ORDER DATED: 24/06/2021

13) On the backdrop of the aforesaid observations and facts, this Court finds that the applicant is not worthy of grant of anticipatory bail and hence, the present application is rejected. Rule is discharged. Interim relief, if any, granted earlier shall stands vacated.

(A. S. SUPEHIA, J) VISHAL MISHRA