Chandubhai Fakirbhai Patel vs State Of Gujarat
2022 Latest Caselaw 7970 Guj

   R/CR.MA/15105/2022                           ORDER DATED: 15/09/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 15105 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15124 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15127 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15158 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15159 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15161 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15165 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15168 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15169 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15170 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15225 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15233 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15558 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15771 of 2022
                               With
           R/CRIMINAL MISC.APPLICATION NO. 15772 of 2022

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                        CHANDUBHAI FAKIRBHAI PATEL
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR ND NANAVATI, LD. SR. ADVOCATE; MR MIHIR JOSHI, LD. SR.
ADVOCATE; MR. AMIT DESAI, LD. SR. ADVOCATE, MR. R.S.
SANJANWALA, LD. SR. ADVOCATE, MR JAL UNWALLA, LD. SR.
ADVOCATE APPEARING WITH MR RAHUL DHOLAKIA; MS T. A. VASHI;
MR SHAHIL A SARWANI FOR THE APPLICANTS

MR MITESH AMIN, LD. PUBLIC PROSECUTOR WITH MR LB DABHI AND
MR RONAK RAVAL APPs for the Respondent(s) No. 1 in all the matters
==========================================================


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  R/CR.MA/15105/2022                                ORDER DATED: 15/09/2022




CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                           Date : 15/09/2022

                      COMMON ORAL ORDER

1.Heard learned Senior Advocate Mr.Amit Desai,

learned Senior Advocate Mr. N. D. Nanavati, learned

Senior Advocate Mr.Mihir Joshi, learned Senior

Advocate Mr. R. S. Sanjanwala, learned Senior

Advocate Jal Unwalla for the applicants in respective

applications and learned Public Prosecutor Mr.Mitesh

Amin appearing with learned APP Mr. L. B. Dabhi

with Mr.Ronak Raval for the respondent State.

2.Issue Rule returnable forthwith, in Criminal Misc.

Applications No.15771, 15772 and 15558 of 2022.

Learned APP waives service of notice of Rule for the

respondent State.

3.The applicants apprehending their arrest in

connection with 3 different FIRs namely (1) FIR

No.11192018220218/2022 registered with

Dhandhuka Police Station, District Ahmedabad

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

(Rural) on 26.7.2022 for the offences punishable

under Sections 302, 328, 120B of IPC and 67-1A of

Gujarat Prohibition Act; (2) FIR

No.11190001220293/2022 registered with

Barwada Police Station, District Botad on

26.7.2022 for the offences punishable under

Sections 302, 328, 120B of IPC and 67-1A of Gujarat

Prohibition Act; and FIR

No.11190006220446/2022 Ranpur Police

Station, District Botad on 26.7.2022 for the

offences punishable under Sections 302, 328, 120B

of IPC and 65(a) and 67-1A of Gujarat Prohibition Act,

have preferred these applications praying for grant of

pre-arrest bail.

4.It would be pertinent to mention here that originally

while the FIR, lodged with the Dhandhuka Police

Station, had been registered alleging commission of

offence punishable under Sections 302, 328, 120B of

IPC and 67-1A and whereas the Investigating Officer

had submitted report dated 3.8.2022 for addition of

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

offences punishable under sections 304, 308, 120,

118, 201, 202, 284, 34 of IPC and Sections 81 and 83

of Gujarat Prohibition Act and whereas vide order

dated 4.8.2022, the learned Additional Chief Judicial

Magistrate, Dhandhuka had directed the report to be

kept with the FIR.

5.It is noted that since the allegations made in all 3

FIRs are more or less the same, and whereas since

the apprehension of the applicants is based, in all 3

FIRs, upon a single set of transaction, therefore, to

avoid repetition and for the sake of brevity, these

applications concerning 3 different FIRs are being

decided by the present common order.

6.In all the FIRs in question, the allegations inter alia

are about commission of offences, which are in the

nature of selling spurious country made liquor that

has unfortunately resulted in the death of 46 persons

in total, and injuries being caused to 82 persons.

During the course of investigation, it was revealed

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

that the spurious country made liquor was, in fact,

made from a poisonous chemical named methyl

alcohol, and whereas it was also revealed that the

said methyl alcohol was sold by an employee of a

Company named M/s.Amos Corporation, which was

inter alia engaged in the business of bottling methyl

alcohol. The applicants before this Court being one

Managing Director, three Directors and an employee

of the company in question, (other than the

employee, who had actually allegedly sold the ethyl

alcohol, who has already been arrested).

7.Before adverting to the facts, it would pertinent to

mention that both the sides namely learned Sr.

Advocates for the applicants and learned Public

Prosecutor for the respondent State have made

lengthy arguments on various issues and whereas, in

the considered opinion of this Court, since a decision

in a pre-arrest bail application does not envisage

meticulous examination and findings on facts and

law, the submissions of both the sides are referred to

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

in brief.

8.Submissions on behalf of the applicants:

8.1. Learned Sr. Advocate Mr.Desai for the applicant

- Managing Director of the Company in question

would submit that an employee of the Company,

one Mr.Jayesh Khavadiya, who was also the

authorized person of the Company for dealing with

the methyl alcohol, appears to have stolen around

600 ltrs of methyl alcohol from the premises of the

Company and appears to have sold the methyl

alcohol to some of the other co-accused, who in

turn had sold it to some of the other co-accused

and whereas the said co-accused, who were in the

business of selling country made liquor, had mixed

water with the methyl alcohol and sold it to their

customers. Learned Sr. Advocate Mr.Desai would

submit that as far as the applicants are concerned,

the allegations with regard to sale of methyl

alcohol started with Jayesh and ended with Jayesh.

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

It is submitted that the Company in question has

all the requisite permissions and licences, more

particularly licence in the form of MA-1 and MA-2

under the Gujarat Prohibition Act, 1949 and

whereas it is not the case of any of the authorities

that the Company in question was dealing with the

substance i.e. methyl alcohol without any

requisite permission. Learned Sr. Advocate

Mr.Desai would submit that as a matter of fact, the

accused Jayesh i.e. the employee of M/s.Amos

Corporation was otherwise a trusted employee of

the Company and as per the provisions of the

Gujarat Prohibition Act, the said accused Jayesh

was an authorized person, more particularly a

Nokarnama/nomination being issued by the

Company naming the said accused Jayesh

Khavadiya and approved by the authorized officer

of the Prohibition, Abkari and Methanol

Department.

8.2. Learned Sr. Advocate Mr.Desai would submit

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

that while the FIR inter alia alleges offences

punishable under Section 302, as such there is no

such allegation against the applicant Managing

Director, which could be co-relatable to the offence

punishable under Section 302, and whereas

commission of offence under Section 304, which is

alleged in FIR No.11192018220218/2022

registered with Dhandhuka Police Station may be

the offence, which could be invoked against the

applicant - Managing Director.

8.3. Learned Sr. Advocate Mr.Desai would submit

that while again Section 304 (Part-I) could not

have been invoked against the applicant and more

particularly since there is not act which is alleged

to have been committed by the applicants with the

intention of causing death. Learned Sr. Advocate

would submit that even with regard to an offence

punishable under Section 304 (Part-II) an essential

ingredient for alleging such an offence is that the

act must have been done with the knowledge that

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

such act was by itself likely to cause death. It is

submitted that the allegation being that an

employee namely Jayesh had stolen the methyl

alcohol from the premises of the Company, and

whereas since the applicants have been sought to

be arraigned only on the ground that the

applicants being Managing Director, Directors or

employee of M/s.Amos Corporation, they have

been unnecessarily sought to be apprehended.

Learned Sr. Advocate Mr.Desai would submit that

as such there is no material to show that the

applicants had, in any manner, committed the act

in question, more particularly with the knowledge

that the act of sale of methyl alcohol would cause

death but without any intention to cause death.

Learned Sr. Advocate in support of such

submission would rely upon the decision of the

Hon'ble Apex Court in case of Keshub Mahindra

Vs. State of M.P., reported in (1996) 6 SCC

129, Samsher Khan Vs. State (NCT) of Delhi,

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

reported in (2000) 8 SCC 568, in case of Shiv

Kumar Jatia V. Staff of NCT of Delhi, reported

in (2019) 17 SCC 193, in case of Joseph Kurian

Philip Jose v/s State of Kerala, reported in

reported in (1994) 6 SCC 535, in case of M/s.

Cheminova India Ltd. & Anr. Vs. State of

Punjab and Anr., reported in (2021)

SCConline SC 573 and a decision of this Court in

case of Dharmendrabhai @ Bakabhai Joitaram

Patel Vs. State of Gujarat in Criminal Misc.

Application No.5325 of 2013.

8.4. Learned Sr. Advocate Mr.Desai would further

submit that while the Company had been handling

methyl alcohol since 2008 and whereas the

present bottling of methyl alcohol having started

since 2019 and since there has been no breach of

duty, as alleged, at the most, assuming without

admitting, what could be alleged against the

applicant was an offence punishable under Section

304-A that is for causing death by negligence,

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

which also is a bailable offence.

8.5. Learned Sr. Advocate would thereafter refer to

Sections 65A and Section 79 of Gujarat Prohibition

Act. Learned Sr. Advocate Mr.Desai would submit

that Section 65A inter alia states with regard to

punishment for Laththa. Laththa being defined as

spurious liquor containing methanol or other

poisonous substance, which may cause harmful or

injurious effects to the human body. It is

submitted that Section 65A(3) inter alia states with

regard to a person supplying material for

manufacture of Laththa, which could be the

allegation that could be levelled against Jayesh,

since Section 65A(1) envisaging punishment for

manufacturing, transporting or having possession

of Laththa and Section 65A(2) specifying the

punishment for manufacture, sale, etc., of Laththa,

more particularly where there is a death on

consumption of laththa, both of the contingencies

may not be applicable to Jayesh and, in any case,

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

would not be allegations, which could be levelled

against the applicants.

8.6. Insofar as Section 79 of the Gujarat Prohibition

Act is concerned, the same, according to the

learned Sr. Advocate, is with regard to liability of

the licensee for acts of his servant. It is submitted

that the said Section makes a licensee vicariously

responsible and whereas the licensee is made as

responsible as the actual offender for any offence

committed by his employee for acting with his

express or implied permission, unless the licensee

establishes that all due and reasonable

precautions were exercised. It is submitted that

the person who was handling the methyl alcohol

on day-to-day basis was Jayesh, i.e. the accused

who has been arrested and whereas a

Naukarnamu/nomination was also issued in his

favour approved by the Department. It is also

submitted that an employee, Rajendra Dasadiya,

who is a B.E. (Chemical) Engineer was also

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

appointed as a Supervisor over Jayesh and

whereas a Naukarnamu/nomination was also

issued in favour of the other employee. It is

submitted by the learned Sr. Advocate Mr.Desai

that all such due and reasonable precautions were

exercised by the applicants and, therefore, there

may not be a reasonable cause to allege

commission of offence punishable under Section

79 against the applicants. Learned Sr. Advocate

would further rely upon proviso to Section 79,

which inter alia states that no person, other than

the actual offender, shall be punished with

imprisonment, except such person, other than the

offender, committing default of payment of fine. It

is, thus, submitted that even as far as vicarious

liability is concerned, except the licensee

committing a default in payment of fine, the

licensee would not be sentenced with

imprisonment. Learned Sr. Advocate would further

submit that a plain reading of the proviso making

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

it clear that the offence being bailable the

applicant may be considered for release on

anticipatory bail.

8.7. Learned Sr. Advocate would also submit in this

regard that while due and reasonable precaution

had been taken, the applicant could not be alleged

to have not taken impossible precautions with

regard to handling of methyl alcohol. It is

submitted that prima facie Jayesh had stolen

methyl alcohol and for such an act, the applicants

could not be stated to have not taken due and

reasonable precautions when all precautions which

would have been taken in normal course of

business, had been taken by the applicant.

8.8. Learned Sr. Advocate would also refer to the

affidavit by the Investigating Officer, which inter

alia states about the applicants neither having

remained present nor produced any documentary

evidence. It is submitted that as far as the

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

documentary evidence part is concerned, the

entire record of the Company has been seized by

the Prohibition Department and, therefore, there

was no document available with the applicants.

8.9. Learned Sr. Advocate also refer to paragraph

10.1 of the affidavit, more particularly with regard

to an amount of Rs.35 lac having been paid to

accused Jayesh within a period of three years,

inter alia implying that the applicants are in

connivance with Jayesh. It is submitted by the

learned Sr. Advocate that the said amount, as

rightly mentioned in the affidavit-in-reply, has

been paid over a period of three years. Over and

above the same, it is submitted that Jayesh, who is

supervising the bottling of the methyl alcohol was

also paying salary to labourers/workmen, who are

engaged in the said operation and whereas the

amount of Rs.35 lac spread over a period of three

years also includes such amount which was paid

by Jayesh to other labourers/workmen.

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

8.10. Learned Sr. Advocate would also take this

Court through the decision of the Hon'ble Apex

Court in case of Sushila Aggarwal and others

Vs. State (NCT of Delhi) and another,

reported in (2020) 5 SCC 1, more particularly

elaborating the observations of the Hon'ble Apex

Court in support of his contention as to why

custodial interrogation of the applicant is not

required. Learned Sr. Advocate would also refer to

a decision of this Court in case of Girishbhai

Maganlal Pandya Vs. State of Gujarat in

Criminal Misc. Application No.2942 of 2014

dated 23.3.2015, in support of his submission

and would request this Court to release the

applicant on pre-arrest bail.

8.11. Learned Sr. Advocate Mr.N. D. Nanavati,

learned Sr. Advocate Mr.Mihir Joshi, learned Sr.

Advocate Mr.R. S. Sanjanwala and learned Sr.

Advocate Mr.Jal Unwalla on behalf of the other

applicants would submit that the applicants are

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

independent/non-Executive Directors. In this

regard, financial statements of M/s.Amos

Enterprise Pvt. Limited of which M/s.Amos

Corporation is a sub-entity, is relied upon to show

that while the applicant of Criminal Misc.

Applications No.15158, 15772 and 15170 of 2022

was the Managing Director, and whereas applicant

of Criminal Misc. Applications No.15165, 15169,

and 15771 of 2022 being the employee, all other

applicants are shown as Independent Directors or

non-Executive Directors, as the case may be. It is

submitted that paragraph 8 of the affidavit-in-reply

lists the grounds against the applicants, more

particularly having regard to provisions of Section

79 of the Gujarat Prohibition Act. It is submitted

that paragraph 8(i) inter alia alleges that the

Company knew about the shortfall on basis of E-

mails sent by M/s.Finar Limited i.e. the supplier of

Methyl Alcohol and whereas no corrective steps

were taken. Paragraph 8(j) inter alia states that

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

since the bank account of M/s.Amos Corporation

also showed the Managing Director as well as the

independent Director and Executive Directors as

authorized persons for financial transactions,

therefore, it should not be contended by the

independent, non-Executive Directors were not

engaged in day-to-day affairs of the Company.

Paragraph 8(k) states about the criminal

negligence on part of the applicants in engaging a

10th Pass person i.e. Jayesh for handling the

substance, which was extreme poisonous.

8.12. Learned Sr. Advocate Mr.Joshi would

submit that while the applicants, whom he

represents, are independent non-Executive

Directors and whereas, in any case, insofar as the

allegations with regard to shortfall and allegations

with regard to negligence in appointing a 10 th pass

person i.e. co-accused Jayesh to handle the

poisonous substance, has already been touched

upon by learned Sr. Advocate Mr.Desai appearing

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

for the Managing Director and whereas insofar as

the aspect with regard to independent Directors

being authorized to make financial transactions on

behalf of the Company or attending Board

Meetings of the Company, by itself would not

denude the applicants of the status of persons of

Directors not engaged in the day-to-day affairs of

the Company in question.

8.13. Learned Sr. Advocate Mr.Joshi would

further rely upon Section 299 of IPC, which states

about culpable homicide. Learned Sr. Advocates

would submit that Section 299 envisages certain

acts being done by a person causing death or

bodily injury etc., and whereas learned Sr.

Advocate would also refer to Section 32 of IPC i.e.

with regard to general explanations and would

submit that Section 32 inter alia states that except

where a contrary intention appears, the words

which refer to an act being done would also extend

to illegal omissions. Learned Sr. Advocates would

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

submit that considering the definition of culpable

homicide, which requires positive acts to be

committed by the accused, in the same manner

the illegal omission should also be a specific

omission and whereas mere negligence would not

make out a case of criminal negligence against the

independent, non-Executive Directors. Learned

Sr. Advocate Mr.Mihir Joshi, in support of such

contention would rely upon the decision of the

Hon'ble Apex Court in case of Shantibhai J.

Vaghela & Anr. Vs. State of Gujarat and Anr.,

reported in (2012) 13 SCC 231.

8.14. Learned Sr. Advocate Mr.Joshi would also

reiterate the submissions made by the learned Sr.

Advocate Mr.Desai that for bringing the applicants

under the ambit of an offence punishable under

Section 304 of IPC, there has to be a specific

breach of duty alleged, which breach of duty was

proximate cause of death. It is submitted that the

allegation of general omission to do a particular

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

duty may not suffice. Learned Sr. Advocate would

thereafter rely upon the decision of the Hon'ble

Apex Court in case of Kurban Hussein

Mohammedali Rangwalla Vs. State of

Maharashtra, reported in 1965 (2) SCR 622 to

submit that even for alleging an offence under

Section 304A, it should be shown that the death

was the direct result of rash and negligent act of

the accused and whereas the act concerned must

be proximate cause of the death without

involvement of negligence of another. It is

submitted that such act on part of the present

applicants i.e. the independent Directors/non-

Executive Directors is not found anywhere.

Learned Sr. Advocate Mr.Joshi would, therefore,

submit that as no case for custodial interrogation

of the independent, non-Executive Directors being

made out, this Court may consider releasing them

on pre-arrest bail.

8.15. Learned Sr. Advocate Mr.Jal Unwalla on

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

behalf of the applicant of Criminal Misc.

Application No.15165, No.15771 and No.15169 of

2022 would submit that the applicant was an

employee of the Company namely M/s.Amos

Corporation. It is submitted that the present

applicant is holding a degree of B.E. (Chemical)

and has experience of over 23 years in this field.

Learned Sr. Advocate would submit that while the

allegation is insofar as the said applicant is that he

was not remaining present or available for

investigation as found at paragraph 8(d) of the

affidavit-in-reply. It is submitted that as against

the present applicant, no allegation of even

negligence has been made in the affidavit-in-reply.

It is submitted by the learned Sr. Advocate that

from the facts it would appear that the methyl

alcohol had been stolen by Jayesh from the

premises of the Company and had later on sold it

to other co-accused. It is submitted that while the

present applicant was appointed as Supervisor,

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

including over Jayesh and whereas when the

allegation is that the junior employee had stolen

the offending chemical in question, no criminality

could be presumed, more particularly there being

no positive act or even positive omission alleged

against the applicant concerned. Thus submitting

learned Sr. Advocate has requested this Court to

release the applicant on pre-arrest bail.

9.Submissions on behalf of the State:-

9.1. These applications are vehemently contested by

the learned Public Prosecutor Mr.Mitesh Amin

appearing with learned APPs Mr.Dabhi and

Mr.Raval for the respondent State. Learned PP

would submit that the investigation till now has

revealed that the methyl alcohol which had been

sold by the bootleggers as country made liquor

resulting in 46 deaths and 82 injuries had

originated from the godown of the Company in

question, where the applicants are Managing

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

Director, Directors or employee. It is submitted

that while an attempt is being made to submit that

methyl alcohol was stolen from the factory

premises, there is no material to show that the

applicants have taken any action with regard to

such theft. Learned PP would, in this regard,

submit that such statements made by persons

apprehending their arrest require a closer scrutiny.

9.2. Learned PP would further submit that while

reliance is placed on Section 65A of Gujarat

Prohibition Act to submit that the material for

manufacture of laththa had been supplied by

Jayesh and not the applicant, there is as such no

material or basis to make such a submission, more

particularly when investigation has revealed that

the methyl alcohol had originated from the factory

premises of the applicants.

9.3. Learned PP would submit that financial records

of M/s.Finar Limited were analyzed and it would

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

reveal that there is a shortfall of 2604 ltrs of

methyl alcohol, comparing the quantity sent and

the quantity received from M/s.Amos. Learned PP

would submit that only a custodial interrogation

would reveal the details with regard to such

shortfall.

9.4. Learned PP would also refer to the licence Form

MA-1 more particularly Condition No.5(1) and 5(2)

and would submit that the licence imposes a

prohibition on the licensee. Learned PP would

submit that Condition No.5(1) and 5(2) inter alia

prohibiting use of methyl alcohol for making a

beverage or as a mixture with a beverage or

partially as a beverage or as an ingredient in any

medicine. Learned PP would submit that such

being the exact nature of prohibition, having

regard to the fact that methyl alcohol had been

used in preparation of the laththa as a beverage,

the licensee i.e. the Managing Director and other

Directors cannot be heard to state that they did

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

not have any role in the entire episode. Learned PP

would also submit that as far as

Naukarnama/nomination is concerned i.e. for a

limited purpose and whereas more particularly

because the person who had allegedly stolen the

methyl alcohol was a nominated/authorized

person, the applicants cannot be heard to contend

that they may not be liable for the incident in

question. Learned PP would submit that insofar as

the said person i.e. Jayesh, who has stolen the

material in question it appears that he had

received approximately Rs.35 lac in last three

years and whereas In last one year he has

received Rs.9 lac in his bank account from the

applicant Company. It is submitted that custodial

interrogation is also required to find out the exact

nature of the transactions.

9.5. Learned PP would also submit that Section 79 of

the Gujarat Prohibition Act clearly imposes a

liability on the licensee for any act done by a

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

person employed by him and whereas in view of

such a specific provision the applicants cannot be

heard to state that the applicants cannot be held

vicariously liable. Learned PP would also supply

certain documents collected during the

investigation, more particularly showing the

presence of the independent/non-Executive

Directors in the Board Meeting of the Company.

Learned PP would submit that independent/non-

Executive Directors having financial authority and

attending almost 75% to 100% of the Board

Meetings of the Company would show that though

they were appointed as independent/non-

Executive Directors, yet they were engaged in day-

to-day affairs of the Company.

9.6. Learned PP would also submit that a custodial

interrogation is elicitation oriented and an

interrogation with protection would reduce the

interrogation to a mere ritual. Learned PP in this

regard would refer to a decision of the Hon'ble

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

Apex Court in case of State through CBI Vs. Anil

Sharma, reported in (1997) 7 SCC 187.

Learned PP would further contend that grant of

anticipatory bail to the applicants, more

particularly when the investigation is in progress

would prejudice the full, fair and proper

investigation and hence, it is requested that this

Court may not exercise discretion in favour of the

applicants.

9.7. Learned PP would submit that insofar as the

decision relied upon by the learned Sr. Advocate

for the applicants, except the decision of the

Hon'ble Apex Court in case of Sushila Aggarwal

and others (supra), all other judgements may not

be relevant, more particularly such decisions being

passed at the stage of quashing of complaints

under Section 482 or at various other stages and

whereas none of the decisions would be at a stage

where the Court was considering a plea for grant

of pre-arrest bail.

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

9.8. Learned PP would submit that insofar as

decision of Shiv Kumar Jatia (supra) is

concerned, the said decision was in context of an

application for quashing of a complaint under

Section 482 of Cr.P.C., after the charge-sheet had

been filed, whereas in the instant case, the

investigation is not complete. Insofar as the

decision of Joseph Kurian Philip Jose (supra), it

is submitted by the learned PP that the decision of

the Hon'ble Apex Court was against the judgement

of the Kerala High Court, whereby the appellants

were convicted. Learned PP would also submit

that while the facts of the case was also with

regard to persons dying after consuming spurious

liquor and whereas it is submitted that from the

observations of the Hon'ble Apex Court, it appears

that the liquor was adulterated with methyl alcohol

to the extent of 2.64%. Learned PP would submit

that as against the same, it is revealed that the

spurious liquor which had been consumed by the

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

deceased and the injured contained methyl alcohol

to the extent of 97-98%.

9.9. Learned PP would also submit that decision of

the Hon'ble Apex Court in case of M/s.

Cheminova India Ltd. & Anr. (supra) was also in

context of a quashing application under Section

482 of Cr.P.C. It is submitted that insofar as the

decision in case of Shantibhai J. Vaghela & Anr.

(supra), the decision was again in context of a

quashing application. It is further submitted that

the decision of the Hon'ble Apex Court in case of

Kurban Hussein Mohammedali Rangwalla

(supra) was the decision against conviction of

accused. Learned PP would submit that having

regard to the said decisions that since the

observations of the Hon'ble Apex Court were at a

completely different context, therefore, the

decision would not be in any manner applicable.

9.10. Learned PP would also submit that insofar

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as Criminal Misc. Application No.5325 of 2013 is

concerned, while the decision was rendered in

context of an application under Section 482 of

Cr.P.C., at the same time from the decision it

appears that impeccable scientific material had

been placed before this Court, which had weighed

with the Court and such not being the situation in

the instant case. It is also insofar as the decision

in case of Girishbhai Maganlal Pandya (supra),

it is submitted that the decision was rendered in

context of an application under Section 482 of

Cr.P.C., more particularly challenging the order

whereby the Sessions Court had rejected

discharge application filed by the applicants. It is

submitted by the learned PP that as of now the

investigation is open and what would be the

charge that would be levelled against the

applicants is not discernible at this stage. Hence,

a decision given by this Court, where order of

discharge was challenged, may not be helpful to

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the applicants.

9.11. Learned PP would submit, in conclusion,

that even considering the submissions of the

applicants, it is clear that the methyl alcohol,

which had caused around 46 deaths and 82

injuries, had originated from the factory of the

applicants. Learned PP would submit that since no

special circumstances has been shown by the

applicants for grant of pre-arrest bail and having

regard to the fact that investigation has prima

facie revealed some role of the applicants,

therefore, this Court may not exercise discretion in

favour of the applicants.

10. Applicants in Rejoinder

10.1. Learned Sr. Advocate Mr.Desai, in

rejoinder, would take this Court through the

decision of the Hon'ble Apex Court in case of

Sushila Aggarwal and others (supra) and would

submit that the theory of power to be exercised

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

under Section 438 of Cr.P.C., only in exceptional

circumstances has been put to rest in the decision

of the Constitutional Bench in the said decision. It

is submitted that the Hon'ble Apex Court has

clearly observed that the accused is not required

to make out a special case for grant of anticipatory

bail. Learned Sr. Advocate Mr.Desai, as regards

the amount of Rs.35 lac, which were travelled to

Jayesh, would reiterate his submission that the

same was for a period of three years and whereas

Jayesh was incharge of labourers, who were doing

this work. Learned Sr. Advocate would also submit

that as far as the dealing between M/s.Amos

Corporation and M/s.Finar Limited is concerned,

there does not appear to be any shortfall and

whereas it is submitted that the Companies used

to reconcile their books of accounts regularly and

as a matter of fact, till recently i.e. up to May -

June 2022 books of accounts have been

reconciled. It is also submitted that as far as the

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

shortfall is concerned, the Companies have

devised a system whereby the Companies in

question would immediately refer to the other

Company on E-mail about the short fall and

appropriate reconciliation would be done. Learned

Sr. Advocate has also relied upon certain E-mails

to show that as and when E-mail had been sent by

M/s.Finar Limited showing shortfalls the same had

been replied and ultimately a satisfactory

conclusion had been arrived at between both the

parties that there being no shortfalls.

10.2. It is also submitted by the learned Sr.

Advocate that while the books of accounts of

M/s.Finar Limited had been looked into by the

Chartered Accountants appointed by the

Investigating Agency who had come to a

conclusion about 2600 ltrs of methyl alcohol being

short, but at the same time books of accounts of

M/s.Amos Corporation had not been verified.

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10.3. It is submitted that as such Gujarat Methyl

Alcohol Rules 1981, more particularly Rule 6(7)

inter alia permits writing off loss in transit or

shortage up to 5% subject to the licensee

informing Licensing Authority within 96 hours from

the time of arrival of methyl alcohol consignment

when such transit loss exceeds 5%. It is submitted

by the learned Sr. Advocate Mr.Desai that the

shortfall of 2604 ltrs as could be discernible from

the submissions of learned PP is of the duration of

over three years and considering the extent of the

total transaction between the parties would only

come to around 0.15% of the transaction between

the Companies during the said period. Learned Sr.

Advocate would submit that the said loss being

within the permissible criteria of 5%, which could

be written off as loss without prior permission of

the Licensing Authority, such an alleged shortfall

ought not to be a reason for which custodial

interrogation of the applicants is sought for.

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

10.4. Learned Sr. Advocate has also referred to

the decision of the Hon'ble Apex Court in case of

S.M.S. Pharmaceuticals Ltd vs Neeta Bhalla

& Anr, reported in (2005) 8 SCC 89 and in case

of Sunil Bharti Mittal vs CBI, reported in

(2015) 4 SCC 609 in support of his submission

that the Directors and/or the Managing Directors

could not be held responsible vicariously. Having

regard to such submissions, learned Sr. Advocate

would once again reiterate that this Court may

consider releasing the applicants on pre-arrest

bail.

10.5. Learned Sr. Advocate Mr.Desai would

further submit that the act in question i.e. methyl

alcohol which had originated from the Company of

the applicants having been sold as spurious liquor

resulting in death of 46 persons and injury caused

to around 82 persons was absolutely unfortunate.

Learned Sr. Advocate would submit that the

applicants, without admitting or accepting the

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liability and without accepting any wrong doing

and expecting any concession from this Court on

that count, would submit that just with a view to

provide some succor to the family members of the

deceased and some assistance to the injured

persons, the applicants are ready and willing to

deposit an amount of Rs.2.20 crore in the ratio of

Rs.3 lac per deceased and Rs.1 lac per injured

person, which may be appropriately directed to be

distributed by this Court. Learned Sr. Advocate

would further submit that such deposit of the

amount is absolutely voluntary and whereas in

case at a later stage in any proceedings if the

applicants are found liable to pay any fine or

compensation with regard to the present incident,

then they will not request the said amounts

deposited to be set off against such fine or

compensation. Learned Sr. Advocate would also

submit that an additional affidavit would also be

filed by the Managing Director undertaking to

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

deposit such amount before any authority as may

be deemed appropriate by this Court. After

hearing of this application had concluded, an

affidavit of the applicant of Criminal Misc.

Application No.15170 of 2022, i.e. the Managing

Director of the Company had been filed showing

willingness to contribute an amount of Rs.2.20

crore to the victims.

11. At this stage, at the direction of this Court, the

learned PP has tendered the statement of Mr.Jayesh

Khavadiya i.e. the accused who is alleged to have

actually taken the methyl alcohol from the premises

of the Company and sold it to other co-accused,

recorded immediately after his arrest and also a

statement recorded under Section 164 of Cr.P.C.

Both the statements have been perused by this

Court.

12. Heard learned Advocates for the respective

parties. Perused the documents on record, including

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

the investigation papers as well as the statement

under Section 164 of Cr.P.C., of one of the accused as

referred to herein above.

13. While this Court does not intend to discuss the

material and evidence in detail, suffice it to state that

the following aspects have been taken into

consideration by this Court for deciding these

applications;

13.1. While this Court has considered the

submissions made on behalf of the applicants and

the State, as well as the statements of Jayesh

Khawadiya both before the Investigating Officer as

well as before the Judicial Magistrate, it appears to

this Court that the statement of Jayesh is one of

the most crucial aspects that would decide the role

of the present applicants;

13.2. It prima facie appears from the statements

of Jayesh both before the I.O., and particularly in

his statement under Section 164 of Cr.P.C., that

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Jayesh had sold 600 ltrs of methyl alcohol to the

co-accused for a consideration of Rs.41,500/-. It

appears that before the said transaction he had

sent a small quantity i.e. 1 ltr., of methyl alcohol

to the said co-accused for testing as a sample. It

also appears that the entire operation i.e. of calling

the auto-rickshaw, loading auto-rickshaw, taking

the material to the destination spot and handing

over the material and taking the cash had been

done by Jayesh. It also appears from the

statement, more particularly under Section 164

that Jayesh had expressed regret and remorse

over his act.

13.3. It also appears that the transaction of

selling Methyl Alcohol was not a continuous

transaction, more particularly in view of the fact

that prior to 600 ltrs. being stolen and sold, Jayesh

had, for the first time, given 1 ltr., methyl alcohol

as a sample to the co-accused for testing;

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13.4. Insofar as the applicants are concerned, it

prima facie appears to this Court that there is no

material to allege commission of offence under

Section 302 of IPC;

13.5. It further appears to this Court that prima

facie there is no material either alleged in the FIR

or gathered during investigation, whereby prima

facie involvement of the applicants for offences

punishable under Section 304 (Part-I) of the IPC

could be alleged;

a) It appears that while there is no overtact

attributed to the present applicants done with

the intention of causing death, even insofar as

an omission of not doing any particular act is

concerned, prima facie there does not appear to

be any intention, which could be attributed to

the present applicants;

13.6. Having regard to the decisions of the

Hon'ble Apex Court in case of Keshub Mahindra

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(supra), Samsher Khan (supra), Shiv Kumar Jatia

(supra), as also the view taken by this Court in

Criminal Misc. Application No.5325 of 2013,

referred to herein above, prima facie for alleging

an offence under Section 304(Part-II) an essential

requirement would be that the accused had a

knowledge that by committing such an act of

commission or omission death was likely to be

caused. Prima facie it appears to this Court that

there is no allegation against the applicants of

committing any particular act with the knowledge

that the same would cause death;

13.7. Such observation, notwithstanding the

contention of the learned PP Mr.Mitesh Amin that

there has been a shortfall of around 2600 ltrs., of

methyl alcohol and whereas it appears to this

Court that such shortfall was spread over a period

of three years and well within the permissible

limits of writing off, as found in Rule 6(7) of the

Gujarat Methyl Alcohol Rules 1981;

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

13.8. It also appears to this Court that the

shortfall of 2600 ltrs., was upon examination of the

books of accounts of M/s.Finar only and whereas it

would only be clear after examining the books of

accounts of both the parties as to whether there

would be any actual shortfall;

13.9. It also appears that the books of accounts

and all records have been seized by the Gujarat

Prohibition Department;

13.10. This Court is also of the prima facie opinion

that, in view of the statements of Jayesh referred

to herein above, it would be the said accused, who

could be stated to be done an act punishable

under Section 65A(3) of the Gujarat Prohibition

Act;

13.11. This Court has also appreciated that

Section 79 of the Gujarat Prohibition Act, which

holds the licensee vicariously liable, does not

envisage punishment of imprisonment to any

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person except the actual offender and whereas

any person other than the actual offender could be

sentenced with imprisonment only of default of

payment of fine;

13.12. This Court has also considered that the

applicants before this Court have no criminal

antecedents, and whereas the Managing Director

is aged about 58 years, one of the independent

Director is aged 90 years, the other independent

Director is aged around 84 years, the non-

Executive Director aged 53 years, and the

employee is aged 56 years.

13.13. Considering the fact situation in context of

the law laid down by the Hon'ble Apex Court in

case of Siddharam Satlingappa Mhetre v.

State of Maharashtra and Ors. reported in

(2011)1 SCC 694, it appears that while the

accusation against the applicants of being

involved in the offence, which is a very serious

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

and grave offence, yet prima facie it appears that

there is neither any overt act or illegal omission,

which could be attributed to the applicants. It

also appears that the applicants do not have any

antecedents of being involved in any criminal

activity or being convicted and imprisoned by a

Court in respect of any cognizable offence. It also

appears that there is no apprehension raised that

the applicants are likely to flee from justice. It

also appears that while, as noted herein above,

there is no prima facie case of any overt act or

illegal omission as alleged to have been

committed by the applicants and whereas in any

case, since the licence to deal with the product in

question has been suspended/cancelled, there is

no likelihood of any repetition of the offences in

question. While it does not appear that the

accusations have been made with the object of

injuring or humiliating the applicants by arresting

them, more particularly since the investigation

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has prima facie revealed that the tragedy had

occurred on account of the deceased and the

injured drinking spurious liquor, which contained

Methyl Alcohol which had originated from the

factory premises of the applicants, yet as noted

herein above, in view of the prima facie findings

of there being no overtact or illegal omission

attributed to the present applicants, this Court

would be inclined to hold in favour of the

applicants. Furthermore, insofar as the

anticipatory bail affecting cases of large

magnitude or affecting large number of people,

while it appears to this Court that the magnitude

of offence is huge, but at the same time, it also

appears, more particularly as noted herein above,

prima facie from the statement of accused Jayesh

that the applicants may not have been complicit

and thus, in the considered opinion of this Court,

anticipatory bail to the applicants would not have

any adverse consequence. Furthermore, insofar

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as the balance which is required to be struck

between the two factors, in the considered

opinion of this Court, considering the prima facie

observation of this Court that the applicants may

not be stated to have done any overtact or illegal

omission, therefore, while no prejudice could be

caused to the free, fair and full investigation, but

at the same time, arrest of the applicants would

result in harassment, humiliation and unjustified

detention of the accused and, therefore, the

balance would tilt in favour of the applicants

herein. Furthermore, there is no apprehension

raised by the Investigating Officer that the

applicants could either tamper the witnesses and

whereas since the complainants are Police

Officers i.e. the State itself, therefore, there could

not be any apprehension that they could be

threatened. Again, considering the magnitude of

the offences and the fact that the chemical which

caused large number of deaths and even large

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

number of injured victims had originated from the

factory of the applicants and, therefore, it could

not be said that the prosecution was frivolous, yet

considering the aspect of no specific overt act

being made out against the present applicants or

even any specific illegal omission also not being

made out and further in view of the statement of

Jayesh since it appears that the transaction of

selling Methyl Alcohol had been undertaken by

Jayesh individually and independently and also

considering the fact that such transaction of sale

of Methyl Alcohol does not appear to be a regular

feature, therefore, in the considered opinion of

this Court, discretion can be exercised in favour of

the applicants.

14. Having regard to the circumstances noted

above, and considering the law laid down by the

Hon'ble Apex Court, this Court is inclined to

consider this application.

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15. This Court has also appreciated the gesture on

part of the applicants of providing an amount of

Rs.2.20 crore to be paid as compensation to the

victims of the unfortunate tragedy and whereas it is

clarified that the same is not an aspect which has

weighed with this Court while considering this

application.

a) Insofar as the amount of compensation is

concerned, the same shall be deposited by the

applicants as per their undertaking within a

period of four weeks from the date of receipt of

this order with the Gujarat State Legal Services

Authority. Furthermore, since the FIRs have

been registered within the jurisdiction of two

different Districts i.e. District Botad and

District Ahmedabad, the Secretary, District

Legal Services Authority, Botad District and the

Secretary, District Legal Services Authority,

District Ahmedabad (Rural), shall coordinate

with the Investigating Officers and the Public

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Prosecutors and prepare a list of legal heirs of

the victims of the tragedy in question and a list

of persons injured. Based upon such lists

prepared, the Secretaries of the concerned

Districts shall seek for disbursement in the

ratio of Rs.3,00,000/- (Rupees three lac only)

per deceased victim and Rs.1,00,000/- (Rupees

one lac only) for the injured victim and whereas

the Gujarat State Legal Services Authority shall

appropriately disburse the amount in favour of

the Secretaries of the concerned District Legal

Services Authorities, who shall then

appropriately disburse the amounts to the legal

heirs of the deceased victims and the injured,

after due verification of their identities.

b) It is required to be observed here that as

per the information supplied to this Court, 46

persons have expired and 82 persons have

received injuries, therefore, the total amount of

Rs.2.20 crore would be distributed in the

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

manner as : 46 (deceased) x Rs.3,00,000/- =

Rs.1,38,00,000/- + 82 (injured) x Rs.1,00,000/-

= 82,00,000/- = Rs.2,20,00,000/-. It is directed

that the Secretaries of the concerned District

Legal Services Authorities shall prepare the

report insofar as the deceased and the injured

persons within a period of four weeks from the

date of receipt of this order and whereas the

same shall be forwarded as directed herein

above to the Secretary, Gujarat State Legal

Services Authority, Gujarat High Court,

Ahmedabad and upon receipt of such report,

the Secretary, Gujarat State Legal Services

Authority, Gujarat High Court, Ahmedabad

shall forthwith distribute the said amount in

favour of the Secretaries of the District Legal

Services Authority concerned. Further

disbursal to the legal heirs of the deceased

victim and the injured victim shall be done

within a period of two weeks thereafter. The

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Secretaries of the concerned Districts are at

liberty to take assistance of the learned APP of

the concerned Districts and/or the Investigating

Officer to prepare the reports. In case any

clarification is required, it would be open for

the concerned Secretaries or the Secretary,

Gujarat State Legal Services Authority, Gujarat

High Court, Ahmedabad to approach this Court.

Furthermore, in case the number of deceased

or injured exceeds the number intimated by the

Investigating Officer to this Court, then also it

would be open for the Secretaries to inform this

Court and whereas this Court hopes that

appropriate addition to the amount of Rs.2.20

crore shall be made by the applicants herein.

The Secretary, Gujarat State Legal Services

Authority shall supervise the entire exercise

and an appropriate report would be tendered to

this Court after the entire exercise of

disbursement is over.

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

16. This Court seeks to refer to an observation

made by a learned Single Judge of this Court

(Coram: J. B. Pardiwala, J - as he then was) at

paragraph 49 in case of Girishbhai Maganlal

Pandya (supra), which reads as thus:-

"49. Dictating this judgment was a very painful experience. The very thought of a four year old child getting crushed beneath the tyres of his own school bus makes my heart bleed with pain and agony. I can also imagine the pain and agony the parents of the deceased must be undergoing even as on today. However, such thoughts should not allow the mind of a judge to get boggled, otherwise justice cannot be done. However, harsh one may find the law, but at the same time, the law remains the law and it has got to be respected."

This Court is also anguished and pained at the

thought of 46 persons losing their lives rendering

their families destitute and 82 persons injured, on

account of a completely avoidable tragedy. This

Court would sympathize with the families of the

unfortunate deceased and also with the injured and

their families. However, as observed by the Court

in the above quoted paragraph, this Court has not

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

allowed such thoughts to distract or boggle down its

mind while passing this order.

17. In the result, the present applications are

allowed by directing that in the event of applicants

herein being arrested pursuant to FIRs: (1) FIR

No.11192018220218/2022 registered with

Dhandhuka Police Station, District Ahmedabad

(Rural); (2) FIR No.11190001220293/2022

registered with Barwada Police Station, District

Botad; and (3) FIR No.11190006220446/2022

Ranpur Police Station, District Botad, the

applicants shall be released on anticipatory bail on

furnishing a personal bond of Rs.1,00,000/- (Rupees

One lac only) each with one surety of like amount

each, on the following conditions that the applicants:

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 23.09.2022 between 11:00 a.m. and 2:00

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the Police;

(e) shall not leave India without the permission of the Court and, if having passport shall surrender the same before the Trial Court within a week;

(f) shall at the time of execution of bond, furnish the permanent residential address to the Investigating Officer and the Court concerned and shall not change their residence till the final disposal of the case or till further orders;

(g) shall mark their presence once in a month (on 1st Monday) for a period of next six months at the concerned Police Station;

18. Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicants to the competent Magistrate, if he thinks it just and proper and

R/CR.MA/15105/2022 ORDER DATED: 15/09/2022

learned Magistrate would decide it on merits. The applicants shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if ultimately granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicants, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

19. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(NIKHIL S. KARIEL,J) V.V.P. PODUVAL