Gujarat High Court

Mohanlal Pema Jogi vs State Of Gujarat on 21 August, 2023

Bench: Hasmukh D. Suthar

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     R/CR.MA/13347/2023                         ORDER DATED: 21/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/CRIMINAL MISC.APPLICATION NO. 13347 of 2023
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                          MOHANLAL PEMA JOGI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
BHAVIN B THAKAR(9371) for the Applicant(s) No. 1
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 21/08/2023
                             ORAL ORDER

1. Rule returnable forthwith. The learned APP waives

service of notice of rule for and on behalf of the respondent-

State.

2. By way of the present application under Section 438 of

the Code of Criminal Procedure, 1973, the applicant-original

accused has prayed to release him on anticipatory bail in

the event of his arrest in connection with the FIR registered

at the Chiloda Police Station, Gandhinagar vide I-CR

No.11216006220486 of 2022, for the offences punishable

under Sections 65(a), 65(e), 116-B and 98(2) of the Gujarat

Prohibition Act.

3. Learned counsel for the applicant submits that the

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present applicant has nothing to do with the crime and is

innocent and has been falsely implicated in the crime and

the applicant has not even participated in the alleged crime.

It is further submitted that no overt act is attributed to the

present applicant. It is further submitted that the present

applicant does not have any criminal antecedents of the

present nature of offence. However, his name has been

wrongly mentioned in the complaint as his name was

discovered in the policy of the vehicle which was found in

the car during the investigation. Learned counsel for the

applicant has drawn the attention of this Court to the

agreement of sale and has submitted that the vehicle was

already sold by the applicant on 19 th May, 2022 and now he

has nothing to do with the vehicle. Therefore, he submits

that the application be allowed.

4. Per contra, learned APP has vehemently opposed the

application and submitted that the present applicant is

involved in the offence and vehicle of the applicant has also

been used in illegal activities. Considering his involvement

in the crime and his previous involvement in similar type of

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offences, custodial interrogation of the applicant is required,

as there is a possibility of tampering of evidence and evasion

of interrogation of the accused. The accused, who is directly

connected with the crime and has a history of prior

involvement in offenses under the Prohibition Act, which

have significantly affected the society, may try to evade

interrogation. He, therefore, submits that the application be

dismissed.

5. Having heard the learned advocates for the respective

parties and having gone through the evidence on record, it

appears that the applicant is the owner of the vehicle in

question, as confirmed by the current registration status

and the substantial amount of liquor found within the

vehicle is noteworthy. It is pertinent to mention that the

applicant has escaped arrest and his whereabouts are not

traceable till date. The complaint has been registered on

October 9, 2022 and the accused could not be traced for the

last ten months. Looking the allegations leveled against the

accused in the FIR, prima facie, it appears that the

involvement of the accused is that his vehicle has been used

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for illegal transportation of liquor from Rajasthan to Gujarat

and the liquor has been declared illegal in the State of

Gujarat. It is noteworthy that State of Gujarat has been

designed as a dry State. With the aim of personal gain, the

accused became involved in a large-scale conspiracy and

engaged in widespread illegal activities. The accused has

misused the liberty and involved in such illegal activity

which adversely affects the social fabric of the society.

5.1. This Court is of the opinion that the applicant is a

habitual offender and an investigation is imperative in this

case, considering that not only the public interest is at risk

but public health is also at risk due to such illegal activities.

In this context, the importance of public interest outweighs

other considerations qua personal liberty, which underlines

the need for a rigorous investigation. Therefore, the

custodial interrogation of the applicant is required.

5.2. This court has also kept in mind the law laid down by

the Hon'ble Supreme Court in the case of Siddharam

Satlingappa Mhetre V/s State of Maharashtra and Others

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reported in (2011) 1 SCC 694. But, going through the

material very carefully available against the accused it

appears that herein, no complaint has been made with view

to humiliating or tarnish the image of the present applicant.

Even in the case of Jai Prakash Singh V/s State of Bihar

and another, reported in (2012) 4 SCC 379, Hon'ble

Supreme Court was pleased to hold:

"Parameters for grant of anticipatory bail in a serious offenceare 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."

5.3 The object of anticipatory bail is that person should

not be harassed or humiliated in order to satisfy the grudge

or personal vendetta of the complainant. In present case, no

any such sort of allegation or bias is found out it is needless

to say that order under Section 438 is not a passport to the

commission of trial nor a seal against any serious

accusation, which adversely affects the society.

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5.4. Further, in view of judgment of this Court dated

07.03.2018 passed in Criminal Misc. Application No.3122 of

2018 in the case of Jigneshkumar Maheshbhai Patel vs

State of Gujarat, wherein this Court has held in para 15

and 16 that:

"15. This Court, in one of its judgments, in the case of State of Gujarat vs. Desai Jigisbhai @ Rajubhai Nagjibhai, Criminal Misc. Application No.23576 of 2015, decided on 4th February, 2016, observed as under;

"25. When a Court is given a discretion, the statute confers upon it the power to act according to what may appear to be best and appropriate under the circumstances of the particular case. The discretion is not willful or arbitrary, but is regulated by well- known and well established principles. In many circumstances, the Judge has a discretion as to whether, and in what manner, to exercise his powers.

Commonly encountered instances of judicial discretion are the discretion as to grant of bail in a non-bailable offence. However, no discretion is absolute and there may be a successful appeal to the Court of Appeal in relation to the exercise of a judicial discretion if the appellant can show that the judge exercised his discretion under a mistake of law, or under a misapprehension as to the facts, or that

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he took into account irrelevant matters or gave insufficient weight, or too much weight, to certain factors or that he failed to exercise his discretion at all.

26.In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows :

"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under (SCC p. 124, para 16) :

"If, however, a Court of Session had admitted an accused R/CR.MA/3122/2018 JUDGMENT person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the

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State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."

16. The presumption of innocence, by itself, cannot be the sole consideration for grant of bail. The presumption of innocence is one of the considerations, which the court should keep in mind while considering the plea for bail. The salutary rule is to balance the cause of the criminal defendant and the cause of public justice. Over solicitous homage to the criminal defendant's liberty can, sometimes, defeat the cause of public justice. Over a period of time, a feeling seems to exist in some quarters that the object of criminal law is to protect the rights of the accused and that the criminal justicing system is envisioned as a sentinel of the rights of the accused. It is not so. The law is the sentinel of rights of the society and of the individual. The rights of the criminal defendant will be as zealously guarded, as the cause of public justice. Pre-trial detention in itself is not an evil, nor opposed to the basic presumption of innocence. If liberty is to be denied to an accused to ensure maintenance of law and order and public health, then the courts should not hesitate in denying such liberty. Ensuring security and order including public health is a permissible non-punitive objective, which can be achieved by R/CR.MA/3122/2018 JUDGMENT pre-trial detention. Where overwhelming

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considerations in the nature aforesaid require denial of bail, it has to be denied."

6. In the above facts and circumstances and considering

the observations on the legal aspect of the matter, as

applicant is actively involved in the offence therefore, I have

absolutely no doubt that if applicant is equipped with such

an order of anticipatory bail before he is interrogated by the

Police, it would greatly harm the investigation and would

impede the prospects of unearthing truth and all the

ramifications involved in the conspiracy.