Nandaben Natwarbhai @ Natubhai ... vs State Of Gujarat
2023 Latest Caselaw 6217 Guj

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      R/CR.MA/14774/2023                              ORDER DATED: 24/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 14774 of 2023

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                NANDABEN NATWARBHAI @ NATUBHAI PARMAR
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR KEVAL G BRAHMBHATT (BAROT)(9900) for the Applicant(s) No. 1
MS DIVYANGNA P JHALA, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                               Date : 24/08/2023

                                 ORAL ORDER

1. RULE. Learned APP waives service of notice of Rule 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 accused has prayed to

release him on anticipatory bail in the event of his arrest in connection

with the FIR being C.R. No.11204021230350 of 2023 registered with

Dakor Police Station, District Kheda for the offences punishable under

Sections 65(A), 65(e) and 81 of the Prohibition Act, 1949.

3. Learned advocate Mr. Keval G. Brahmbhatt appearing for

the applicant submitted that the present applicant is innocent and falsely

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implicated in the alleged offence. He submitted that the applicant is

housewife and she was very much present at the scene of offence. It is

submitted that after enough inquriy, she was asked to leave the Police

Station. Learned advocate for the applicant submits that the allegation

levelled against the applicant is not serious in nature and for which no

custodial interrogation is required. Therefore, learned advocate for the

applicant requested to allow the present application as the present

applicant dragged into the aforesaid offence on the basis of doubt only.

4. Per contra, learned APP appearing for the respondent State

has vehemently opposed the application and stated that being a lady the

applicant was not arrested when liquor was arrested and thereafter, notice

under Section 41(A) of Criminal Procedure Code, 1973, was issued to the

applicant four time but she did not co-operate with the investigation,

therefore, she is not entitled for any protection. She further submitted that

the present application may be dismissed as she was found in the

conscious possession of liquor with her husband and she is involved in

such illegal acitivity.

5. Heard learned advocates appearing for the respective parties

and given thoughtful conclusion to the arguments canvassed by both

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sides.

6. In the present case, it appears that the present applicant is

involved in the illegal activities of transportation and selling of country

made liquor and it is kept in possession and stored by the accused and

disbursed in various places. Further, it appears that 679 bottles were

recovered from the possession of the accused and accused nos.1 to 3 were

fled away from the scene of offence. During the raid as there was night

time and late hours, being a lady the accused was given concession and

liberty given to move at home and instructed to join the investigation next

day. Though four times notice under Section 41A of Cr.P.C. came to be

served, she did not remain present and co-operate with the police

authority. Considering the said aspect that the accused involved in such

illegal activities and fled away and even she did not bother to co-operate

in the investigation. Despite the issuance of notice under Section 41(A),

present application deserves to be dismissed.

7. Further, in view of above that the decision of Hon'ble Apex

Court in the case of Jai Prakash Singh Vs State reported in 2012 (4)

SCC 379, this is not a case wherein applicant falsely enroped in the

offence wherein accused has misused her liberty. Even the decision of

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this Court decided on 07.03.2018 in Criminal Misc. Application No.3122

of 2018 in the case of Jigneshkumar Maheshbhai Patel vs State of

Gujarat, is required to be referred to, wherein this Court has held in

Paras 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 he took into account irrelevant matters or gave insufficient weight, or

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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 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 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."

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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 pre-trial detention. Where overwhelming considerations in the nature aforesaid require denial of bail, it has to be denied"

8. The Gujarat is dry states due to such illegal activity, the

public health is also adversely effected considering all that law is

amended provisions of Punishment also made stringent and the protection

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under Section 438 is required to be extended to law abide citizens. Not

only that while exercising discretionary jurisdiction, the Court has to

struck balance between public interest and individual personal liberty

herein, rather to personal liberty, the public interest is more important

and in guise of such blanket protection that too carry out such illegal

activities cannot be permitted.

8.1 Considering the aforesaid all facts as also the law laid down

by Hon'ble Supreme Court in the case of Jayprakash vs. State of Bihar

reported in (2012) 4 SCC 379, parameters of grant of anticipatory bail in

serious offences are required to be satisfied and further while granting

such relief, the Court must record the reasons thereof. Anticipatory bail

can be granted only in exceptional circumstances where the Court is

prima-facie of the view that the applicant is falsely enroped in the crime

and would not misuse her liberty. Herein, no case is made out as the

applicant is not falsely enroped in the offence. Further, considering the

allegation made in the complaint and aforesaid fact and for the qualitative

investigation, the presence of applicant is required and custodial

interrogation is necessary. Thus, prima facie it appears that accused has

played active role and qualitative investigation is necessary in the matter.

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8.2 When involvement of accused in offences is disclosed and

prima facie it established then, the Court would be loath to lean in favour

of grant of pre-arrest bail in absence of any other overriding

considerations. Arrest is part of the process of investigation and intended

to secure several purposes. In which the accused may provide

information, during the discovery of material facts and to relevant

information. In such circumstances, when investigation is in preliminary

stage if, anticipatory bail is granted may hamper the investigation and to

collect the material in the more information, and find out the

involvements of another person custodial interrogation is also necessary.

9. In the above facts and circumstances of the present case and

considering the observations on the legal aspect of the matter, as

applicant is actively involved in the offence and she has misused the

liberty and concession given to her. This Court having absolutely no

doubt that if applicant is equipped with such an order of anticipatory bail

before she is interrogated by the Police, it would greatly harm the

investigation and would impede the prospects of unearthing all the

ramifications involved in the conspiracy.

10. Having considered nature and seriousness of the charge,

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prima facie involvement of accused and possibility of tempering with

evidences, it does not appear to be just and proper to exercise the

discretion in favour of the applicant and accordingly, the application for

anticipatory bail is dismissed. Rule is hereby discharged.

(HASMUKH D. SUTHAR,J) NABILA