Mevabhai Becharabhai Rabari vs State Of Gujarat
2023 Latest Caselaw 6481 Guj

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      R/CR.MA/7851/2022                                        ORDER DATED: 05/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 7851 of 2022

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                           MEVABHAI BECHARABHAI RABARI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR. NISARG D SHAH(7299) for the Applicant(s) No. 1
SUNIL H PRAJAPATI(8350) 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 : 05/09/2023

                                     ORAL ORDER

1. 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 Tharad Police Station, Banaskantha vide CR

No.11195050211311 of 2021, for the offences punishable under

Sections 65(a), 65(e), 116-B, 99, 81 and 98(2) of the Gujarat

Prohibition Act.

2. Learned counsel for the applicant submits that the

present applicant has nothing to do with the crime and is

innocent and has been falsely implicated in the crime. It is

submitted that the liquor was found in the land of the

present applicant and applicant was initially protected by this

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Court. It is submitted that he has joined the investigation

and now, nothing is remained recovered and discovered from

the present applicant. Therefore, he submits that the

application may be allowed.

4. Per contra, learned APP has vehemently opposed the

application and submitted that the present applicant is

involved in the offence and he is involved in such illegal

activity since long having 9 past incidents also. It is further

submitted that merely to join the investigation is not a

ground to allow the application as custodial interrogation is

required since last one he has prolonged the matter and

avoided custodial interrogation, he is named in FIR. It is

submitted that applicant has given statement but yet offence

is required to be further investigated. Hence, custodial

interrogation of the applicant is required. 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,

prima facie, it appears that the offence is registered in the

year 2021 and present applicant is named in the FIR and

applicant is having past 9 criminal antecedents, he has

misused his liberty and remained involved in such illegal

activity. In the Gujarat State prohibition prevails from out-

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State such liquor being imported and distributed in the

various parts. Considering the fact that merely his statement

is recorded by the Investigating Officer, is not a ground and

yet investigation is required to be further carried out and the

role attributed to the present applicant is that, in collusion

and in connivance of the other co-accused persons, he

involved in such illegal other activities and in this offence,

576 bottles of liquor was found

5.1. This Court has taken note of the similar type of the

offence, which is noticed from the particular District and with

the connivance of the authorities and due to his

uninterrupted illegal activities continued by the applicant as

9 offences are registered, the Police authorities wool-over the

eyes. This Court cannot pull high influence.

5.2. This Court is of the considered opinion that the

applicant is an offender and a qualitative and meticulous

investigation is imperative, in such case, considering the fact

that the public interest & public health at risk and being

adversely affected by such illegal activity. In this context, the

importance of public interest outweighs than other

considerations against personal liberty, which underlines the

need for a rigorous investigation. Therefore, the custodial

interrogation of the applicant is required.

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7. In view of decision of Hon'ble Apex Court in the case

of Jai Prakash Singh Vs State reported in 2012 (4) SCC 379,

wherein the Court held that Parameters for grant of

anticipatory bail in a serious offence are 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 in

prima facie, of the view that the applicant has falsely been

enroped in the crime and would not misuse his liberty.

7.1. The decision of 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, 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 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.

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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."

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. In the case of Siddharam Satlingappa Mhetre vs State

Of Maharashtra, reported in (2011) 1 SCC 694, the Hon'ble

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Court held that life and personal liberty are the most prized

possessions of an individual but not at the cost of larger

interest of society and public. This is not a case, wherein

accused is falsely enraged in the offence with a view to

tarnish his image. Considering the fact that the custodial

interrogation is required.

8.1. In the case of on hand, the accused has misused his

liberty and he involved in a similar type of offences and

illegal activities in the connivance of authorities. As a fan-

sitter, he observed the proceedings going on qua other

accused in the guise of the present litigation. He able to

prolong the proceedings and as a fan-sitter he is waiting out-

come of the proceedings qua other accused. It is needless to

say that the Hon'ble Apex Court has been pleased to state in

the case of Arnab Manoranjan Goswami vs. State of

Maharashtra reported in 2021 CRLJ 517. The Court must be

alive to the public interest ensuring that due enforcement of

criminal law is not obstructed and the fair investigation of

crime is an aid to it, herein no case, accused is falsely

enroped in the offence and 9 offences of similar type has

been registered against the accused and custodial

interrogation is also required in the case on hand. In this

regard reference is required to be made in the case of

Pratibha Manchanda vs. State of Haryana reported in AIR

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2023 SC 3307, wherein para 19 read as under :

"19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice.

The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."

8.2. This Court is of the considered view that if the present

accused is acquit with protective order, obviously adversely

affect the case of the prosecution and qualitative

investigation.

9. In view of the above, this Court is not inclined to

entertain the present application. Hence, the application

stands dismissed. Rule discharged. Interim relief, granted

earlier, stands vacated.

Let copy of this order be sent to S.P. Banaskantha and

I.G. concern.

(HASMUKH D. SUTHAR,J) KUMAR ALOK