Gujarat High Court

Harpalbhai Somlabhai Dhadhal vs The State Of Gujarat on 21 September, 2023

Bench: Hasmukh D. Suthar

                                                                                       NEUTRAL CITATION




     R/CR.MA/16841/2023                                   ORDER DATED: 21/09/2023

                                                                                        undefined




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/CRIMINAL MISC.APPLICATION NO. 16841 of 2023
=======================================
              HARPALBHAI SOMLABHAI DHADHAL
                            Versus
                    THE STATE OF GUJARAT
=======================================
Appearance:
MR PAWAN A BAROT(6455) for the Applicant(s) No. 1
MS SWETA P BAROT(10181) for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
=======================================
 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 21/09/2023

                              ORAL ORDER

1. Rule returnable forthwith. Learned APP waives service 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 Amreli Rural

Police Station, Dist. Amreli, being C.R

No.11193004230352 of 2023 for the offences punishable

under Section 279 of Indian Penal Code, 1860, Section 184 of the

Motor Vehicles Act and Sections 65(A), 65(E), 81, 83, 98(2) and

116-B of the Gujarat Prohibition Act.

NEUTRAL CITATION

R/CR.MA/16841/2023 ORDER DATED: 21/09/2023

undefined

3. Learned counsel for the applicant submits that the

applicant has been falsely roped in the offence. Nothing is

recovered from the accused. The allegation levelled against the

applicant is only his involvement in the alleged offence.

Recovered muddamal is valued at Rs.46,000/-. There is no

criminal past antecedent of the applicant. He further submitted

that merely based on the statement of the co-accused, the

applicant has been falsely implicated in the offence. Co-accused

are also granted bail by the Sessions Court concerned. Mr. Barot

has relied upon the decision of this Court rendered in Solanki

Ravibhai Dipubhai & Ors. Vs. State of Gujarat & Anr. reported in

1992 (1) GLR 631 and stated that when the case is made out for

bail, the Hon'ble Court has to exercise discretion in favour of the

accused. He further submitted that the nature of allegations are

such for which custodial interrogation at this stage is not necessary.

Besides, the applicant is available during the course of investigation

and will not flee from justice. In view of the above, the applicant

may be granted anticipatory bail.

4. Per contra, learned APP has vehemently opposed the

application and submitted that the present applicant is involved

in the offence. The applicant is having past criminal antecedent

and remained absconder for longer time. Earlier also, one case

NEUTRAL CITATION

R/CR.MA/16841/2023 ORDER DATED: 21/09/2023

undefined

was registered against him as prohibited contraband substance

was recovered from the applicant. Here in the present case, the

applicant was supplier and had to supply the contraband liquor

by providing Innova car, which was in his possession. Considering

his previous involvement in similar type of 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. This Court has considered the rival submissions made by

learned counsel for both the sides and considered the material

placed on record.

6. The facts of the prosecution case are that, on 30.06.2023,

when police personnel of Amreli Rural Police Station were on

patrolling, at that time they received a secret information and

therefore, they kept watch at Chital O.P area. At that time, one

white colour Innova car bearing Registration No. GJ-19-AF-4233

came from Babra in suspicious condition, therefore, the police

tried to stop them, but they did not stop and while escaping from

NEUTRAL CITATION

R/CR.MA/16841/2023 ORDER DATED: 21/09/2023

undefined

there, dashed with one temple pillar, in which, accused Nos.1 and

2 were present. Upon inquiry, Indian made foreign liquor worth of

Rs.46,112/- was found from the car without having valid pass and

permit. It is further case that, upon further inquiry, they had

disclosed that the said contraband liquor was to be supplied to

the accused Nos.3, 4 (present applicant) and 5. Therefore, FIR

came to be lodged against the accused.

7. The criteria to grant anticipatory bail and regular bail has

been laid down by the Apex Court in various decisions. While

criminal administration of justice disturbed, arrest is a part of

investigation. After the arrest of the accused when substantial

part of the investigation including remand gets over, then the

Court has to exercise jurisdiction considering the evidence

collected during investigation. It is needless to say that Section

438 of the Code is pre-arrest bail as there is a part of

investigation and importance of the arrest is time and again

discussed by the Hon'ble Apex Court. When the involvement of

the accused is prima facie revealed and if allegation is not

levelled that to defame him or to tarnish his image, the Court has

to exercise jurisdiction, but to seek anticipatory bail is not an

extraordinary jurisdiction and absolute right of the accused.

NEUTRAL CITATION

R/CR.MA/16841/2023 ORDER DATED: 21/09/2023

undefined

8. Keeping in mind the aforesaid fact as well as the judgments

relied upon by learned counsel for the applicant in the decision of

this Court reported in 1992 (1) GLR 631 would not helpful to the

case of the applicant. However, it is to be noted that while

deciding the bail application, the Court should not blindly rely

upon the precedent as held by the Apex Court in the case of

Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu

Yadav, reported in (2004 (7) SCC 528, as each case should

be decided on its own merits and the Court has to consider the

facts of each case and in the instant case, prima facie

involvement of the accused is found.

9. Now coming back to the facts of the present case and

looking to the material placed on record, it clearly transpires that

the applicant has criminal antecedent and remained absconder.

Even otherwise, considering the facts and role of the applicant,

no case is made out to extend the benefit of parity also and

hence, question of parity does not arise. The applicant is also

involved in similar type of offence earlier and in the instant case,

role of the applicant is attributed as a receiver of the liquor and it

was very much within the knowledge of the applicant that Gujarat

being a dry state, prohibition is there, however, he ordered the

contraband.

NEUTRAL CITATION

R/CR.MA/16841/2023 ORDER DATED: 21/09/2023

undefined

10. In this background facts, this Court prima facie is of

considered view that, there is a reasonable ground to believe that

the applicant has committed the alleged offence. Considering the

facts of the present case, it cannot be said that the applicant

herein has been falsely implicated in the alleged offence. If the

anticipatory bail as sought for is granted, then it will affect the

investigation of the case. Therefore, custodial interrogation of the

applicant is required.

11. The Hon'ble Apex Court in the case of Jai Prakash Singh

Vs State of Bihar & Anr. reported in 2012 4 SCC 379, has

been pleased to hold as under:-

"Parameters for grant of anticipatory bail in a serious offences 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 is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."

12. The coordinate Bench of this Court in a case of

Jigneshkumar Maheshbhai Patel vs State of Gujarat,

(Criminal Misc. Application No.3122 of 2018) has observed as

under :

"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

NEUTRAL CITATION

R/CR.MA/16841/2023 ORDER DATED: 21/09/2023

undefined

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.

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 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

NEUTRAL CITATION

R/CR.MA/16841/2023 ORDER DATED: 21/09/2023

undefined

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

13. In so far the statement of co-accused is concerned,it provides

clues to the investigating agency as to how to investigate the

case and thereafter the investigating officer has to collect

evidence against the person who has been named as the

accused. In the light of the above provisions, there is no bar on

considering the statement of co-accused for investigation

purposes. At this stage, it is relevant to note that this Court has

observed in the case of Mohmed Salim abdul Rasid Shaikh v.

State of Gujarat, reported in 2001(2) GLR 1580, in para 12, as

under:

"...It is pertinent to note that the prosecution case rests mainly on circumstantial evidence and police has received a clue against the present applicant from the statement of co-accused, already arrested. Irrespective of the fact that statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation..."

14. Further, in the case of Mohammed Fasrin v. State Rep.

By the Intelligence Officer, rendered in Criminal Misc.

NEUTRAL CITATION

R/CR.MA/16841/2023 ORDER DATED: 21/09/2023

undefined

Application No.296 of 2014, the Hon'ble Supreme Court observed

as under:

".......The confessions of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co-accused....."

15. It is appropriate to refer to the judgment of the Apex Court

rendered in case of Pratibha Manchand Vs. State of

Haryana, reported in AIR 2023 SC 3307, wherein the Apex

Court has observed thus:-

"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."

In view of the above decision and in view of the facts and

circumstances of this case, custodial interrogation of not only the

applicant, but all other suspect/s is therefore imperative to

unearth the truth. Hence, this is a not a fit case to exercise the

jurisdiction in favour of the applicant.

16. For the foregoing reasons and considering the law laid

down in the above cited decisions of this Court as well as the

NEUTRAL CITATION

R/CR.MA/16841/2023 ORDER DATED: 21/09/2023

undefined

Hon'ble Apex Court, this Court is of view that it is not a fit case to

exercise the discretion under Section 438 of the Code in favour of