Gujarat High Court
Truptiben D/O Bhikhabhai Panchal vs State Of Gujarat on 16 April, 2024
NEUTRAL CITATION
R/CR.MA/20655/2023 ORDER DATED: 16/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 20655
of 2023
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TRUPTIBEN D/O BHIKHABHAI PANCHAL
Versus
STATE OF GUJARAT
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Appearance:
MR.ALOK M THAKKAR(6510) for the petitioner(s) No. 1
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 16/04/2024
ORAL ORDER
1. By way of the present petition under Section 438 of the
Code of Criminal Procedure, 1973, the petitioner has prayed to
release him on anticipatory bail in case of her arrest in
connection with the FIR registered as C.R.No.11208055230203
registered with Rajkot DCB Police Station.
2. Brief facts of the case are as under:-
2.1 The impugned FIR is filed by one Shri A.N.Parmar, PSI,
with D.C.B Police Station, Rajkot city, Dist- Rajkot, wherein it is
alleged that on receipt of some secret information, about two
trucks bearing registration numbers GJ-03-AV-7776 and GJ-03-
BY-9942 being parked at the parking lot near the Rajkot City
Nagrik Bank Limited, Rajkot and another three trucks bearing
registration number GJ-03-BT-2230, GJ-03-AT-0720 and GJ-
16-W- 8378 being parked at the parking lot at the Madhav
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Parking near HUDCO chowkdi, Rajkot City, and all these five
trucks were loaded with boxes of some Ayurvedic Herbal Bottles.
2.3 Upon receiving such information, the First Informant
along-with other police personnel and two panch witnesses,
visited the first parking area near the Rajkot City Nagrik Bank
Limited and upon initial inquiry about the drivers and the loads
in the truck, as there were many other heavy vehicles parked,
the first informant and other police personnels could not check
with the contents of the load, those two trucks were moved from
the particular area and were driven to the parking lot at Madhav
Parking, near HUDCO chowkdi, where three other trucks were
parked. Thereafter, upon investigation of these trucks, bottles
containing ayurvedic syrups were found and upon inquiry no
satisfactory answers were given by the truck drivers about the
bills and/or any other licenses with regards to the said ayurvedic
syrups.
2.4 Further, a person namely Jayraj Amarshibhai Kheradiya,
who was standing near the trucks informed the police personnel
that the drivers had picked-up the cartoons of the bottles on his
instruction from a godown at Shapar-Veraval, and upon inquiry
the said goods of the ayurvedic syrup was asked to be picked up
from the said godown of one Rupeshbhai Dodiya, who had not
given any kind of bill to either the truck drivers or to Jayraj, and
as there was no satisfactory answer received, all these trucks
were brought to the D.C.B Police Station at Rajkot, and
accordingly the boxes the taken down for calculation.
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2.5 Upon checking of the boxes various different syrups were
found with labelling of manufacturing by Shree Ayurvedic Health
Care Vadodara, with various details about the content and
license number etc.. As a part of investigation, samples were
sent to FSL for the content checking of the said syrups and
accordingly on 18.07.2023 report as to the same was received
and in the interregnum period the present petitioner was called
upon by the DCв Police Station to give statement in the capacity
as the manager of the Shree Ayurvedic Healthcare, and on
14.07.2023, the present petitioner had appeared before the
investigating officer, and it was categorically submitted before
the I.O that the said boxes which were confiscated were never
manufactured by Shree Ayurvedic Healthcare, as due to an FIR
in past on the Proprietor of Shree Ayurvedic Heathcare namely,
Shri Nitin alias Vicky Ajitbhai Kotwani, the GA / 2001 licensed
stood cancelled in 2021, and also after the passage of PASA
order against him on 14/12 / 2021 and since than the
production was not done by Shree Ayurvedic Healthcare,
Vadodara. Thus, the product seized and the labels sticked on the
bottles confiscated were bogus and did not belong to them.
2.6 After the through and detailed investigation, the impugned
FIR is filed against 6 persons specifically named in the same,
and despite of the detailed reply given by the petitioner who is
manager of the Shree Ayurvedic Healthcare, whom the
prosecution alleges as the manufacturers of the purported syrup
at the factory land leased out to one Nitin Kotwani who is the
proprietor of Shree Ayurvedic Healthcare, is shown as an
accused and petitioner is manager of the said firm and she is
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apprehending her arrest in connection with the impugned FIR.
3. Heard learned advocate Mr. Alok Thakkar for the petitioner
and learned APP.
4. Learned advocate for the petitioner would submit that
petitioner above named is the permanent resident of the address
mentioned in the cause title and has no nexus whatsoever with
regards to the allegations levelled in the impugned FIR. He
would further submit that the petitioner is innocent and has no
nexus whatsoever with the persons named in the impugned FIR
as well as any person or employee of the Shree Ayurvedic
Healthcare. He would further submit that the petitioner as
manager of the firm namely, Shree Ayurvedic Healthcare, was
summoned and who had accordingly appeared before the
investigating officer and the same can be ascertained from the
impugned FIR itself that no offence whatsoever can be made out
against the present petitioner. He would further submit that
whole lot of the purported Syrup had not been proven to be
manufactured by the Shree Ayurvedic Healthcare. He would
further submit that even if for the sake of argument, the FIR is
believed to be true than also no offence as alleged can be made
out against the present petitioner. He would further submit that
the petitioner is not named in the FIR. He would further submit
that since the offence is registered under the Prohibition Act, it is
only manufacturer of the purported Ayurvedic syrup containing
ethanol more than the permissible limits. Learned advocate for
the petitioner referred and relied upon the judgment of this
Court in case of Chandubyhai Patel Vs. State of Gujarat reported
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in 2022 LawSuit (Guj) 6648 to support and buttress his
contention. In addition to above, learned advocate for the
petitioner would submit that the petitioner is permanent
residents of Vadodara and is having deep root in the society and
has no criminal antecedent and therefore, the petitioner is
entitled to get the anticipatory bail as there is no flight risk.
5. Upon such submission, learned advocate for the petitioner
submits to allow this petition.
6. On the other hand, learned APP after referring to report
filed by the investigating officer would submit that the present
petitioner is a kingpin. The owner of Shree Ayurvedic Health
Care Mr. Nitin Kotwani was behind the bar. He would further
submit that even the license of Shree Ayurvedic Health Care to
manufacture ayurvedic drug was also cancelled. He would
further submit that thereafter, the petitioner took over the
charge and taking stalk of the situation apart from managing the
affairs of Shree Ayurvedic Health Care and handled another
company namely Alia Plastochem, which was purchasing plastic
bottles, which is to be used for the purpose of filling purported
Ayurvedic syrup containing ethanol, said company is owned by
the present petitioner. He would further submit that during the
investigation, the investigating officer has taken the statement of
more than one people, who are connected with supplying the
plastic bottles, cap to be used on the face of bottle so also the
person, who is supplying sweater flavour to be added in ethanol
to give colour of ayurvedic syrup so also Angadiya person, who is
delivering the money. All of them have stated that they were
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come in contact with the present petitioner for the purpose of
supplying all these aspects, which are used for the purpose of
purported Ayurvedic syrup containing ethanol. He would further
submit that therefore, considering the role played by the
petitioner, present petition may be dismissed.
7. Having heard learned advocates for the parties, at the
outset, it is to be noted that five persons have been found dead
after drinking purported Ayurvedic syrup containing ethanol. A
huge strategy took place and FIR of which being C.R.
No.1120404511204045230661 is registered with Nadiad Rural
Police Station. Apart from the above, what appears from the
record that owner of Shree Ayurvedic Health Care Mr. Nitin
Kotwani was behind the bar and even the license of Shree
Ayurvedic Health Care to manufacture ayurvedic drug was also
cancelled and yet Shree Ayurvedic Health Care was
manufacturing purported Ayurvedic syrup containing ethanol
more than the permissible limits. Present petitioner was
undoubtedly was manager of Shree Ayurvedic Health Care and
since the owner is behind bar, the petitioner was carrying out
illegal activity of manufacturing the purported Ayurvedic syrup
containing ethanol more than the permissible limits and selling
the same. The investigation so far carried out reveals that the
present petitioner is the main and kingpin in manufacturing and
selling the purported Ayurvedic syrup containing ethanol more
than the permissible limits, she has also ordered empty bottles
so also cap to close the bottles, stickers, sweetener flavour etc to
prepare purported Ayurvedic syrup containing ethanol more
than the permissible limits. The petitioner is also involved in the
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financial transactions pertaining to selling of the purported
Ayurvedic syrup containing ethanol more than the permissible
limits. So, the petitioner is the mastermind behind the
commission of the offence. What further appears that the
petitioner has ordered 8000 ltr Apsol from A.K. Industries,
which can be used for manufacturing of purported Ayurvedic
syrup containing ethanol.
8. Ordinarily, arrest is a part of the procedure of the
investigation to secure not only the presence of the accused, but
several other purposes. Power u/s 438 of the Code is an
extraordinary power and the same has to be exercise sparingly in
appropriate and fit case. This privilege should be extended only
in exceptional cases. It is a judicial discretion conferred upon the
court, and it is to be properly exercised after application of mind
as to the nature and gravity of the accusation, possibility of the
applicant fleeing from justice and other factors to decide whether
it is a fit case for grant of anticipatory bail.
9. Keeping in mind the law laid down by the Hon'ble Supreme
Court in the case of (i) State Rep. by the CBI V/s Anil Sharma
reported in 1997 (7) SCC 187, (ii) Adri Dharan Das V/s State of
W.B. reported in 2005 (4) SCC 303 (iii) P. Chidambaram V/s
Directorate of Enforcement reported in AIR 2019 SC 4198,
wherein the Hon'ble Supreme Court has held held as follows:
"The legislative intent behind the introduction of
Section 438 CrPC is to safeguard the individual's
personal liberty and to protect him from the
possibility of being humiliated and from being
subjected to unnecessary police custody. However,
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the court must also keep in view that a criminal
offence is not just an offence against an individual
rather the larger societal interest is at stake.
Therefore, a delicate balance is required to be
established between the two rights - safeguarding
the personal liberty of an individual and the societal
interest.
Ordinarily, arrest is a part of procedure of the
investigation to secure not only the presence of the
accused but several other purposes. There may be
circumstances in which the accused may provide
information leading to discovery of material facts
and relevant information. Grant of anticipatory bail
may hamper the investigation. It may frustrate the
investigating agency in interrogating the accused
and in collecting the useful information and also
materials which might have been concealed.
Success in such interrogation would elude if the
accused knows that he is protected by the order of
the court. Grant of anticipatory bail, particularly in
economic offences would definitely hamper the
effective investigation. Pre-arrest bail is to strike a
balance between the individual's right to personal
freedom and the right of the investigating agency to
interrogate the accused as to the material so far
collected and to collect more information which may
lead to recovery of relevant information. In this
view, it cannot be said that refusal to grant
anticipatory bail would amount to denial of the
rights conferred upon the appellant/applicant
under Article 21 of the Constitution of India.
Consequently, power under Section 438 CrPC being
an extraordinary remedy, has to be exercised
sparingly; more so, in cases of economic offences.
Economic offences stand as a different class as they
affect the economic fabric of the society. The
privilege of the pre-arrest bail should be granted
only in exceptional cases. The judicial discretion
conferred upon the court has to be properly
exercised after application of mind as to the nature
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and gravity of the accusation; possibility of the
applicant fleeing justice and other factors to decide
whether it is a fit case for grant of anticipatory bail.
Grant of anticipatory bail to some extent interferes
in the sphere of investigation of an offence and
hence, the court must be circumspect while
exercising such power for grant of anticipatory bail.
Section 438 CrPC is to be invoked only in
exceptional cases where the case alleged is frivolous
or groundless. Anticipatory bail is to be granted as a
matter of rule and it has to be granted only when
the court is convinced that exceptional
circumstances exist to resort to that extraordinary
remedy".
Having regard to nature of allegations and stage of
investigations, held investigating agency must be
given sufficient freedom in process of investigation.
Appellant not entitled to anticipatory bail as the
same would hamper the investigation".
In view of above, facts the judgment relied upon by the
learned advocate for the petitioner would not render any help to
the petitioner.
10. Under the circumstances, present petition fails and stands
dismissed.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
