Gujarat High Court
Nimesh Alias Tino Asharam Gupta vs State Of Gujarat on 25 April, 2025
NEUTRAL CITATION
R/CR.MA/7208/2025 ORDER DATED: 25/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 7208
of 2025
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NIMESH ALIAS TINO ASHARAM GUPTA
Versus
STATE OF GUJARAT
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Appearance:
MR ARJUNSINGH B CHAUHAN(11510) for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 25/04/2025
ORAL ORDER
[1.0] RULE. Learned APP waives service of notice of Rule for and
on behalf of the respondent - State of Gujarat.
[2.0] By way of present application under Section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"), the
applicant-original accused has prayed to release him on
anticipatory bail in the event of his arrest in connection with the
FIR being CR No.11191004250180 of 2025 registered with
Amraiwadi Police Station, District : Ahmedabad for the
offence under Sections 65(A), 65(E), 116-B and 98 of the
Prohibition Act.
[3.0] Today, when the matter is called out, learned advocate for
the applicant remained absent.
[3.1.] Earlier, when matter was listed on 16.04.2025, learned APP
has pointed out that applicant is having past antecedents.
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[4.0] As against this, learned advocate for the applicant has
submitted in the Column No.32, Investigating Officer has not
mentioned the said fact and accused is having no past
antecedents.
[4.1] It was submitted that the applicant has been falsely
implicated in the offence and nothing is recovered from the
present applicant accused. There is no iota of evidence, which
suggests that the applicant is involved in the offence. There is no
any independent witnesses, except the police witnesses stated
about the presence of the present applicant. Further, the
applicant is not having any past antecedent. Now nothing is
required to be recovered and discovered from the accused as
muddamal is already recovered and therefore, 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.
[5.0] Per contra, learned APP has vehemently opposed the
application on the ground that present applicant is named in the
FIR and based on the specific intelligence, the raid was conducted
and wherein accused persons were found with 120 bottles of
IMFL (worth Rs.38,400) and 144 quarter bottles of muddamal
(worth Rs.17,280) in total 264 bottles of muddamal worth
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Rs.55,680/-. When the police reached the at the spot along with
the Panch, at that time, they fled-away from the spot, in this
regard offence is registered. Applicant is having two similar
nature of antecedents. If he released on bail, then possibility
cannot be ruled out to tamper with the evidence. Hence, as the
investigation is at preliminary stage, he has requested to dismiss
the present application.
[6.0] This Court has considered the rival submissions made by
learned advocate for both the sides and considered the material
placed on record.
[7.0] As per the case of the prosecution, during the raid
conducted by the police, the police had recovered 120 bottles of
IMFL worth Rs. 38,400 and 144 quarters of IMFL worth Rs. 17,280,
totaling Rs.55,680, which were kept by the present
applicant/accused and other accused in a public place situated
near Amraiwadi Nagarvel Crossroads inside Mahakali Ni Chaali
without any pass or permit. The present applicant and other
accused could not be arrested at that time, as they managed to
escape from that place. As per the prosecution case, the present
applicant and other accused, with the help of each other,
committed the above offense. The name of the applicant is
mentioned in the F.I.R. At this stage, it appears that the matter is
under investigation. At present, custodial interrogation of the
applicant is deemed to be very necessary for eliciting various
details pertaining to the offense. If the applicant is granted
anticipatory bail, it would hamper the investigation. Given the
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prima facie evidence and the petitioner's criminal history, the
court has deemed it inappropriate to grant bail at this juncture,
emphasizing the need to prevent potential recidivism and to
ensure the integrity of the ongoing investigation. This case
underscores the persistent challenges faced by Gujarat's law
enforcement in curbing liquor smuggling activities, reflecting the
broader issue of illicit liquor trade in the state.
[8.0] It appears that applicant is evading arrest and he is on run.
Hence, in view of the law laid down by the Hon'ble Apex Court in
case of State of Haryana vs. Dharamraj reported in 2023 INSC
784; Lavesh vs. (NCT of Delhi) reported in (2012) 8 SCC 730;
Abhishek vs. State of Maharastra reported in 2022 (8) SCC 282
and Prem Shankar Prasad vs. State of Bihar reported in 2021
SCC OnLine SC 955 and Srikant Upadhyay and Others vs. State
of Bihar and Another reported in 2024 SCC OnLine SC 282 and
Serious Fraud Investigation Office vs. Aditya Sarda reported in
2025 INSC 477, i am of the considered view that this is not a fit
case to exercise the jurisdiction in favour of the applicant.
[9.0] The applicant is named in the FIR and was found at the spot
during the raid with 264 bottles of Indian Made Foreign Liquor
(IMFL) in the presence of panch witnesses, and the panchnama
and other proceedings were duly drawn. The investigation is at a
nascent stage, and the applicant has two prior criminal
antecedents--one registered at Amraiwadi Police Station and
another at Ishanpur Police Station. After registration of the
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present offence, the applicant absconded and failed to join the
investigation, showing non-cooperation. In previous cases where
he was released on bail, he misused the liberty granted to him
and continued engaging in similar illegal activities. There is a
strong possibility that if released on bail, he may tamper with
evidence or flee again. Furthermore, the source from which he
procured the contraband is yet to be investigated. Given that
Gujarat is a dry state where prohibition laws are strictly enforced,
the allegations against the applicant are serious, and his conduct
indicates that he is unlikely to stand trial.
[10.0] The coordinate Bench of this Court in the 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 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
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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 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
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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."
[11.0] 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 remained absconder. In the instant case, role of
the applicant is attributed as a possessor 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, from-where he has received the same and to whom
it was going to supply is required to be investigated. Accused is
named in F.I.R.. Police has received specific intelligence by name
of accused.
[12.0] 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
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facie of the view that the applicant has falsely been
enroped in the crime and would not misuse his liberty."
[12.1] It is appropriate to refer to the judgment of the
Hon'ble Apex Court rendered in the case of Pratibha Manchanda
vs. State of Haryana reported in AIR 2023 SC 3307, wherein the
Hon'ble 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."
[13.0] Insofar as the submission on behalf of the applicant
that in the present case, muddamal is recovered and therefore,
no custodial interrogation is required is concerned, it is worthy to
mention that herein, prima facie case is made out against the
present applicant and there are serious allegations against the
applicant, he has actively participated in the offence. Thus, in
order to reach to a logical conclusion of the investigation, the
Investigating Officer deserves a free hand. There is no rule that if
custodial interrogation is not required then anticipatory bail is
required to be granted. The custodial interrogation is one of the
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good grounds to reject the anticipatory bail application but
merely because custodial interrogation is not required, itself is
not a ground to allow the anticipatory bail application. In this
regard, reference is required to be made to the decision of the
Hon'ble Apex Court in the case of Sumitha Pradeep vs. Arun
Kumar C.K. reported in 2022 SCC OnLine (SC) 1529, wherein it is
observed and held as follows:
"In many anticipatory bail matters, we have noticed
one common argument being canvassed that no
custodial interrogation is required and, therefore,
anticipatory bail may be granted. There appears to be a
serious misconception of law that if no case for
custodial interrogation is made out by the prosecution,
then that alone would be a good ground to grant
anticipatory bail. Custodial interrogation can be one of
the relevant aspects to be considered along with other
grounds while deciding an application seeking
anticipatory bail. There may be many cases in which the
custodial interrogation of the accused may not be
required, but that does not mean that the prima facie
case against the accused should be ignored or
overlooked and he should be granted anticipatory bail."
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.
[14.0] Further, Gujarat is a dry State and pursuant to Article
47 of the Constitution of India, the directive principles of the
State policy, it is the duty of the State to raise the standard of
living and improve the public health and for the said purpose,
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prohibition of such intoxicating drugs being made compulsory in
the Gujarat State. The State is committed to the ideas and
principles of Father of Nation Shri Mahatma Gandhji and State
also firmly intends to eradicate the menace of consuming liquor
or intoxicating drugs to overhaul the law relating to intoxicating
drugs and total prohibition in the State and for that amendments
also being made in the Gujarat Prohibition Act. Considering the
aforesaid fact, prima facie involvement being made out, no case is
made out to grant anticipatory bail to the applicant.
[15.0] For the foregoing reasons and considering the law laid
down in the above cited decisions of this Court as well as the
Hon'ble Apex Court, this Court is of view that it is not a fit case to
exercise the discretion under Section 482 of the BNSS in favour
of the present applicant. Accordingly, present application does
not deserve any consideration and is hereby dismissed. Rule is
discharged.
[16.0] It is made clear that the observations made in the present
order are tentative in nature and the learned trial Court shall
decide the case of the applicant on its own merits without being
influenced by the observations made in the present order.
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
