Gujarat High Court

Maheshkumar Subhashchandra Agrawal vs State Of Gujarat on 7 February, 2025

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                             R/CR.MA/2009/2025                                ORDER DATED: 07/02/2025

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                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                       R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 2009
                                                  of 2025
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                                       MAHESHKUMAR SUBHASHCHANDRA AGRAWAL
                                                      Versus
                                                STATE OF GUJARAT
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                       Appearance:
                       MR NK MAJMUDAR(430) for the Applicant(s) No. 1
                       MR KRUTIK PARIKH, APP for the Respondent(s) No. 1
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                            CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                     Date : 07/02/2025

                                                       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 482 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS") / 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 Nizar Police Station, Tapi,

being C.R No.11824007240916 of 2024 for the offences punishable under

Sections 65(a), 65(e), 81, 83, 98(2) and 116-B of the Gujarat Prohibition Act.

3. Learned counsel for the applicant submits that the applicant has

been falsely implicated in the offence. Applicant is having no past

antecedents and he arraigned as an accused on the basis of

apprehension. The offence is registered on his name and prior to two

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months of alleged incident, he has sold out the vehicle and he has relied

on one agreement, which is produced at Annexure-C, wherein, it is

mentioned that present applicant has sold out the vehicle to one

Shyambhai Vasava. He has nothing to do with the offence and no specific

allegations are levelled against the present applicant.

Over and above, the allegations of the prohibition qua

transporting the liquor and allegation of under Section 336(2) of BNS of

forgery is also levelled, but how the forgery is made out and there is no

any registration of the offence of forgery. Learned advocate for the

applicant, on instructions, states that the applicant is ready and willing to

abide by all the conditions.

4. Learned Additional Public Prosecutor appearing on behalf of the

respondent - State has opposed grant of anticipatory bail looking to the

nature and gravity of the offence. It is submitted that present applicant

is involved in the offence and till date, vehicle is on the name of the

present applicant and by hatching conspiracy as a part of the pre-

planned, the document of the sale of the vehicle being used, it is noting

but an eye-wash, not only that the bilty is also forged one, wherein

stated that the tape is going to be transported, but, it appears that the

said invoice and the GST numbers are also forged. During the

investigation, it was found that no such firm is situated, only, the address

was found and even the said firm is not indulged in the production of the

said tape or the said goods and the huge quantity of contraband i.e.

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11016 bottles of IMFL worth Rs. 27,02964/-. The present applicant and

other co-accused in connivance and in collusion with each other

committed an offence. Therefore, custodial interrogation is required.

Other co-accused are yet to be arrested. Even names and the dummy sim

card being used, their contact numbers and other details are yet to be

collected and they have out of reach. The present applicant is equipped

with the anticipatory bail then investigation is at nascent stage and

adversely effect the case of the prosecution, nonetheless, as part of the

pre-conscipiracy, they have loaded the contraband. Thereafter, they have

handed over the vehicle to the one driver being paying Rs.10,000/-

remuneration towards the trip.

5. Having heard the learned advocates for the respective parties, this

Court has considered the rival submissions made by learned counsel for

both the sides and considered the material placed on record. It is well

settled that, among other circumstances, the factors to be borne in mind

while considering an application for bail are (i) whether there is any prima

facie or reasonable ground to believe that the accused had committed the

offence; (ii) nature and gravity of the accusation; (iii) severity of the

punishment in the event of conviction; (iv) danger of the accused

absconding or fleeing, if released on bail; (v) character, behaviour, means,

position and standing of the accused. Though at the stage of granting bail

execution and appreciation of evidence is not permissible. Having gone

through the complaint, prima facie, it appears that the present applicant is

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involved in the offence.

6. At the outset, it is worth to mention that applicant is falsely

implicated in the offence and no offence is made out against the present

applicant and applicant is not entitled for any relief on the ground that the

application being Criminal Misc. Application No. 24196 of 2024 for

quashment of FIR is withdrawn by the applicant vide order dated 12.12.2024

passed by the Co-ordinate Bench of this Court. Hence, question of frivolity

of FIR does not arise.

6.1. Today record shows that applicant is registered owner of the vehicle

and after the alleged sale transactions, he has not got transferred the

vehicle in the RTO office and no any TTO form is signed and form Nos.28

and 29 is not submitted before the authority.

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/them or to tarnish his/their image, the Court

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

extraordinary jurisdiction and absolute right of the accused.

8. Now coming back to the allegations leveled against present

applicant, the offence is registered in connection with the transporting of

contraband in the dry State. I t was very much within the knowledge of the

applicant that Gujarat being a dry state, prohibition is there, however,

they were involved in the illegal activity. On 29.11.2024 in tempo being

Eicher Pro bearing Registration No.GJ-22-U-3327, 404 boxes herein 11016

bottles to the tune of Rs.27,02964/- and prohibited muddamal is found.

Even perusing the record as well as the allegations levelled in the

complaint, if the mobile numbers and name of accused persons are

mentioned and had loaded and driver as well as the supplier and owner

also, the complaint is registered. Only driver of the tempo is

apprehended and other accused are on run. Investigation is at nascent

stage. Considering the huge quantity of contraband IMFL, it clearly

reveals that the boxes and transporting the goods of contraband,

quantity of IMFL 404 boxes preparing the forge bilty with forged GST

numbered and false and fabricating the documents, transported the

contraband, which clearly reveals on the part of the accused persons.

9. In the case of Mohammed Fasrin v. State Rep. By the

Intelligence Officer, rendered in Criminal Misc. Application No.296 of

2014, the Hon'ble Supreme Court observed as under:

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".......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....."

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. In the case of Siddharam Satlingappa Mhetre vs State Of

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

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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, 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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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 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"

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13. It would be apposite to refer the judgment of the Hon'ble Apex

Court rendered in 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."

14. 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 also 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.

15. Considering the question of public health and adverse effect and

impact in the society, in the larger interest of justice, the Court has to

struck down the balance between the personal liberty and larger interest

of the society. In view of above, if the present applicant is/are protected

with this order, this Court is of the considered view that if the present

accused is equipped with protective order, it would obviously affect the

case of the prosecution and adversely the qualitative investigation. This