Gujarat High Court
Budha Ram Vishnoi vs State Of Gujarat on 19 February, 2025
NEUTRAL CITATION
R/CR.MA/25399/2024 ORDER DATED: 19/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO.
25399 of 2024
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BUDHA RAM VISHNOI
Versus
STATE OF GUJARAT
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Appearance:
MR SALIM M SAIYED(5172) 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 : 19/02/2025
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.11821025230036 of 2023 registered with Katwara Police Station,
District Dahod for the offence under Sections 65(a), 65(e), 81, 83,
98(2) and 116-B of the Prohibition Act and sections 465 and 471 of the
Indian Penal Code, 1860 (for short "IPC").
[3.0] Learned advocate for the applicant submits that the applicant
has been falsely roped in the offence and nothing is recovered from
the present applicant accused. The applicant is not named in the FIR
and he has been implicated only on the basis of the statement of co-
accused. Further, the applicant is not having any past antecedent. He
further submitted that the applicant has not forged any document
and/or builty and therefore, nature of allegations are such for which
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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.
[4.0] Per contra, learned APP has vehemently opposed the
application on the ground that prohibited liquor in huge quantity i.e.
11508 bottles of country made foreign liquor worth Rs.47,48,760/- has
been recovered and seized from the vehicle while transporting the
same by hiding below bags of Calcium Carbonate and its driver
Mohanlal Dhimaram Bishnoi has been arrested with the liquor.
Further, the police ha seized false bill from the said truck as such the
accused was holding bill of 1003 bags of calcium carbonate though
carrying 65 bags. Further, the applicant is the person who had ordered
the prohibited liquor and was to be delivered as per the instruction of
the applicant. Further, the applicant is involved in anti-social offence
and though searched by the police, applicant is not found at his house
and therefore, if the applicant is granted anticipatory bail then the
possibility of not stand to trial cannot be ruled out as the applicant is
resident of Rajasthan. Hence, as the investigation is at preliminary
stage, he has requested to dismiss the present application.
[5.0] This Court has considered the rival submissions made by learned
advocate for both the sides and considered the material placed on
record.
[6.0] Prima facie, going through the record it appears that the vehicle
was driven by accused No.1 wherein 11508 bottles of country made
foreign liquor in 959 boxes worth Rs.47,48,760/- were seized by the
police and false bills of 1003 bags of white powder i.e. calcium
carbonate below which was contraband liquor was enshrouded and
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false builty came to be prepared and said muddamal was transported
and intruded in the State. Therefore, sections 465 and 471 of the IPC
came to be invoked and thus, the applicant is also facing charges
under Sections 465 and 471 of the IPC. Going through the
investigation papers, prima facie, it appears that the allegation against
the present applicant is that he ordered such prohibited muddamal
and Gujarat is a dry State and law of prohibition does exist.
[6.1] Further, the applicant's name is mentioned in the FIR as accused
No.2 and his specific role and involvement is spells out from the FIR
and in further investigation, his further role is revealed and material is
collected during the custodial interrogation of accused No.1 who was
arrested on the spot. Further, the offence is registered in the year
2023 but till date the applicant is out of reach and he is not found
even at his house and is evading his arrest. Further, the applicant is
having three different names also. He is from Rajasthan but operating
network, from Amritsar he loaded contraband liquor and was going to
deliver at Porbandar in Gujarat State. Yet the supplied and receiver of
the contraband liquor are to be investigated.
[7.0] So far as the submission on behalf of the applicant that only on
the basis of statement of co-accused, present applicant is implicated
in the present offence is concerned, it is needless to say that at the
time of investigation, statement of co-accused 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 accused. In 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 Rashid
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Shaikh vs. 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..."
[7.1] Further, in the case of Mohammed Fasrin vs. State Rep. By the
Intelligence Officer rendered in Criminal Misc. 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....."
In view of the above, during the investigation, statement of co-
accused provides a clue for investigation and to unearth the truth,
statement of co-accused is required. Even considering the fact that as
the applicant is involved such illegal activities in past also, though he
has been given the benefit of doubt due to lack of evidence in two
criminal cases lodged against the applicant, he has not been honorably
acquitted. Even thereafter, the present applicant has involved himself
in the present offence again.
[7.2] The coordinate Bench of this Court in the case of Jigneshkumar
Maheshbhai Patel vs. State of Gujarat 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
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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 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
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overwhelming considerations in the nature aforesaid require denial of bail, it
has to be denied."
[7.3] 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 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.
[8.0] In aforesaid backdrop, custodial interrogation is necessary.
When serious offences are disclosed and involvement of an accused
prima facie established then, the Court would be loath to lean in
favour of grant of pre-arrest bail in absence of any other overriding
considerations. The alleged offence is in nature of white collar and
socioeconomic offence, this Court is conscious with the safeguards
provided under Section 482 of the BNSS (section 438 of the CrPC) and
concept of the personal liberty. But herein, I am of the considered of
view that, the present offence is not just an offence against any
individual rather the largest societal interest and public welfare is
involved in and in such circumstances, the delicate balance is required
to be maintained between two rights one against the personal liberty
and second is societal interest. Arrest is part of the process of
investigation and intended to secure several purposes. In which the
accused may provide information, during the the discovery of material
facts and to relevant information.
[8.1] 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
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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."
[8.2] 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."
[8.3] 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 that he was to
receive the liquor from the accused persons and he was in active
contact with other accused and 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
good grounds to reject the anticipatory bail application but merely
because custodial interrogation is not required, itself is not a ground
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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.
[9.0] 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, 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
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out, no case is made out to grant anticipatory bail to the applicant.
[10.0] 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.
[11.0] 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.)
Ajay
