Madhya Pradesh High Court
Ballan @ Umeshdatt Tiwari vs The State Of Madhya Pradesh on 22 November, 2021
Author: Rajendra Kumar Srivastava
1 MCRC-50845-2021
The High Court Of Madhya Pradesh
MCRC No. 50845 of 2021
(BALLAN @ UMESHDATT TIWARI Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 22-11-2021
Shri Atul Kumar Jain, learned counsel for the applicant.
Shri Satpal Chadar, learned G.A. for the respondent-State.
This is first application filed by the applicant under Section 438 of
Cr.P.C. for grant of anticipatory bail.
The applicant is apprehending his arrest in connection with Crime
No. 430/2021, registered at Police Station-Sleemnabad, District-Katni
(M.P.) for the offence punishable under Section 34(2) of M.P. Excise
Act, 1915 r/w Section 109 of IPC.
As per prosecution case, on 24.07.2021, Sub-Divisional Officer,
Police Sleemnabad received an information that some persons are
transporting liquor without valid permit. Police official reached on the
spot. They stopped Maruti Van. Driver of vehicle ran away from the
spot. Co-accused Arun Jaiswal caught red-handed on the spot. Vehicle
w as searched and 146 bulk liters of foreign liquor and country made
liquor was seized. His statement was recorded by the Investigating
Officer, then he disclosed that liquor was provided by the co-accused
Manoj Singh & Rohit Kumar Gupta and these two co-accused disclosed
the fact that they have kept the aforesaid liquor in the alleged van under
the instruction of the present applicant.
Learned counsel for the applicant submits that the applicant has
been falsely implicated in this case. It is further submitted that applicant
has been made an accused in this case only on the basis of memorandum
statement of the co-accused. So, no case under Section 34(2) of M.P.
Excise Act r/w Section 109 of IPC is made out against the present
applicant. Although, some cases are registered against the present
applicant but most of the cases, he has been acquitted by the trial Court
2 MCRC-50845-2021
and in this regard, he has also filed some judgments passed by the
learned trial Court. He further submits that in other identical cases,
present applicant has falsely been made as an accused on the basis of
memorandum statement of co-accused persons. So, it is clear that present
applicant has not been previously convicted. There is no chance of his
absconding and tampering with the evidence of prosecution. Trial will
take sufficient time in its conclusion. The matter is triable by Judicial
Magistrate First Class. Other co-accused persons have already been
released on bail by this Court. With the aforesaid, he prays for allowing
this bail application.
Per-contra, learned G.A. for respondent/State opposes the bail
application submitting that applicant has a long list of identical cases and
other cases too. Under M.P. Excise Act, there is bar of Section 59-A in
grant of anticipatory bail. If applicant get anticipatory bail then it will
adversely affect the investigation. Therefore, anticipatory bail should not
be granted to applicant.
Heard the arguments of both the parties and perused the case diary.
Learned counsel for the respondent/State raised the arguments
regarding entertainability of this anticipatory bail application in view of
the Section 59(A) of M.P. Excise Act. Under said provision, there is
specific bar to grant anticipatory bail to the accused. In this regard, in the
case of Naresh Kumar Lahriya Vs. State of M.P. reported in 2004(4)
M.P.H.T. 205, the Court has held as under:-
"it would be open to a accused to show that no offence
inviting frown of Section 59-A (i) of the Act is made out as
the basic ingredients are absent. It needs no emphasis that it
would be dependent of the fact of each case. We may hasten
to state here that merely because Section 438 is not
applicable to certain categories of offences, the Court is not
3 MCRC-50845-2021
bereft of power only because in the FIR the said offences are
mentioned. It can not be stated with certitude that if the
accused can put forth a case or make out of a case, though
the offences which have been mentioned under Section 59-A
(i) of the Act do find mention in the FIR, but essentially and
factually the case docs not fall under the said provision,
irrefragably the Court can entertain the application for
grant of anticipatory bail because it is not the nomenclature
which should govern the scenario but the real essence. We
may repeat at the cost of repetition that our observations do
not clothe the Court with the power to grant anticipatory
bail under Section of the Code and transgress the enacted
provision inasmuch as we have held it to be intra vires but
we only say that if the accused can, by clarificatory means
with substantial material put forth and bring it to the notice
of the Court that the offences which are encapsuled under
Section 59-A (i) of the Act are really not in respect of which
the accused has been roped in and sought to be arrested are
actually not within its ambit or sweep and not covered by it
then the eclipse created by the provision gets lifted and the
accused can seek the ambit of umbrellas of Section 438 of the
Code."
Therefore, it is manifest that if prima facie no case is made out
under provision of M.P, Excise Act, 1915, the Court can entertain the
application for grant of anticipatory bail.
On perusal of case diary, considering the contention of counsel for
both the parties, keeping in view the law laid down in the above cited
case, looking to the circumstances of the case and the facts that applicant
4 MCRC-50845-2021
is made an accused on the basis of memorandum statement of co-accused,
no liquor has been seized from the possession of present applicant,
although some cases are pending against the present applicant but in
identical cases, he has been impleaded as an accused on the basis of
memorandum statement of co-accused and other cases he has been
acquitted by the trial Court, applicant has not been previously convicted,
so there is no probability to repeat the offence by him, other co-accused
persons have already been released on bail by this Court, no other
material evidence is available on the record against the applicant, so it
cannot be said that there is a reasonable ground to hold that applicant has
committed the offence under Section 34(2) of M.P. Excise Act, the
matter is triable by JMFC, there is no chance of applicant's absconding
and tampering with the prosecution evidence, apart from this, trial will
take sufficient times in its conclusion but without expressing any opinion
on merits of the case, this first application for anticipatory bail filed on
behalf of applicant is hereby allowed.
It is directed that the applicant-Ballan @ Umeshdatt Tiwari, will
surrender himself before Investigating Officer of the concerned police
station, within ten days' from the date of receipt of certified copy of this
order and then in the event of his arrest, he be released on his furnishing
a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand
Only) with one surety in the like amount to the satisfaction of the
Arresting Authority.
It is further directed that the applicant shall make himself available
fo r interrogation before the Police Officer as and when required. He
shall further abide by the other conditions enumerated in sub-Section (2)
of Section 438 of Cr.P.C.
C.c as per rules.
5 MCRC-50845-2021
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
sp
Digitally signed by SAVITRI
PATEL
Date: 2021.11.24 17:39:52
+05'30'
