Madhya Pradesh High Court
Bharat Bhushan vs The State Of Madhya Pradesh on 22 November, 2021
Author: Anil Verma
1 M.Cr.C..No.48082 of 2021
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
M.Cr.C..No.48082 of 2021
(Bharat vs. State of M.P.)
Indore dt.22.11.2021.
Shri Sanjay Sharma, learned counsel for the applicant.
Shri P. Choudhary, learned P.L. for respondent/State.
Heard.
This is the first bail application under Section 438 of
Cr.P.C. on behalf of the applicant for grant of anticipatory bail.
The applicant is apprehending his arrest in connection with
Crime No.375/2020, registered at Police Station Kanadiya
district Indore, for the offences punishable under Section 34(2)
of M.P. Excise Act.
As per prosecution story, the police received secret
information from the informant that vehicle bearing registration
No.M.P. 09 GH 5929 in-route from Indore to Khandwah carrying
illegal liquor. Acting upon the said information, police
intercepted the said vehicle at Tejaji Nagar. Co-accused Amit and
Vishal were found in possession of 1305 bulk litres of country
made liquor. Accordingly, offence has been registered and they
were arrested. During further investigation, on the basis of memo
under Section 27 of the Evidence Act, co-accused persons along
with present applicant Bharat were also implicated as an accused
in the alleged offence.
Learned counsel for the applicant contended that applicant
is innocent and he has been falsely implicated in the offence.
There is no legal evidence on record to connect the applicant
with the aforementioned Crime. Nothing has been recovered
from his possession. Co-accused Rajnish, Sudhir and Surendra
Tiwari have been enlarged on bail by the order of this Court and
the Apex Court. It is worthy to note that applicant was granted
license by the Excise Department for running liquor shop and he
was having authority to sale the liquor. He has been made
accused only on the basis of memorandum of co-accused under
Section 27 of Evidence Act, which is not admissible in the eyes
of law. He has been made accused after to much delay. He is
permanent resident of district Indore. Under these circumstances,
prayer for grant of bail may be considered on the terms and
conditions as this Court deems fit and proper.
Learned counsel for the applicant has placed reliance on
the judgment of the Coordinate Bench of this Court in the case of
Naresh Kumar Lahria vs. State of M.P. & Ors., 2004 (4) MPHT
205 in which it has been held as under :-
"..............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 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 putforth and bring it to the
notice of the Court that the offences which are
encapsuled under Section 59A(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."
Per contra, learned Panel Lawyer for respondent - State
opposes the bail application and prays for its rejection by
submitting that in view of the evidence available on record,
present applicant does not deserve for anticipatory bail.
Perused the case diary as well as the impugned order
passed by the Court below.
Considering the facts and circumstances of the case, nature
and gravity of offence and also taking note of the fact that
although other co-accused Rajnish, Surendra have been released
on regular bail, but present applicant filed an application under
Section 438 of Cr.P.C therefore, the present applicant's case is
not similar with these co-accused person. After the incident,
applicant was also absconded.
In view of the above, without commenting upon merits of
the case, this Court is not inclined to grant anticipatory bail to
the present applicant.
Accordingly, the bail application filed under Section 438 of
Cr.P.C is dismissed.
(ANIL VERMA)
JUDGE
SS/-
Digitally signed by SHAILESH
MAHADEV SUKHDEVE
Date: 2021.11.22 18:39:13
+05'30'
