Madhya Pradesh High Court
Gopal Sharma vs The State Of Madhya Pradesh on 30 November, 2021
Author: Rajendra Kumar Srivastava
1 MCRC-57023-2021
The High Court Of Madhya Pradesh
MCRC No. 57023 of 2021
(GOPAL SHARMA Vs THE STATE OF MADHYA PRADESH)
2
Jabalpur, Dated : 30-11-2021
Shri T.P. Jaiswal, learned counsel for the petitioner.
Ms. Ranjana Agnihotri, learned P.L. for the respondent/State.
This is first bail application filed by the applicant under Section 438 of
Cr.P.C. for grant of anticipatory bail, apprehending his arrest in connection
with Crime No. 721/2021 registered at Police Station Kotwali, District
Shahdol (MP) for the offence punishable under Sections 34(2) of M.P.
Excise Act.
Prosecution story, in short, is that on 10.09.2021, Police Official of
Police Station Shahdol received an information that some persons are
transporting liquor without having valid permit by Vehicle No. 407
bearing registration No. MP-18GA-0326. Thereafter, Police Official
reached on the spot and found that the said vehicle has been parked in the
courtyard at Shivam Hotel. Thereafter, the said Vehicle was searched by
the Police Officials and during searched 402 bulk liters bear and English
wine was seized from that vehicle. At that time, co-accused Satendra
Kumar Jaiswal was found in that vehicle.Co-accused disclosed this fact
that applicant/accused kept liquor in the vehicle.
Learned counsel for the applicant submits that the applicant is an
innocent person and has been falsely implicated in this case. The seized
liquor is not belonging to the applicant directly or indirectly. The
applicant has been implicated in the case only on the basis of
memorandum of co-accused person which is not admissible in law. No
liquor was seized from the possession of present applicant/accused. So,
case is made out under Section 34(2) of MP Excise Act.. In view of the
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verdict passed by Division Bench of this High Court in the case of
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Naresh Kumar Lahria vs. State of MP, reported in 2004(4) MPHT
205, this anticipatory bail application is very well maintainable. He also
submits that the offence is triable by JMFC and there is no criminal past
of applicant and also no possibility of absconding him and tampering the
evidence of prosecution. With the aforesaid, he prays for allowing this
bail application.
Per-contra, learned P.L. for the respondent/State opposes the bail
application submitting that in view of the provision of Section 59-A of
MP Excise Act, this bail application is not maintainable. He also submits
that the allegations made against the applicant are specific, therefore, he
may not be released on anticipatory bail.
Heard both the parties and perused the case diary.
The learned panel lawyer has raised the ground of maintainability
of this anticipatory bail application mentioning the provision of Section
59-A M.P. Excise Act. The learned counsel for the applicant relied on
the judgment of this High Court in the case of Naresh Kumar Lahria
(Supra) in which it is stated that the application for grant of anticipatory
bail under the MP Excise Act is maintainable provided that the applicant
is able to prove prima facie case in his favour, the relevant portion is
reproduced as under:-
"24. Before we part with the case we think it
appropriate to state though Section 59-A of the Act
provides that the Court shall not grant anticipatory
bail to a person accused of offence under Section
49-A of the Act or to accused under Section 34 (a)
and (b) of the Act in respect of a person who docs
not hold the licence under the Act or Rules or has
been found in possession at the time of detection
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more than 50 bulks of liquor, yet the accused
always in a positive manner, before the Competent
Court, put forth that there no offence has been
made out under Section 49-A or 34 (a) and 34 (b) of
the Act. It is worthnoting here that though in the
case of Ram Krishna (supra) the Apex Court has
held that the Section 18 of the SC & ST (Prevention
of Atrocities) Act. 1989, whereby the applicability
of the Section 438 of the Code has been taken
away, as intra vires, many decisions have been
rendered granting anticipatory bail on the
foundation that the basic ingredients of the offence
is not made out. Similarly, we have no hesitation in
holding that 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 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
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can entertain the application for grant of
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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."
On perusal of case diary, it is found that the applicant has been
implicated in the matter on the basis of the memorandum of co-accused
person recorded under Section 27 of Evidence Act. It is well settled of
principle of law that the statement recorded under Section 27 of
Evidence Act can be used as evidence against the maker not against any
other person. Here in the case, there is nothing on record to connect the
applicant with the alleged offence except the memorandum of co-accused
recorded under Section 27 of Evidence Act. The applicant has no
criminal past under the offence of MP Excise Act, therefore, there is no
probability to repeat the same offence.
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In such circumstances, this Court satisfies that prima facie
sufficient ground available in the case to release the applicant on
anticipatory bail. Therefore, without expressing any opinion on merits of
the case, this application for anticipatory bail filed on behalf of applicant
is hereby allowed.
It is directed that the applicant-Gopal Sharma 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.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
R
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Digitally signed by ROSHNI SINGH
Date: 2021.11.30 17:59:17 IST
