Deepak Kumar Jaiswal vs The State Of Madhya Pradesh
2023 Latest Caselaw 6855 MP

                                   1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                            BEFORE
              HON'BLE SHRI JUSTICE ANAND PATHAK
                      ON THE 27 th OF APRIL, 2023
              MISC. CRIMINAL CASE No. 17363 of 2023

BETWEEN:-
DEEPAK KUMAR JAISWAL S/O VIJAY SHANKER
JAISWAL, AGED ABOUT 45 YEARS, R/O GEETA SADAN
ARIHANT DHAM SETHI NAGAR UJJAIN (MADHYA
PRADESH)

                                                                 .....APPLICANT
(BY SHRI VISHAL DANIEL - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION HOUSE MEHANDWANI DISTRICT DINDORI
(MADHYA PRADESH)

                                                               .....RESPONDENT
(BY SHRI VIVEK LAKHERA - GOVERNMENT ADVOCATE )

      This application coming on for admission this day, the court passed the
following:
                                    ORDER

This is the FIRST application under Section 438 of Cr.P.C. filed by the applicant in connection with Crime No. 22/23 registered at Police Station: Mehandwani, Dindori (M.P.) for the offence under Section 34(2) and 42 of the Excise Act.

2. The applicant is apprehending his arrest on the basis of registration of offences referred above.

3. It is submitted by the learned counsel for the applicant that the applicant is registered owner of offending vehicle, which was seized by the police and it

allegedly involved in transportation of illicit liquor. Since the applicant was not present on the spot when alleged offence took place and his source of implication is his offending vehicle and being its registered owner, therefore, no connecting evidence exists to implicate him for alleged offence under Section 34(2) and 42 of the Excise Act, 1915.

4. Learned counsel for the applicant referred Section 34 (1) where opening words of Section is "Whoever manufacturers, transports, possesses, sale etc." and thus, it qualifies that the person who is directly involved in transporting the illicit liquor would be liable for punishment rather than causing it to be transported. Presumption clause of Section 43 of the Act, 1915 only operates

with regard to Section 34, 35 and 36 of the Act and not over Section 42. Since vehicle is subject to confiscation, therefore, it is not the case where person like the applicant can be set free without liability. Prosecution has to lead positive evidence to connect an accused to a substantive offence with the aid of some non-substantive provision such as Section 42 of the Act, Section 34 or 120-B of the I.P.C. Here no such connect is apparently visible. He referred Section 20, 25 and 35 of the N.D.P.S. Act and Section 4 (1-a) of the Mines and Minerals (Development and Regulation) Act, 1957.

5. Learned counsel for the respondent/ State opposed the prayer and prayed for dismissal of the application. However, he fairly submitted that the role of the applicant appears to be the registered owner of the offending vehicle. He was not present on the spot nor fled when intercepted. His vehicle was used for transportation of illicit liquor. He also relied on Section 59-A of the Excise Act where anticipatory bail is barred.

6. Heard the learned counsel for the parties and perused the case diary.

7. This is a case where the applicant prima-facie appears to be registered

owner of the offending vehicle in question and no other statement of any witness prima-facie suggests that at the instigation of the applicant, liquor was transported or applicant was involved in any manner causing transportation of liquor with attending facts and circumstances of the case. In absence all such ingredients, applicant deserves to be and is granted the benefit of the judgment of Apex Court in the cases of Arnesh kumar Vs. State of Bihar reported in (2014) 8 SCC 273 and Satendra Kumar Antil Vs. CBI reported in (2022) 10 SCC 51 whereby respondent/ State is directed to undertake proceedings under Section 41-A of Cr.P.C. in which the applicant shall appear and participate in the investigation and divulge the details known to him.

8. Application stands allowed and disposed of in above terms.

C.C. as per rules.

(ANAND PATHAK) JUDGE Vikram

Digitally signed by VIKRAM SINGH DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=5e3bf9b63759d9c0513833048a47283c8f66732878c5d0903 41a0b75ce6d1e91, pseudonym=0AEDD33AA7448729F1E72B903F78F04027BCFA24, serialNumber=FDD89E77C40EC11A8EC3AAADEF0E2E7DAFEC93C01 0D5EFB1CD4A15D8A674147A, cn=VIKRAM SINGH Date: 2023.05.01 10:16:51 +05'30'