Ashok Kushwah vs The State Of Madhya Pradesh
2023 Latest Caselaw 22031 MP

Madhya Pradesh High Court

Ashok Kushwah vs The State Of Madhya Pradesh on 21 December, 2023

Author: Sanjeev S Kalgaonkar

Bench: Sanjeev S Kalgaonkar

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                     BEFORE
                                   HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
                                              ON THE 21 st OF DECEMBER, 2023
                                  MISCELLANEOUS CRIMINAL CASE No. 55798 of 2023

                           BETWEEN:-
                           ASHOK KUSHWAH S/O SHRI PANCHAM KUSHWAH,
                           AGED ABOUT 55 YEARS, OCCUPATION: LABOUR,
                           RESIDENT OF      MAHESHPURA POLICE STATION
                           GIRWAI, DISTRICT GWALIOR (MADHYA PRADESH)

                                                                                           .....APPLICANT
                           (SHRI ANSHU GUPTA -ADVOCATE FOR THE APPLICANT)

                           AND
                           THE STATE OF MADHYA PRADESH INCHARGE POLICE
                           STATION THROUGH POLICE STATION GIRWAI
                           DISTRICT GWALIOR (MADHYA PRADESH)

                                                                                        .....RESPONDENT
                           ( SHRI R.K. AWASTHI - PUBLIC PROSECUTOR FOR THE RESPONDENT-
                           STATE)

                                 This application coming on for HEARING this day, th e court passed
                           the following:
                                                              ORDER

This third bail application has been filed by applicant under section 439 of the Code of Criminal Procedure, 1973 for grant of bail in connection with Crime No 327/2023 registered at Police Station Girwai, District Gwalior (M.P.), for an offence punishable under section 34(2) of the Excise Act. The applicant is in judicial custody since 25/09/2023. First bail application was dismissed as withdrawn vide order dated 12/10/2023 passed in M.Cr.C. No. 45810/2023 and second bail application was dismissed as withdrawn vide order dated 23/11/2023 passed in M.Cr.C. No. 49742/2023.

As per the case of prosecution, on secret information, on 25/09/2023 ASI- Kamlesh Singh Yadav of Police Station Girwai reached near Government School at Maheshpura. Applicant/accused Ashok Kushwah was found in possession of 400 quarters of country made plain liquor, total quantity 72 bulk litres. As accused could not produce valid licence of sale of liquor, the illicit liquor was seized from his possession in compliance with due procedure. Offence punishable under Section 34(2) of the M.P. Excise Act was registered at Crime No. 327/23 by Police Station-Girwai, District Gwalior. Applicant was arrested on 25/09/2023, he is in custody ever since. On completion of investigation final report was submitted. The trial is underway.

Learned Counsel for the applicant, in addition to the grounds mentioned in the application, submits that statements of witnesses Satish Garg (P.W.1), Kamlesh Singh (P.W.2) and Aman Ali (P.W.3) have been recorded before the Trial Court. The independent witness Aman Ali (P.W.3) did not support the prosecution. Applicant has already undergone custody for almost three months. Learned counsel further referring to the judgment of Hon'ble Supreme Court in the case of Prabhakar Tiwari Vs State of U.P.and Anr. (2020) 11 SCC 648, contends that bail application should not be rejected merely on the basis of criminal antecedent. Therefore, applicant may be extended the benefit of bail.

Per contra, learned Counsel for the State opposes the bail application and submits criminal history of 25 cases against the applicant. Most of them relating to offence punishable under Section 34 of the M.P. Excise Act. Learned counsel submits that criminal history of the applicant suggests that he is a habitual offender with regard to illegal manufacturing, transportation, possession

and sale of illicit liquor. After release on bail, there is strong possibility that he will again get involved in the related activity. The criminal antecedents and the evidence recorded during trial suggest the possibility that he may abscond and delay the trial. The trial is progressing at appropriate pace, it will not take much time to conclude. Therefore, the applicant may not be extended benefit of bail.

Heard learned counsel for the parties and perused the case diary. Although criminal antecedent by itself is not sufficient reason for refusal of bail, still it need to be taken into consideration in totality of circumstances for consideration on bail. Considering the rival contentions and over all circumstances of the case, this Court is not inclined to grant bail.

Accordingly, the third bail application preferred by the applicant under Section 439 of the Cr.P.C, stands rejected.

CC as per rules.

(SANJEEV S KALGAONKAR) JUDGE Prachi