Madhya Pradesh High Court
Hemant vs The State Of Madhya Pradesh on 17 June, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:14457
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 17TH OF JUNE, 2025
MISC. CRIMINAL CASE No. 20800 OF 2025
HEMANT
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Mukesh Sinjonia, advocate for the applicant.
Shri K.K. Tiwari, Public Prosecutor for respondent/State.
---------------------------------------------------------------------------------------------
ORDER
This first application has been filed by the applicant under Section 482
of Bharitya Nagarik Suraksha Sanhita, 2023 for grant of anticipatory bail to
the applicant, who is apprehending his arrest in connection with Crime No.
192/2025, registered at Police Station- Kanadiya Indore District-Indore
(Urban) (M.P.) for offence punishable under Section 34(2) of MP Excise Act.
2 As per the case of prosecution, police force of P.S. Kanadiya led by
Sub Inspector Shivlal Thakur intercepted a Bolero vehicle bearing registration
No. MP-09-WL-7588 to verify the secret information on14.4.2025. Banti son
of Ashok Kumar, Gaurav son of Ram Kishan, Rohit son of Kishan Lal and
Banwari son of Jagat Singh Gurjar were found transporting country made
foreign liquor beer, total quantity 300.48 bulk liter in Bolero Vehicle. The
liquor and Bolero vehicle was seized from joint possession of Banti, Gaurav,
Rohit and Banwari. All four accused were arrested on the spot. The accused
informed that they have procured the illicit liquor on commission for sale
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from Hemant Bundela, Manager of Wine shop at Bhusamandi. Accordingly,
P.S. Kanadiya District Indore (Urban) registered FIR at crime No. 192/2025
for offence punishable under Section 34(2) of MP Excise Act against Banti,
Gaurav, Banwari,Rohit, Chandrabhan and Hemant. The statements of
witnesses have been recorded. The applicant was searched but could not
apprehend. Investigation is underway. The applicant is apprehending arrest in
the matter.
3 Learned Counsel for the applicant in addition to the grounds
mentioned in the application, submits that applicant has been falsely
implicated in this matter. No offence, as alleged, is committed by the
applicant. The applicant is implicated merely on the basis of statement of co-
accused in police custody, which is not admissible in evidence against him.
Learned counsel further submits that applicant is aged around 32 years. He is
a Labourer by profession.There is no likelihood of his absconsion leaving his
family, profession and home. He is ready to cooperate in investigation.
Therefore, applicant may be extended the benefit of anticipatory bail.
4 Per contra, learned counsel for the respondent/State opposes the bail
application on the ground of gravity of alleged offence and cites criminal
antecedents of one case registered at crime No. 911/2023 for offence
punishable under Sections 323, 294 and 506 of IPC against the applicant as
per the list enclosed on the case diary.
5 In reply, learned counsel for the applicant submits that applicant was
extended benefit of bail in other matter which is pending for trial. The
applicant has never been convicted.
6 Heard the arguments, perused the grounds for grant of anticipatory bail
stated in the application, case diary and the relevant material on record.
7. Section 34(2) of M.P. Excise Act provides as under:
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34. Penalty for unlawful manufacture, transport, possession, sale etc.
(1) ........
(2) Notwithstanding anything contained in sub-section (1), if a person is
convicted for an offence covered by clause (a) or clause (b) of sub-section (1) and
the quantity of the intoxicant being liquor found at the time or in the course of
detection of the offence exceeds fifty bulk liter, he shall be punishable with
imprisonment for a term which shall not be less than one year but which may
extend to three years and with fine which shall not be less than twenty five
thousand rupees but may extend to one lac rupees :Provided that when any person
is convicted under this section for an offence for second or subsequent time, he
shall be punishable for every such offence with imprisonment for a term which
shall not be less than two years but which may extend to five years and with fine
which shall not be less than fifty thousand rupees but may extend to two lac rupees.
8. Section 59A of M.P. Excise Act lays down an interdict with regard to
maintainability of the application for grant of anticipatory bail as under:
59A. Certain offence under the Act to be non-bailable.
- Notwithstanding anything contained in the Code of Criminal Procedure, 1973
(No. 2 of 1974) or Section 59 of the Act,-
(i) no application for an anticipatory bail shall be entertained by any Court in
respect of a person accused of an offence punishable under Section 49-A or in re-
spect of a person not being a person holding a licence under the Act or rules made
thereunder who is accused of an offence covered by clause (a) or clause (b) of
sub-section (1) of Section 34 with quantity of liquor found at the time or in the
course of detection of such offence exceeding fifty bulk litres.
(ii) .........
(iii) ........
9. A Division Bench of the High Court of Madhya Pradesh, in case of
Naresh Kumar Lahriya Vs. State of M.P. & Others reported in 2004(4)
MPHT 205, while dealing with constitutional validity of Section 59A of the
M.P. Excise Act, held 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 more than
50 bulks of liquor, yet the accused always in a positive manner, before the
Competent Court, putforth 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
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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 putforth 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 putforth 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.
10. The Supreme Court while dealing with similar provisions contained un-
der Section 18A of the Scheduled Castes and Scheduled Tribes(Prevention of
Atrocities) Act, 1989 in the case of Prathvi Raj Chauhan Vs. Union of India
and Others reported in (2020) 4 SCC 727 held as under:
28. In Subhash Kashinath Mahajan v. State of Maharashtra & Ors reported in
2018 (4) SCC 454, a two judge bench of this court held that the exclusion of antici-
patory bail provisions of the Code of Criminal Procedure (by Section 18 of the Act)
did not constitute an absolute bar for the grant of bail, where it was discernable to
the court that the allegations about atrocities or violation of the provisions of the
Act were false. It was also held, more crucially, that public servants could be ar-
rested only after approval by the appointing authority (of such public servant) and
in other cases, after approval by the Senior Superintendent of Police. It was also di-
rected that cases under the Act could be registered only after a preliminary enquiry
into the complaint. These directions were seen to be contrary to the spirit of the Act
and received considerable comment in the public domain; the Union of India too
moved this court for their review. In the review proceedings, a three judge bench of
this court, in Union of India v. State of Maharastra reported in (2020) 4 SCC 761
recalled and overruled those directions.
32. As far as the provision of Section 18A and anticipatory bail is concerned, the
judgment of Mishra, J, has stated that in cases where no prima facie materials exist
warranting arrest in a complaint, the court has the inherent power to direct a pre-ar-
rest bail.
33. I would only add a caveat with the observation and emphasize that while
considering any application seeking pre-arrest bail, the High Court has to balance
the two interests: i.e. that the power is not so used as to convert the jurisdiction into
that under Section 438 of the Criminal Procedure Code, but that it is used sparingly
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and such orders made in very exceptional cases where no prima facie offence is
made out as shown in the FIR, and further also that if such orders are not made in
those classes of cases, the result would inevitably be a miscarriage of justice or
abuse of process of law. I consider such stringent terms, otherwise contrary to the
philosophy of bail, absolutely essential, because a liberal use of the power to grant
pre-arrest bail would defeat the intention of Parliament.
11. The Supreme Court in case of Shri Gurbaksh Singh Sibbia and
Others Vs. State of Punjab reported in (1980) 2 SCC 565 while dealing with
the law relating to grant of anticipatory bail observed as under:
19. A great deal has been said by the High Court on the fifth proposition
framed by it, according to which, inter alia, the power under Section 438 should
not be exercised if the investigating agency can make a reasonable claim that it can
secure incriminating material from information likely to be received from the
offender under Section 27 of the Evidence Act. According to the High Court, it is
the right and the duty of the police to investigate into offences brought to their
notice and therefore, courts should be careful not to exercise their powers in a
manner which is calculated to cause interference therewith. It is true that the
functions of the Judiciary and the police are in a sense complementary and not
overlapping. And, as observed by the Privy Council in King Emperor v. Khwaja
Nasir Ahmed :
"Just as it is essential that every one accused of a crime should have free
access to a court of justice so that he may be duly acquitted if found not
guilty of the offence with which he is charged, so it is of the utmost
importance that the judiciary should not interfere with the police in matters
which are within their province and into which the law imposes on them the
duty of inquiry. The functions of the Judiciary and the Police are
complementary, not overlapping, and the combination of the individual
liberty with a due observance of law and order is only to be obtained by
leaving each to exercise its own function...."
But, these remarks, may it be remembered, were made by the Privy Council while
rejecting the view of the Lahore High Court that it had inherent jurisdiction under
the old Section 561A, Criminal Procedure Code, to quash all proceedings taken by
the police in pursuance of two First Information Reports made to them. An order
quashing such proceedings puts an end to the proceedings with the inevitable result
that all investigation into the accusation comes to a halt. Therefore, it was held that
the Court cannot, in the exercise of its inherent powers, virtually direct that the
police shall not investigate into the charges contained in the F.I.R. We are
concerned here with a situation of an altogether different kind. An order of
anticipatory bail does not in any way, directly or indirectly, take away from the
police their right to investigate into charges made or to be made against the person
released on bail. In fact, two of the usual conditions incorporated in a direction
issued under Section 438 (1) are those recommended in Sub-section (2) (i) and (ii)
which require the applicant to co-operate with the police and to assure that he shall
not tamper with the witnesses during and after the investigation. While granting
relief under Section 438 (1), appropriate conditions can be imposed under Section
438 (2) so as to ensure an uninterrupted investigation. One of such conditions can
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even be that in the event of the police making out a case of a likely discovery under
Section 27 of the Evidence Act, the person released on bail shall be liable to be
taken in police custody for facilitating the discovery. Besides, if and when the
occasion arises, it may be possible for the prosecution to claim the benefit of
Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance
of information supplied by a person released on bail by invoking the principle
stated by this Court in State of U.P. v. Deoman Upadhyaya to the effect that when a
person not in custody approaches a police officer investigating an offence and
offers to give information leading to the discovery of a fact, having a bearing on
the charge which may be made against him, he may appropriately be deemed to
have surrendered himself to the police. The broad foundation of this rule is stated
to be that Section 46 of the Code of Criminal Procedure does not contemplate any
formality before a person can be said to be taken in custody: submission to the
custody by word or action by a person is sufficient. For similar reasons, we are
unable to agree that anticipatory bail should be refused if a legitimate case for the
remand of the offender to the police custody under Section 167 (2) of the Code is
made out by the investigating agency.
21 The High Court says in its fourth proposition that in addition to the limitations
mentioned in Section 437, the petitioner must make out a "special case" for the
exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary
power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to
show that the power conferred by Section 438 is not "unguided or uncanalised", the
High Court has subjected that power to a restraint which will have the effect of
making the power utterly unguided. To say that the applicant must make out a
"special case" for the exercise of the power to grant anticipatory bail is really to say
nothing. The applicant has undoubtedly to make out a case for the grant of
anticipatory bail. But one cannot go further and say that he must make out a
"special case". We do not see why the provisions of Section 438 should be
suspected as containing something volatile or incendiary, which needs to be
handled with the greatest care and caution imaginable. A wise exercise of judicial
power inevitably takes care of the evil consequences which are likely to flow out of
its intemperate use. Every kind of judicial discretion, whatever may be the nature
of the matter in regard to which it is required to be exercised, has to be used with
due care and caution. In fact, an awareness of the context in which the discretion is
required to be exercised and of the reasonably foreseeable consequences of its use,
is the hall mark of a prudent exercise of judicial discretion. One ought not to make
a bugbear of the power to grant anticipatory bail.
12. The factual scenario of the case on hand, as reflected from the material
on case diary, is examined in the light of aforestated propositions of law.
13. The applicant is implicated on information given by co-accused in
police custody. The statements under Sec. 23(2) of Bhartiya Sakshya
Adhiniyam of co-accused Banty, Gaurav, Banwari and Rohit were recorded
on 15.4.2025. Despite receiving this information, no incriminating material
was seized by the Investigation Officer showing prima-facie complicity of the
NEUTRAL CITATION NO. 2025:MPHC-IND:14457
applicant in the alleged transaction resulting in the offence punishable u/Ss.
34(2) or 42 of the M.P. Excise Act . Thus, the material available on the case
diary, at present, does not reveal prima-facie complicity of the applicant in
the alleged offence. Sufficient time has elapsed since the Investigation
Officer was informed by co-accused with regard to the applicant. Presently, at
the most, the applicant is a suspect. If further investigation makes out his
complicity in the alleged offence, the applicant may be taken into custody,
however, in compliance with the guidelines laid down in the case of Arnesh
Kumar Vs. State of Bihar and Satender Kumar Antil Vs. Central Bureau of
investigation (supra). In view of above discussion, this Court is of considered
opinion that the interdict contained under Section 59A of the M.P. Excise Act
would not apply to present case. The veracity of the prosecution will be
considered on merit after evidence.
14. As informed, applicant is aged 32 years. He is a labourer by profession
and has a family to look after. Considering the age, profession and status of
the applicant, there appears to be no likelihood of fleeing from justice or
involving in any criminal activity. In absence of substantial criminal past and
previous conviction for any major offence, considering the socio-economic
status of the applicant, there appears to be no likelihood of tampering with the
evidence, influencing the witness or interfering in the investigation by the
applicant. The custodial interrogation of the applicant is not needed in the
matter. The grant of anticipatory bail to the applicant will cause no prejudice
to free, fair and full investigation.
15. Considering his age and family status, the applicant may suffer
hardship and prejudice due to incarceration entailing social disrepute and
humiliation. Considering the overall circumstances of the case, but without
commenting on merits of the accusation, this Court is inclined to grant
anticipatory bail to the applicant. Thus, the application is allowed.
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16. Accordingly, it is directed that in the event of arrest, applicant -
Hemant shall be released on bail in connection with Crime No. 192/2025
registered at Police Station - Kanadiya District Indore (M.P.) for offence
punishable under Section(s) 34(2) of M.P. Excise Act, upon furnishing a
personal bond in the sum of Rs. 50,000/- (Rupees fifty thousand Only) with
separate solvent surety of the like amount to the satisfaction of the officer
making arrest/Trial Court for compliance with the following conditions:(For
the convenience of understanding by accused and surety, the conditions of
bail are also reproduced in Hindi as under):-
1) Applicant shall make himself available for investigation as may be directed
by the Investigation Officer.
1) vUos"k.kdrkZ iqfyl vf/kdkjh ds funsZ'kkuqlkj vUos"k.k gsrq vkosnd miyC/k jgsxkA
(2) Applicant shall not commit or get involved in any offence of similar nature;
(2) vkosnd leku izd`fr dk dksbZ vijk/k ugha djsxk ;k mlesa lfEefyr ugha gksxk
(3) Applicant shall not directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade
them/him/her from disclosing such facts to the Court or to the police officer;
(3) vkosnd izdj.k ds rF;ksa ls ifjfpr fdlh O;fDr dks izR;{k ;k vizR;{k :i ls izyksHku] /kedh ;k
opu ugha nsxk] ftlls ,slk O;fDr ,sls rF;ksa dks U;k;ky; ;k iqfyl vf/kdkjh dks izdV djus ls
fuokfjr gksA
(4) Applicant shall not directly or indirectly attempt to tamper with the evidence
or allure, pressurize or threaten the witness;
(4) vkosnd izR;{k ;k vizR;{k :i ls lk{; ds lkFk NsMNkM djus dk ;k lk{kh ;k lkf{k;ksa dks
cgykus&Qqlykus] ncko Mkyus ;k /kedkus dk iz;kl ugha djsxkA
(5) During trial, the applicant shall ensure due compliance of provisions of
Section 309 of Cr.P.C/346 of the BNSS. regarding examination of witnesses in
attendance;
(5) fopkj.k ds nkSjku] mifLFkr xokgksa ls ijh{k.k ds laca/k esa vkosnd /kkjk 309 na-iz-la-@346 Hkkjrh;
ukxfjd lqj{kk lafgrk ds izko/kkuksa dk mfpr vuqikyu lqfuf'pr djsxkA
(6) If further investigation reveals complicity of applicant in the alleged
offence and prima facie offence, as alleged, is made out against him, he may be
taken into custody in compliance with the guidelines laid down in the case of
Arnesh Kumar Vs. State of Bihar and Satender Kumar Antil Vs. Central Bureau
of investigation (supra).
NEUTRAL CITATION NO. 2025:MPHC-IND:14457
17 The Investigation Officer shall get these conditions reproduced on the
personal bond by the accused and on surety bond by the surety concerned. If
any of them is unable to write, the scribe shall certify that he had explained
the conditions to the concerned accused or the surety.
C.C. as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
BDJ
BHUNESH
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENTCH AT INDORE, ou=HIGH COURT OF
MADHYA PRADESH BENTCH AT INDORE,
2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092ee5a7
4a94a5534aed3a66d9385cfcfc201e0,
WAR DATT
postalCode=452001, st=MADHYA PRADESH,
serialNumber=89FD75A8D0C99E05779A327974
E46BC85102826CE0604B211E4C91102B4D1269,
cn=BHUNESHWAR DATT
Date: 2025.06.18 18:11:34 +05'30'
