Ghanshyambhai Amarshibhai Lakhani vs State Of Gujarat

Dr. Ashokkumar C. Joshi, J

Heard learned Senior Advocate Mr. R.S.anjanwala appearing with learned Advocate Mr. Aadit R. Sanjanwala for the Applicant and learned APP Ms. Moxa Thakkar for the Respondent - State.

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for enlarging him on anticipatory bail in connection with the FIR No. 1 1 1 2 1 0 0 3 0 2 1 1 5 5 2 registered with Surat City Mahidharpura Police Station for the offenses punishable under Sections 65(a), (e), 98(2) and 81 of the Gujarat Prohibition Act, 1949.

Learned Advocate for the Applicant has urged that the allegations levelled against the Applicant accused is to the extent that he has purchased a very little quantity of liquor bottles from the so-called prime accused. Secondly, he has already paid an amount of Rs.5000/- and the remaining amount of Rs.1700/- was only due to be paid. Thirdly, he is not a bootlegger and fourthly it is nobody's case that the present Applicant was selling the so-called liquor to any other person, which was seized by the police officer from the prime accused. Learned Advocate for the Applicant has further submitted that the present Applicant is a businessman with no criminal antecedents and he is having two children as such he is not involved in any such offence. It is submitted that moreover, the Applicant is having the permit. Learned Advocate for the Applicant has submitted that the Applicant is thus apprehending his arrest in connection the aforesaid FIR and in this connection the earlier application filed by the Applicant before the learned Sessions Court came to be dis-allowed. Learned Advocate for the applicant has therefore submitted that the present application may be allowed.

Learned advocate for the applicant on instructions state that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. He further submit that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail.

Learned Additional Public Prosecutor appearing on behalf of the respondent - State has heavily opposed grant of anticipatory bail looking to the nature and gravity of the offence. Learned APP has urged that the Applicant accused has made 150 calls to the prime accused who is having many criminal antecedents, and has also arranged parties of such prohibited goods, and therefore, also its a serious offence. Learned APP has repeatedly argued that this Court is normally never incline to consider anticipatory bail applications under the Prohibition Act. Learned APP has further submitted that only on the basis of custodial interrogation the investigating officer would be able to notice if any illegal activity including re-selling the liquor is done by the Applicant. Further, even if the investigating officer goes for remand, then also it differs from the anticipatory bail, that is what the settled law. Learned APP has lastly urged that the diary which is collected by the investigating officer contains the name of the present Applicant accused and therefore also it comes out that the present Applicant is involved in such transactions. Learned APP has therefore submitted that the discretion may not be exercised.

Having heard the arguments advanced by the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. No doubt, this Court is not liberal in granting anticipatory bail in prohibition cases but in the opinion of this Court the Applicant is a purchaser for few bottles of liquor for his own use for which he is having the permit. Therefore, it's case of consumption for himself and not for selling the same to any other person nor for any illegal transaction. Therefore, this court is inclined to grant anticipatory bail looking to the special facts and circumstances of the case.

This Court has considered following aspects,

(a) Pursuant to the FIR it appears that the role attributed to the present Applicant accused is merely a purchaser of liquor from the so-called prime accused for which he has paid and amount of Rs.5000/- and the remaining amount of Rs.1700/- is due to be paid.

(b) The present Applicant is having permit.

(c) Further, it is nobody's case that the Applicant is selling the liquor to any third party and the present Applicant is not a bootlegger.

(d) There is a difference so far as custodial interrogation and the remand is concerned if so granted by the competent learned Magistrate as prayed by the investigating officer.

(e) as per catena of decisions of Hon'ble Supreme Court there are mainly two factors which are required to be considered by this court;

(i) prima facie case

(ii) requirement of accused for custodial interrogation.

Therefore, in the facts and circumstances of the present case, this court is inclined to consider the case of the applicant.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565. Further, this Court has also taken into consideration the ratio laid down in the case of Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Anr. in Special Leave Petition No. 7281-7282/2017 dated 29.01.2020.

In the result, the present application is allowed. The applicant is ordered to be released on anticipatory bail in the event of his arrest in connection with a FIR No. 1 1 1 2 1 0 0 3 0 2 1 1 5 5 2 registered with Surat City Mahidharpura Police Station for the offenses punishable under Sections 65(a), (e), 98(2) and 81 of the Gujarat Prohibition Act, 1949 on executing a personal bond of Rs.25,000/- (Rupees Twenty five thousand Only) with one surety of like amount on the following conditions;

(a) shall cooperate with the investigation and make available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 15.12.2021 between 12.00 Noon and 2.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the remand application without being influenced of the observations made by this Court;

The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

Rule is made absolute to the aforesaid extent. Direct service is permitted.