Mitesh Harshadbhai Kahar vs State Of Gujarat

A.S. Supehia, J

Heard the learned advocates for the respective parties.

RULE. Learned Additional Public Prosecutor waives service of notice of rule for and on behalf of respondent – State.

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in connection with the FIR being C.R.No.PART C - 11214046220167 of 2022 registered with Palsana Police Station, Surat Rural, District Surat for the offences under Sections 65(e), 98(2), 116(2) and 81 of the Gujarat Prohibition Act, 1949 and the Gujarat Prohibition (Amendment) Act, 2017.

The brief facts of the case are that on 01.03.2022, police personnel were instructed to curtail illegal bootlegging and gambling activity and pursuance thereof, the Police personnel were patrolling in the Government as well as private vehicles at Kadodara and Palsana Police Station area. While moving, they reached the Palsana Crossroads, where the Police Inspector, Mr.K.J.Dhaduk, instructed the Police that one Kamlesh Khatri has loaded stock of foreign liquor in one silver colour Baleno car bearing No.GJ-27-BL-0474 and one Skoda Rapid Car No.GJ-05-0567 and going to deliver it to the applicant and one Mitesh Kahar. Driver of one white I20 car bearing No.GJ-05-RB-4836 is piloting the said cars. These cars are going to pass through NH No.53, Vyara, Bardoli, Palsana and Surat. The Police called two panchas namely, Piyushbhai Manubhai Shukla and Dhavalbhai Harishbhai Dumsiya and set the watch. After some time, all three cars came and police instructed them to stop but they absconded from the place. Nobody was arrested or identified. Bolero car and I20 stopped. Nothing was found from I20 car having registration No.GJ-05-RB-4836. From Baleno Car having registration No.GJ-27-BL-0474, foreign liquor was found. Both the cars were taken to Palsana Police Station. From the place, one Baleno car worth Rs.5,00,000/-, 1399 bottles of foreign liquor and beer worth Rs.1,91,400/-, one Samsung mobile worth Rs.500/-, one from I20 car having registration No.GJ-05-RB-4836 worth Rs.5,00,000/-was seized. Total muddamal worth Rs.11,91,900/- was seized by Police.

Learned advocate for the applicant has submitted that the applicant is neither arrested nor found present at the scene of offence and no recovery or discovery has been made from him. He has submitted that the applicant is wrongly named in the F.I.R. and he has not played any role in the alleged offence. He has submitted that by creating false and fabricated story, the applicant is wrongly implicated in the offence. It is submitted that the case is at investigation stage and the entire case is based upon documentary evidence but no evidence is there against the applicant to connect him with the alleged crime. It is submitted that Skoda Rapid Car bearing No.GJ-05-JE-0567 belongs to the applicant, except that there is nothing to connect the applicant with the alleged offence.

5.1 Learned advocate for the applicant submitted that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. He further submitted that the applicant will keep himself available during the course of investigation, as well as trial also and will not flee from justice.

5.2 Learned advocate for the applicant, on instructions, submitted 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 submitted that upon filing of such application by the investigating agency, the right of the 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 bail.

On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent–State has opposed grant of bail looking to the nature and gravity of the offence.

Having heard 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 bail to the applicant.

This Court has considered following aspects;

(a) The applicant is not connected with the offence except that Skoda car belongs to him;

(b) Prima facie it appears that the applicant has played no role in the offence;

(c) The applicant has been implicated in the offence upon suspicion;

(d) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary at this stage;

Looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant.

This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312.

In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with FIR being C.R.No.PART C - 1214046220167 of 2022 registered with Palsana Police Station, Surat Rural, District Surat on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he :

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

(b) shall remain present at the concerned Police Station on 26.04.2022 between 11.00 a.m. 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.

Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide if on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the 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 concerned 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 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.

The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

Learned advocate for the applicant is also permitted to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.