Rajubhai Ramanbhai Chaudhary vs State Of Gujarat

A.Y. Kogje, J

The present successive anticipatory bail application is filed by the applicant under Section 438 of the Code of Criminal Procedure, 1973 in the event

of his arrest in connection with FIR being C.R.No.III-453 of 2019 registered before Vyara Police Station, Tapi for the offence under Sections 65-E,

81 and 83 of the Prohibition Act.

Learned advocate for the applicant vehemently submitted that the applicant is time and again made a victim by the police and the applicant is

arraigned as an accused. It is submitted that earlier also, the applicant has been arraigned in other offences of similar nature under the Prohibition Act

and each time, the applicant has been acquitted.

Learned advocate for the applicant submitted that the applicant is not named in the FIR and merely because during the investigation, some

reference is made to his mobile number, the applicant is arraigned as an accused.

Learned advocate for the applicant submits that any action on such flimsy evidence will tarnish the image of the applicant. It is submitted that the

applicant is ready and willing to cooperate with the investigation and the custodial interrogation is not necessary.

As against this, learned APP submits that the applicant is having antecedents of 6 offences and the applicant was indulged in these offences of

prohibition. It is submitted that as the investigation is still going on and during the course of investigation the co-accused has revealed the name of the

applicant as the main person from whom prohibited liquor was procured. It is submitted that during the course of investigation the call details records

have been received which also indicates use of the mobile number of the applicant in the commission of the offence.

Learned advocate for the applicant submits that even though there were antecedents against the applicant, if there is no role or evidence against the

applicant having played any role in the present offence, then antecedents will not come in way of the applicant.

Having considered the rival submissions and having perused the documents on record, it transpires that the applicant had earlier preferred Criminal

Misc.Application No.17413 of 2019 which came to be withdrawn under order dated 25.09.2019. Since then the applicant is not available for

investigation. In the pleadings or during the course of arguments, nothing is pointed out by the learned advocate for the applicant on behalf of the

applicant about any change of circumstances after the order of withdrawal of his previous application. Therefore, in absence of any change of

circumstance, the application itself may not be entertained. However, considering the vehement arguments of learned advocate for the applicant, the

Court has also taken into consideration the case on merits. From the investigation case papers, it is apparent that the applicant-accused arrested after

his mobile number was referred by the arrested accused with whom the accused was in contact for the purpose of shifting a contraband liquor. Such

mobile number, as per the investigation, is belonging and is being used by the applicant. From the investigation, it also appears that the arrested

accused, in his statement, during the course of investigation, has categorically named the applicant and has also given the description of the role played

by him in the offence. The Court has also considered 5 offences, which have earlier registered against the applicant and such offences are also of

similar nature i.e. under the provisions of the Bombay Prohibition Act. Though learned advocate for the applicant submitted that the applicant has been

acquitted in all such offences, still the role of the applicant in so far as preset offence is concerned has appeared on record and cannot be discarded.

In view of the aforesaid facts and considering the role of the applicant to be in live contact of the arrested accused and the statement of co-accused

during the course of investigation, the Court is of the view that whole interrogation of the applicant is necessary to trace out origin contraband liquor.

Moreover, since the withdrawal of his application, the applicant has neither appeared before the investigating agency nor cooperated with the

investigation. Therefore, no case is made out for exercise of discretion in favour of the applicant. The application, therefore, dismissed.