Sitaram Jaiswal vs State Of M. P

Rohit Arya, J

This is the first anticipatory bail application under Section 438 Cr.P.C. The applicant â€" Sitaram Jaiswal apprehending his arrest in connection with

Crime No.186/2021 registered at Police Station â€" Gandhi Nagar, Indore for the offence punishable under Section 34(2) of the M. P. Excise Act.

As per prosecution story, co-accused person Abhishek along with another co-accused person Jitendra were found in illegal possession of 360 bulk litre

of liquor. During the course of investigation, in their memo recorded under Section 27 of the Evidence Act, it was disclosed that liquor was delivered

from a Country Made liquor shop situated at Gandhi Nagar, Indore. Present applicant Sitaram Jaiswal and one Dharmendra Shivhare persons present

in the shop had made a delivery for sell. Accordingly, a case has been registered.

This Court while granting temporary bail to Abhishek and Jitendra had granted time to the Investigating Officer to place on record the updated case

diary, particularly in the context of apprehending the main accused persons named by them.

The applicant in the instant case has approached the trial Court for anticipatory bail and has withdrawn the same unconditionally and without any

reason on 20/07/2021. Now he has flocked to this Court seeking anticipatory bail.

Shri Ajay Bagadiya, learned counsel for the applicant tried to impress upon this Court that the applicant is innocent and he has no role to play in the

matter of either sale or delivery of liquor as neither he is the Manager nor the Proprietor. Apprehension of arrest on account of disclosure of his name

in the memo of co-accused persons Abhishek and Jitendra under Section 27 of the Evidence Act, the applicant seeks protection against arrest.

Shri Bagadiya states that unless the name of the applicant is notified with the Excise Department that he is the agent of the shop as per the Excise

Rules, the applicant could not be construed to be the agent of the shop.

Per contra Shri Sisodiya, learned Government Advocate opposes the application inter-alia contending that it is not only the co-accused Abhishek and

Jitendra found on spot with illegal possession of seized liquor, in their memo recorded under Section 27 of the Evidence Act have disclosed the name

of present applicant but also Vinod S/o Mahesh, Satya Prakash S/o Sugreev and Shubham S/o Ramesh Jaiswal working in shops have also made

statement under Section 161 of Cr.P.C. that present applicant Sitaram Jaiswal is managing the shop and co-accused Dharmendra is controlling the

entire area as Area Manager. At his behest, liquor was delivered to co-accused persons Abhishek and Jitendra.

Learned Government Advocate submits that therefore, there is consistency in the disclosure memo of the co-accused persons as well as the

witnesses named above in the matter of disclosure of the name of the persons managing the shop or managing the area where the other shops are

located. As such complicity of the applicant, at this stage, cannot be ruled out. It is not a case of no evidence.

Upon hearing learned counsel for the parties it appears that the name of the applicant has appeared not only in memorandum of co-accused recorded

under Section 27 of the Evidence Act but has appeared in the statements of the persons working in the shop recorded under Section 161 Cr.P.C.

Merely for the reason that the applicant has been styled as Manager by these persons and his name is not notified as defined under the Excise Rules

as the “agentâ€​ by itself cannot lead to the conclusion that the applicant is innocent on the face of the material on record.

Nomenclature in the Excise Rules and in the understanding of the employees may not be critically evaluated at this stage. Persons who are running

the shop and who are prima-facie found to be instrumental in delivering the contraband of 360 bulk litre liquor to the co-accused persons, as evident

from the statement of the witnesses and the co-accused persons, at this stage complicity of the applicant cannot be ruled out. The applicant's name is

very much appearing in the Challan filed by the Investigating Officer under Section 173 Cr.P.C.

In view of the aforesaid facts and circumstances of the case, in the considered opinion of this Court, no case is made out for grant of anticipatory bail.

Anticipatory bail application is accordingly dismissed.

E-certified copy as per rules.