Sonu vs State of Madhya Pradesh

M.K. Mudgal, J.—Case diary is available. After investigation chargesheet has already been filed.

This is the second bail application filed by the applicant/accused under Sec. 439 of Cr.P.C. for grant of bail in connection with Crime No. 313/14, Police Station Shahpura, Dist. Jabalpur for the offence registered under section 34(2) of the M.P. Excise Act.

The first bail application filed by the applicant/accused under Section 439 of the Cr.P.C. was dismissed as withdrawn by this Court vide order dated 16-01-2015 passed in MCRC No. 19502/14.

Learned counsel for the applicant/accused submits that the applicant/accused has been in jail since 23-11-14. The alleged offence being punishable with the imprisonment of R.I. upto three years and fine of Rs. 1 lakh is triable by Judicial Magistrate First Class. Apart from this, the alleged quantity of 198 Bulk liter liquor was not seized from the possession of the applicant/accused, hence the embargo provided under Section 59(a) of the M.P. Excise Act for granting bail is not applicable in this case. Counsel further submits that the applicant/accused has been in jail for more than three months and he has no criminal antecedents. Learned counsel placing reliance upon the judgment of Hon''ble Apex Court in the case of Sanjay Chandra Vs. CBI, has prayed for grant of bail.

Learned P.L. opposing the submissions made on behalf of the applicant/accused has submitted that the quantity of seized liquor is 198 Bulk liter. As per provisions of Section 59(a) of the M.P. Excise Act there is embargo on granting bail where the quantity of seized liquor is found more than 50 Bulk liter. As per prosecution story the alleged liquor was seized from the possession of the applicant/accused and co-accused Rupesh Patel @ Monu who were carrying the said liquor illegally in an Indigo car bearing No. MP20-T-6983. In the said circumstances the bail can only be granted where the Court finds that prima-facie there is no evidence against the applicant/accused as regards the alleged offence. On the aforesaid grounds, learned P.L. has prayed for rejection of the bail application.

On perusal of the case diary it is evident that when an Indigo Car bearing No. MP20-T-6983 containing 20 Cartoons Desi Masala Madira, the quantity of liquor 198 Bulk liter, worth Rs. 71,000/-, was intercepted by the Police Shahpura on 22-11-14 at 11:50 pm, the applicant/accused was sitting in the vehicle and co-accused Rupesh Patel @ Monu was driving the said vehicle and the liquor was being illegally carried without permit by the applicant/accused and co-accused Rupesh Patel @ Monu. The alleged liquor was seized from the vehicle and the applicant/accused and co-accused Rupesh Patel @ Monu were arrested. In the said circumstances, it is inferred that the vehicle was in the possession of the applicant/accused and co-accused Rupesh Patel @ Monu. Indisputably, the quantity of seized liquor is 198 Bulk liter. There is embargo under Section 59(a) of the M.P. Excise Act for grant of bail where the quantity of seized liquor is found to be more than 50 Bulk Liter. The said provision reads as under :-

59-A. 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 respect 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) a person, accused of an offence punishable under Section 49-A or 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 shall not be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and in case such an application is opposed by the Public Prosecutor, unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail:

Provided that no court shall order for detention of such person in custody during the course of investigation for total period exceeding 60 days where it relates to 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 the offence exceeding fifty bulk litres and 120 days where it relates to an offence under Section 49-A and on the expiry of such period of 60 days or 120 days, as the case may be and in the event of the report of complaint not being filed the accused shall be released on furnishing bail;

(iii) the limitations for grant of bail specified in clause (ii) are in addition to limitations prescribed under the Code of Criminal Procedure, 1973 (No. 2 of 1974) or any other law for the time being in force regarding grant of bail.

Considering the evidence of charge-sheet it can be inferred that there is prima-facie evidence on record against the applicant/accused to hold that the alleged liquor was seized from his and co-accused Rupesh Patel @ Monu''s possession. Considering the embargo for granting bail under Section 59(a) of the M.P. Excise Act the application filed by the applicant/accused cannot be allowed. It is totally immaterial that the applicant/accused has been in jail for more than three months or the offence is triable by Court of Judicial Magistrate First Class. So far as the cited judgment is concerned, the said judgment is not related to the provisions of Section 59(a) of the M.P. Excise Act, hence the said judgment does not help the applicant/accused in this case. It is also observed here that the contention of the applicant/accused that the applicant/accused has no criminal antecedents has also no relevance.

It is true that the co-accused of this case Rahul Sahu was granted bail by this Court vide order dated 08-01-2015 passed in MCRC No. 20336/14 holding that the applicant/accused neither arrested on the spot nor was his identification parade conducted after his arrest and he was implicated in the case only on the basis of co-accused''s statement recorded under Section 27 of the Evidence Act. The case of co-accused Rahul Sahu is quite distinguishable from the case of applicant/accused, hence no benefit can be given on the basis of the said order.

Keeping in view the aforesaid facts and circumstances of the case, the second bail application filed by the applicant/accused is hereby dismissed.

Certified copy as per rules.