Sujesh Kumar Turkar vs State of Chhattisgarh

Sunil Kumar Sinha, J.—This is an application filed u/s 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicant, who is apprehending his arrest in connection with Crime No. 22/2006, registered at Police Station, Manpur District Rajnandgaon (CG), for the offence punishable u/s 34A of the Excise Act.

The brief facts, as stated by the learned Counsel for the State, according to the case diary, are that illicit liquor in the quantity of 315 quarter bottles, amounting to 56 bulk litres, was seized from the house of one Videshi Ram Gond in Village Manpur. When Videshi Ram Gond was asked to explain the possession, he stated that this liquor belonged to the applicant-Sujesh Kumar Turkar, who is the shopkeeper of liquor shop of Village Manpur.

Learned Counsel for the applicant submits that the seizure memo is also prepared, showing seizure of the liquor from the house of Videshi Ram Gond, therefore, the aforesaid seizure cannot be attributed to the present applicant only on the statement made by him. The submission is that Videshi Ram Gond, in order to escape from the liability, is making such allegations against the applicant. He prays for releasing the applicant on anticipatory bail.

On the other hand, learned Counsel for the State opposes the prayer. However, he also does not dispute that the seizure of liquor was made from house of Videshi Ram Gond in Village Manpur. But, he raises the ground that under the provisions of Section 59-Aof the CG. Excise Act, this application for anticipatory bail would not be maintainable.

Clause (i) of Section 59A of the Act provides that no application for anticipatory bail shall be entertained by any Court in respect of a person accused of an offence punishable u/s 49A 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 25 bulk litres. Section 34 of the Excise Act deals with penalty for unlawful manfuacture, transport, possession, sale etc. Clauses (a) and (b) of Sub-section (1) of this section provides that whosoever, in contravention of any provisions of this Act, or of any rule, notification or order made or issued thereunder, or of any condition of a licence permit or pass granted under this Act,-

(a) manufactures, transports, imports, exports, collects or possesses any intoxicant; (b) save in the cases provided for in Section 38, sells any intoxicant, shall subject to the provisions of Sub-section (2), be punishable for every such offence in the manner prescribed u/s 34. That is to say that for attracting the impediment of Section 59-A (i) of the Act, ingredients of Clause (a) or Clause (b) of Sub-section (1) of Section 34 with a quantity of liquor exceeding 25 bulk litres, is an essential factor or that the offence should be punishable u/s 49A of the said Act.

Almost similar provision, as Section 18 in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is there, whereby the applicability of Section 438 of Cr.PC has been taken away. Even after that many decisions have been rendered granting anticipatory bail on the foundation that the basic ingredients of the offence are not made out. While holding the provisions of Section 59-A(i) of the Act as intravires, the Division Bench of the Madhya Pradesh High Court laid down that it would be open to an accused to show that no offence inviting frown of Section 59A(i) of the Act is made out as the basic ingredients are absent. The Division Bench emphasized that it would be dependant on the facts of each case and merely because Section 438 is not applicable to certain categories of offences, the Court is not bereft of power only because in the FIR, the said offences are mentioned. It cannot be said with certitude that if the accused can put forth a case or made out of a case, though the offences which have been mentioned u/s 59A(i) of the Act do find mention in the FIR, but essentially and factually the case does not fall under the said provision, irrefragably the Court can entertain the application for grant of anticipatory bail because it is not nomenclature which should govern the scenario but the real essence. The Division Bench furthersaid that if the accused can, by clarificatory means with substantial material put forth and bring it to the notice of the Court that the offences which are encapsuled u/s 59A(i) of the Act are really not in respect of which the accused has been roped in and sought to be arrested arc actually not within its ambit or sweep and not covered by it then the eclipse created by the provision gets lifted and the accused can seek the ambit of umbrellas of Section 438 of the Code. Please see Naresh Kumar Lahria Vs. State of M.P. and Others, .

I have shown my respectful agreement with the above view taken by the Division Bench in the matter of Lakhan Sahu v. State of Chhattisgarh M.Cr.C. No. 2011/2006 and accordingly, I again hold that if the basic ingredients of the offences referred to in Section 59A(i) are not made out on the basis of a given case and if the accused by clarificatory means puts forth that the offences mentioned in Section 59A(i) of the Act are really not there against the accused, in respect of which his arrest is sought, his application for anticipatory bail can be entertained and I hold it accordingly.

On merits, I have already said that the seizure is made from the house of one Videshi Ram Gond, therefore, in the facts and circumstances of the case, I deem it proper to allow this application filed u/s 438, Cr.PC.

It is directed that in the event of arrest of this applicant, he shall be released on bail on his furnishing a personal bond in sum of Rs. 20,000/- (Rupees Twenty thousand) with one surety in like amount to the satisfaction of the officer arresting him.

This order shall remain in force for a period of 60 days from today, during which, the applicant may apply for regular bail before the concerned Court.

Certified copy as per rules.