Sumesh @ Monu vs State of Chhattisgarh

Fakhruddin, J.—Heard. The applicant Sumesh Sharma is being prosecuted for the offence u/s 34A of the Excise Act in Crime No. 149/2004 registered at Police Station Ganj, Raipur.

The prosecution story is that on receiving information by anonymous telephone calls on 20-5-2004 that the present applicant alongwith the co-accused Jitendra @ Jitu in Crime No. 146/2004 were going on a Motor Cycle with illicit liquor, the authorities of Police Station Ganj, Raipur proceeded towards Satkar Gali and carried out search on these persons and the Police have seized illicit liquor of 296 quarter Pauvva which was carrying by these persons on the Motorcycle.

The allegation against the present applicant Somesh @ Monu is that he was driving the Motor Cycle and the seizure memo, which has been prepared from this applicant is only of the Motor Cycle. It is submitted that no illicit liquor has been seized from the present applicant except the Motor Cycle from him and he is said to be in jail since 20-5-2004.

Learned counsel for the applicant contends that in absence of any material conscious possession of the illicit liquor by the accused, he cannot be said to be in possession of the same. In support of his contention, he placed reliance on a decision of the Supreme Court Narcotics Control Bureau, Jodhpur Vs. Murlidhar Soni and Others, and another decision Anil Kumar Ram Avtar Gupta Vs. State of M.P.,

Learned counsel for the petitioner further referred to Section 59A(ii) of C.G. Excise Act, 1915. Section 59A(ii) is relevant here and quoted below:

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) *** *** ***

(ii) a person, accused of an offence punishable u/s 49A 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 [25 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 u/s 49A and on the expiry of such 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.

Learned counsel for the applicant further submits that in similar matter i.e., M. Cr.C. No. 1210/2004 (Labhodas v. State) the accused has been released on bail and claims similarity.

Learned State Counsel is not in a position to dispute that the liquor is seized from the present applicant.

Having considered the facts and circumstances and material on record and no seizure of illicit liquor has been made from this accused except the Motor Cycle that the accused is said to be in jail since 20-5-2004, in the opinion of this court, prima facie it is a case under S. 50A(ii) of the C.G. Excise Act where the bail can be granted.

Accordingly, it is directed that the applicant Sumesh @ Monu be released on bail on his executing a bond in sum of Rs. 5000/- with one surety in the like amount to the satisfaction of the trial court concerned for his appearance before the said Court or as and where so directed.

The bond shall contain Photograph, crime number and the details of movable and immovable properties belonging to the applicant. The accused shall not repeat the offence and shall attend on all dates of hearing before the said Court. He shall also attend before the Police Station concerned on 1st Sunday of every month between 11.00 a.m. to 2.00 p.m. Before accepting the bond, copy of the same shall be supplied to the prosecution.

C.C. as per rules.