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Madhya Pradesh High Court · body

2003 DIGILAW 100 (MP)

Banshilal v. State of M. P.

2003-01-16

A.K.GOHIL

body2003
JUDGMENT Applicants have filed this application under section-439 of the Code of Criminal Procedure for grant of bail in connection with Crime No. 332/2002 registered at Police Station Yashodharman Nagar, Mandsaur, for the offence under section 34A of the M.P. Excise Act, 1915 (for short "the Act"). The allegation against the applicants is about the recovery of 56 litres of liquor from their possession. The applicants are in custody w.e.f. 20.11.2002. Charge-sheet has been filed. The learned Fourth Additional Sessions Judge, Mandsaur rejected the application on the ground that in view of section 59A (ii) of the Act the Court is not having any power to grant bail to the applicants. The submission of Shri Jai Singh is that since the charge-sheet has been filed and the' offence under section 34A is punishable under sub-section (2) of section 34 of the Act for imprisonment of a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees, and also triable by Magistrate First Class, the applicants be released on bail. Learned Deputy Govt. Advocate for State submitted that while passing the order, provisions of section 59A (ii) of the Act should be considered and did not seriously oppose the application. The bar created under section 59A (ii) of the Act against grant of bail for the offence punishable under section 49A and also under section 34 is that an opportunity to oppose the application for such release shall be provided to the Public Prosecutor and if 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, the bail cannot be granted. Therefore, under section 59A (ii) of the Act while considering the bail application, the Court is required to consider the legislative mandate of the section and to provide an opportunity to the public prosecutor to oppose the application, obviously which should be just, fair and reasonable. Where the opposition by the public prosecutor is only for the sake of opposition, this cannot be considered as just, fair or reasonable. Where the opposition by the public prosecutor is only for the sake of opposition, this cannot be considered as just, fair or reasonable. The second condition is that there must be satisfaction of the Court 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. So far as the second condition is concerned, the Court can consider the totality of the material collected in the case-diary for recording his satisfaction that the accused is not prima facie guilty of such offence and that he is not likely to commit any offence while on bail. In such cases while considering bail applications, in view of the bar of section 59A (ii) of the Act, the liberty of the citizens has got to be balanced with the interest of the society for which bar has been imposed. While granting bail in cases where embargo has been created by section 59A (ii) of the Act, the Court may also consider the nature of offence; involvement of the accused in the commission of crime; recovery of any contraband material from him and its quantity; and that he is not a habitual offender or a previous convict and his release on bail will not prejudice the case of the prosecution; and that the investigation is over and charge-sheet has been filed. It has also to be kept in mind that the offence under section 34(2) read with section 49A is triable by Magistrate First Class and the maximum punishment shall not be less than one year but may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees under section 34 and under section 49A, sub-section (1) under clause (iii) when death of human being is caused, the imprisonment which shall not be less than two years but may extend to ten years and when any person is a previous convict under this section for a second or subsequent offence, he shall be punished to imprisonment for life or imprisonment which shall not be less than five years but extend to ten years. Therefore, the Act itself has provided two parameters for the first offence and also for the subsequent and second offence. Therefore, the Act itself has provided two parameters for the first offence and also for the subsequent and second offence. When an offence is committed by a previous convict or accused is a habitual offender, the Court may consider his case separately and looking to the circumstances of the case Court may not release him on bail. But in a case of first offence, if the conditions and circumstances are satisfied, the Court may grant bail in appropriate cases after considering the embargo created by section - 59A (ii) of the Act. In cases where it is the first offence of the applicant, while granting bail, the Court may provide further safeguard and take an specific undertaking that he/they will not commit any offence while on bail and if there is any breach in the undertaking the Court will consider the case for cancellation of their bail. This undertaking will also provide a safeguard not to commit any offence while on bail. The Courts are also empowered to impose other conditions as required under sections 437 and 439 CrPC. In the case in hand, from the material collected in the case-diary, it is Clear that more than 56 bulk litres of liquor has been seized from two accused persons which is more than the prescribed exempted limit of 50 bulk litres and it has been submitted by the applicants that they have been falsely implicated in this case; they are permanent resident of District Mandsaur and it is their first offence; they are in custody w.e.f. 20.11.2002 and the case is triable by the Magistrate First Class and trial is likely to take time. Thus, considering the totality of the facts and circumstances of the case, I am of the view that the applicants are entitled to be granted bail. Therefore, it is directed that applicants No. (1) Banshilal Sio Hariram; and No. (2) Bhanwarlal Sio Karulal be released on bail upon each of them furnishing a personal bond each for the sum of Rs. 25,000.00 (Twenty five thousand rupees) with one surety each for the like amount to the satisfaction of the trial Court. A specific undertaking be obtained from them that while on bail they will not commit any offence otherwise bail granted shall be liable to be cancelled. 25,000.00 (Twenty five thousand rupees) with one surety each for the like amount to the satisfaction of the trial Court. A specific undertaking be obtained from them that while on bail they will not commit any offence otherwise bail granted shall be liable to be cancelled. It is further directed that they shall regularly appear before the trial Court on each and every date of hearing; shall not tamper the prosecution evidence; and shall fully co-operate in the quick disposal of the trial. C.C. on payment of usual charges.