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2006 DIGILAW 435 (CHH)

LAKHAN SAHU v. STATE OF CO.

2006-09-15

SUNIL KUMAR SINHA

body2006
ORDER 1. This is an application filed under section 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicant, who is apprehending arrest in connection with Crime No. 582/2005 registered at Police station Supela, Distt. Durg (C.G.) for the offence punishable under section 34(2) of the Chhattisgarh Excise Act, 1915. 2. The brief facts are that 27 bulk litres of Desi Masala liquor amounting to Rs. 6,000/- was seized from the house of co-accused Raju Pandit, s/o Surendra Pandit on 4-7-2005 at about 20.00 hours. The allegations are that the aforesaid liquor also belonged to the present applicant, who ran away from the spot at the time of seizure. 3. Learned counsel for the applicant submits that the contents of the\seizure memo would show that the seizure was made from the house of Raju Pandit and it has been specifically mentioned in the seizure memo that at the time of seizure, Raju Pandit ran away from the spot and there is no whisper about the presence of this applicant in the seizure memo. He further argues that the name of this applicant comes for the first time in the statement of one of the Panch witnesses namely Kishore Kumar, where it has been added vide last line as follows: He also submits that it clearly appears as an addition because this portion comes as overlapping, after the signature of the investigating officer, on the left side. He shows me the copy of the statement. He further submits that thereafter, a supplementary statement of this witness was recorded on 20-92005 in which the name of the applicant has been taken by him. His submission is that need of recording of a supplementary statement in case of liquor, like present one, itself goes to show that a story has been concocted against the applicant. He prays that benefit of section 438 Cr.P.C. should be extended to the applicant. 4, On the other hand, learned State counsel opposes the bail application. His submission is that in view of the provisions of section 59-A(i) of the C.G. Excise Act, 1915, hereinafter referred to as the Act, this application for anticipatory bail would not be maintainable. He prays that benefit of section 438 Cr.P.C. should be extended to the applicant. 4, On the other hand, learned State counsel opposes the bail application. His submission is that in view of the provisions of section 59-A(i) of the C.G. Excise Act, 1915, hereinafter referred to as the Act, this application for anticipatory bail would not be maintainable. On merits, his submission is that though this applicant is on bail in other cases but he is involved in many criminal cases, therefore, he is not entitled to get the benefit of section 438 Cr.P.C.. 5. Clause (i) of section 59-A 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 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 subsection (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 manufacture, transport, possession, sale etc. Clause (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 subsection (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 49-A of the said Act. 6. 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.P.C. has been taken away. 6. 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.P.C. has been taken away. Even after that, many decisions have been rendered granting anticipatory bail on the foundation that the basis ingredients of the offence are not made out. While holding the provisions of Section 59-A(i) of the Act as intra-vires, 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 59-A(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 F.I.R., the said offences are mentioned. It cannot be said with certitude that if the accused can put forth a case or make out of a case, though the offences which have been mentioned u/s 59-A(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 further said 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 under section 59-A(i) of the Act are really not in respect of which the accused has been roped in and sought to be arrested are 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 others1. 7. Please see Naresh Kumar Lahria Vs. State of M.P and others1. 7. I am in respectful agreement with the view taken by the Division Bench of the M.P. High Court in the aforesaid matter, and hold that if the basic ingredients of the offences referred to in section 59-A(i) are not made out on the facts of a given case and if the accused by clarificatory means with substantial material puts forth that the offences mentioned in section 59-A(i) of the Act are really not there against the accused, in respect of which his arrest is being sought, his application for anticipatory bail can be entertained. 8. On merits, a perusal of the seizure memo whould show that there is no seizure from the possession of this applicant nor the house from where the seizure is made belongs to his ownership or possession. Rather there is clear evidence that the house belongs to the accused Raju Pandit and the seizure was also made from his possession. The liquor seizured in the quantity of 27 bulk litres has also not been prima facie established to be that of the applicant and in this manner, this petition would be maintainable and a bar u1s 59-A(i) of the Act would not be attracted and in the particular facts and circumstances of this case, referred to above, in the opinion of this Court, the applicant would be entitled to get benefit of section 438 Cr.P.C.. 9. In the result, this petition is allowed. It is directed that in the event of arrest, this applicant shall be released on bail on his furnishing a personal bond in sum of Rs. 10,000/- with one surety in the like sum to the satisfaction of the officer arresting him. 10. Keeping in view the principles laid down' by the Apex Court in Salauddin Abdul Samad Shaikh Vs. State of Maharashtra2, this order of anticipatory bail shall remain in force for a period of 60 days from today, during which, the applicant may approach the regular court, for grant of regular bail. Bail Granted.