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Madhya Pradesh High Court · body

2008 DIGILAW 1380 (MP)

Jagdish Kumar Arora v. State of M. P.

2008-11-26

SHANTANU KEMKAR

body2008
ORDER 1. This MCrC and MCrC No. 6292/08 (Surjeet Lal S/o. Hakim Chand v. State of M.P.) are being decided by this order. Heard finally with the aid of case diary. The applicants have filed these applications u/S. 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail in connection with Crime No. 369/08 registered against them by the police of police station Manpur, Distt. Indore for offence u/S. 420, 467 and 468 of the IPC. 2. The applicant Jagdish Kumar Arora claims to be Chairman-cum-Managing Director of Som Distilleries and Beverages Pvt. Ltd. and of Som Distilleries Pvt. Ltd. The applicant Surjeet Lal is one of the Directors of the said companies. 3. On information being received by the Excise Department on 3.5.2008 a raid was conducted in the house of Guddu @ Vishnu S/o Dhanna situated at village Silotiya, police station Manpur. In the raid, large number of liquor and bear bottles were seized from the house of said Guddu without there being any permit for the same. The Excise Officer found irregularities in the hologram affixed on the bottles and discrepancies in the date of hologram and date of manufacture put on the bottles. 4. The FIR of the raid dated 3.5.2008 was lodged on 28.8.2008 by the Excise Department against the applicants and other co-accused persons including Ajay Kumar Arora, Dy. Managing Director of Som Distilleries and Beverages Pvt. Ltd. and Som Distilleries Pvt. Ltd. 5. The allegation of the prosecution is that by playing fraud in affixing forged holograms the applicants have caused loss of revenue to the government. 6. Apprehending arrest by the police of police station Manpur in the aforesaid Crime No. 369/08 the applicants are seeking grant of anticipatory bail. 7. The applicants prior to filing of this application had applied for grant of anticipatory bail before the Sessions Court. The said applications were rejected by the Xth Additional Sessions Judge, Indore vide order dated 14.11.2008. 8. It has been argued by learned senior counsel for the applicants that the applicants have been falsely implicated in the said offence at the instance of Vinod Raghuvanshi, Assistant Commissioner, Excise Department, Indore with the object of injuring and humiliating them by having them arrested. 9. 8. It has been argued by learned senior counsel for the applicants that the applicants have been falsely implicated in the said offence at the instance of Vinod Raghuvanshi, Assistant Commissioner, Excise Department, Indore with the object of injuring and humiliating them by having them arrested. 9. The case of the applicants is that on getting the complaint of use of fake holograms and the discrepancies between the date of manufacture and the date of use of the hologram by various distilleries an inquiry was conducted by the committee of the higher officials of the Excise Department including Dy. Commissioner Excise, State Flying Squad, M.P., Dy. Commissioner, Excise Divisional Flying Squad, Bhopal, Dy. Commissioner, Excise Divisional Flying Squad, Indore and Additional Excise Commissioner, M.P. In the report dated 12.7.2008 submitted by them it was held that holograms seized in respect of M/s. Som Distilleries and Beverages Pvt. Ltd. and M/s. Som Distilleries Pvt. Ltd. are in order and are not fake. In regard to discrepancies about date of manufacture of the liquor and the date of fixation of hologram, the committee recommended for issuance of show cause notice to the defaulting distilleries so as to gather the correct facts. In the circumstances the applicants case is that the Excise Department ought to have issued show cause notice to the applicants, however instead of doing so, FIR has been lodged contrary to the recommendations of high official committee of the Excise Department. The applicants have also pointed out that in the case where the committee detected and found the use of forged hologram, like in the case of Gwalior Distilleries the said Distilleries has been imposed upon with penalty to the tune of Rs. One Lac and also a further amount of Rs. 11,072/- was recovered from the said distillery under the head loss of duty and no FIR has been lodged, whereas in the case of applicants the action of lodging FIR has been taken only at the instance of Vinod Raghuvanshi. 10. According to the applicants the case is of vendetta on the part of Shri Vinod Raghuvanshi, Assistant Commissioner, Excise Indore who acted malafidely in lodging a false complaint through his subordinates against the applicants. In order to support the allegations of malafide on the part of Vinod Raghuvanshi it is stated that Ajay Arora, Dy. 10. According to the applicants the case is of vendetta on the part of Shri Vinod Raghuvanshi, Assistant Commissioner, Excise Indore who acted malafidely in lodging a false complaint through his subordinates against the applicants. In order to support the allegations of malafide on the part of Vinod Raghuvanshi it is stated that Ajay Arora, Dy. Managing Director of Som Distilleries and Beverages and Som Distilleries Pvt. Ltd. had made a complaint on 30.7.2003 to the Excise Commissioner to conduct an inquiry into the change of partnership deed in the retail contract of Bhopal District. Since no action was taken by the Excise Department the said Ajay Arora filed in W.P. No. 28262/02 and also W.P. No. 2617/07 seeking direction to the State Government to initiate departmental proceedings against the Vinod Raghuvanshi. However the W.P. No. 2617/07 was decided on 8.4.2008 by this Court making no interference in the decision of the State Government not to initiate departmental proceedings against the Vinod Raghuvanshi. However it was observed by this Court that the dismissal of the petition would not come in the way of the criminal complaint filed by Ajay Arora and also in the investigation by Lokayukta. The applicant Jagdish Kumar Arora and the said Ajay Kumar Arora had filed complaint against Vinod Raghuvanshi for offence u/S. 420, 467, 468, 471 and 120-B of the Indian Penal Code. On the said complaint the Chief Judicial Magistrate, Bhopal issued process against the said Vinod Raghuvanshi. It is in this background according to the applicants at the instance of Vinod Raghuvanshi the FIR has been lodged against them. 11. The further case of applicant Jagdish Arora is that in identical incident and seizure offence u/S. 420 of the IPC has been registered at police station Manpur as Crime No. 274/08. In the said matter also the allegations are identical and in that case in M.Cr.C. No. 271/08 the Additional Sessions Judge, Mhow allowed the applicant Jagdish Arora's application for anticipatory bail u/S. 438 of the CrPC vide order date 17.7.2008 and granted anticipatory bail to him. According to the applciants co-accused Ajay Arora has been granted the bail u/S. 439 of CrPC vide order dated 1.11.2008. 12. According to the applciants co-accused Ajay Arora has been granted the bail u/S. 439 of CrPC vide order dated 1.11.2008. 12. It is further stated that the applicants are not involved in day to day affairs of the company like production, sales and operation and all the affixture of hologram is done under the strict control and supervision of the officials of the Excise Department who are posted at the Distillery and in the circumstances the implication of applicants without taking any action against the officials of the Excise Department on duty at Distillery clearly demonstrates that Vinod Raghuvanshi has lodged the FIR only to humiliate the applicants. 13. Smt. Rashmi Pandit, learned DGA opposed the applications for grant of anticipatory bail by contending that the applicants are involved in the serious offence of evading the revenue of the government. The holograms which were found on the seized bottles were of subsequent dates then the date of manufacture marked on the seized bottles. 14. Having considered the contentions raised by learned counsel for the parties and after perusal of the case diary in my considered view the applicants have made out the case for grant of anticipatory bail. The inquiry report dated 12.7.2008 submitted by the high officials of the Excise Department reveals that the holograms of seized bottles are genuine and are not fake. The committee recorded a finding that the holograms are genuine and are not fake. In the cases where the hologram were found to be proper and only the discrepancies in the date of hologram and the date of manufacture of liquor was noticed the committee recommended for issuance of the show cause notice to collect factual position. However against the applicants no show cause notice has been issued as yet, and instead FIR has been lodged. It is also noticed that in the cases in which the hologram are found to be forged penalty was imposed and no FIR was lodged. Thus it is prima facie revealed that since a complaint has been filed against Vinod Raghuvanshi by Jagdish Arora and Ajay Arora before the Chief Judicial Magistrate, Bhopal and summons was issued to him for his appearance on 14.5.2008, the FIR has been lodged at the instance of Vinod Raghuvanshi. 15. Thus it is prima facie revealed that since a complaint has been filed against Vinod Raghuvanshi by Jagdish Arora and Ajay Arora before the Chief Judicial Magistrate, Bhopal and summons was issued to him for his appearance on 14.5.2008, the FIR has been lodged at the instance of Vinod Raghuvanshi. 15. Having regard to the aforesaid facts and circumstances more particularly the nature of accusation against the applicants, findings of the high official committee of the Excise Department, lodging of the FIR at the instance of Vinod Raghuvanshi without issuing show cause notice as recommended by the high official committee and in the background fact that a case has been registered against Vinod Raghuvanshi at the instance of applicant Jagdish Kumar Arora and Ajay Kumar Arora, I am of the view that the applicants have made out a case for grant of anticipatory bail. Accordingly both the applications are allowed. 16. The applicants in the event of their arrest be released on bail on their furnishing a personal bond in the sum of Rs. One Lakh each with one surety each in the like amount to the satisfaction of the Arresting Officer for their further appearance as and when directed. The applicants shall make themselves available for interrogation by police officer as and when required and they shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer. The applicants shall not leave India without prior permission of the Court. 17. Needless to say that the observations made herein above are only for the purpose of deciding these bail applications.