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Himachal Pradesh High Court · body

2009 DIGILAW 1245 (HP)

PAWAN KUMAR v. STATE OF HIMACHAL PRADESH

2009-12-09

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, J.(Oral)-Pawan Kumar petitioner has filed Cr.MP(M) No.1041 of 2009 under Section 438 Cr.P.C.for releasing him on bail in FIR No. 143 dated 26.11.2009 registered at Police Station, Gagret under Section 201 IPC and under Section 61 of the Punjab Excise Act as applicable to the State of Himachal Pradesh, he has also filed Cr.MP(M) No.1042 of 2009 under Section 438 Cr.P.C. for releasing him on bail in FIR No.144/09 dated 26.11.2009 registered at Police Station, Gagret under Sections 436, 353, 506 IPC. Status report has been filed in both the petitions. This judgment shall dispose of both the petitions. 2. Heard and perused the record. 3. In Cr.P.C. No.1041 of2009, it has been stated that petitioner is an agriculturist and had run liquor vends in the year 20072008. The petitioner had made the first entry in the liquor trade due to which sitting licensees became inimical towards him and he was thrown out of the fray in the next years. The police in connivance with local liquor contractor has registered a false case against the petitioner who is innocent. The alleged recovery of liquor from open cowshed is an attempt of false implication of petitioner in the case. The petitioner is ready to join the investigation. The petitioner apprehends his arrest in view of registration of the case against him. The petitioner had filed pre-arrest bail application in the Court of learned Sessions Judge, Una which was rejected on 30.11.2009. 4. In Cr.MP(M) No.1042 of 2009 almost same grounds for grant of bail have been projected by the petitioner as have been taken by him in Cr.MP(M) No.1041 of 2009. It has been submitted that petitioner is innocent. He cannot put on fire his own cowshed and even by putting the cowshed on fire no offence under Section 436 Cr.P.C. is made out. The allegations of obstructing the police officials in discharging their duties are also false, fabricated and concocted. It has been submitted by learned counsel for the petitioner in both the petitions that investigation is complete and no recovery is to be made from the petitioner. The prayer has been made for grant of bail to petitioner in both the applications. 5. The bail applications have been opposed by learned Addl. Advocate General on the basis of status reports. In Cr,.MP(M) No.1041 of 2009, it has been submitted by learned Addl. The prayer has been made for grant of bail to petitioner in both the applications. 5. The bail applications have been opposed by learned Addl. Advocate General on the basis of status reports. In Cr,.MP(M) No.1041 of 2009, it has been submitted by learned Addl. Advocate General that Head Constable Sanjay Kumar got secret information that petitioner is in possession of illicit liquor which he has kept in a cowshed near his house and petitioner sells illicit liquor illegally to his customers. The information was firm and reliable. It was not possible to obtain warrant due to paucity to time. Pawan Kumar had committed offence under the Punjab Excise Act as applicable to the State of Himachal Pradesh for possessing illicit liquor in his cowshed. Therefore, Sanjay Kumar sent ruka for registration of case. 6. Sanjay Kumar alongwith other members of the party went to the cowshed, Pawan Kumar was holding one canister in one hand and plastic canny in other hand and came out of his house. He put the canister and plastic canny on the ground and pushed Sanjay Kumar. He poured kerosene oil from the canister and canny on the cowshed and put the cowshed on fire by igniting with matchstick. Sanjay Kumar told Pawan Kumar that he had not done right thing by putting on fire cowshed with the help of Kerosene oil. On this Pawan Kumar retorted that he would put on fire the entire police party. Sanjay Kumar tried to apprehend Pawan Kumar but he ran away towards jungle after abusing and extending threats to the police party. Pawan Kumar could not be apprehended. 7. Sanjay Kumar informed the SHO who came on the spot with the additional force and at that time also the cowshed was burning. The SHO with the help of policemen and others with great difficulty controlled the fire. After cooling down from the burnt cowshed 108 plastic bottles Havaldar Whisky, 72 bottles Black Jack XXX Rum, 36 bottles plastic Officer Choice Prestige Whiskey sealed and 263 half burnt empty bottles of liquor were recovered. The sampling and sealing was done and the bottles were taken into possession. It has been stated that earlier FIR No.55/01, FIR No.1/02, FIR No.106/06, FIR No.28 of 2009, FIR No.99/02 were registered against petitioner at Police Station, Gagret under the Punjab Excise Act as applicable to the State of Himachal Pradesh. The sampling and sealing was done and the bottles were taken into possession. It has been stated that earlier FIR No.55/01, FIR No.1/02, FIR No.106/06, FIR No.28 of 2009, FIR No.99/02 were registered against petitioner at Police Station, Gagret under the Punjab Excise Act as applicable to the State of Himachal Pradesh. FIR NO.34/07 under the Punjab Excise Act as applicable to the State of Himachal Pradesh was registered against petitioner at Police Station, Amb, FIR No.23/09 was registered against petitioner at Police Station, Gagret under Sections 147, 149, 451, 323, 506 IPC. In FIR No.28/09 there are allegations against the petitioner that 37 boxes of liquor were recovered from the petitioner from his Tempo. The petitioner is habitual offender under the Punjab Excise Act as applicable to the State of Himachal Pradesh. 8. In the status report in Cr.MP(M) No.1042 of 2009 it has been stated that Inspector/Incharge of Police Station, Gagret had received information from Head constable Sanjay Kumar on mobile phone that Pawan Kumar was in possession of illicit liquor which he had kept in his cowshed and Pawan Kumar had put on fire the said cowshed after pouring kerosene oil. The Inspector/Incharge, Police Station, Gagret went to the spot alongwith others and he put out the fire with the help of police party and others. The statement of HC Sanjay Kumar was recorded under Section 154 Cr.P.C. and there upon the case was registered. It has been stated that Pawan Kumar intentionally put the cowshed on fire so as to destroy the illicit liquor and its evidence. He also pushed the police party. Pawan Kumar is a habitual offender. On these grounds the bail application has been opposed. 9. I have considered the rival submissions made by learned counsel for the parties. The learned counsel for the petitioner in both the cases has submitted that the petitioner is innocent. He has committed no offence. In any case the investigation in the case is complete, no recovery is to be made from the petitioner and therefore, no purpose will be served by detaining the petitioner. On the contrary the stand of the learned Addl. Advocate General is that in past several FIRs have been registered against the petitioner. The petitioner is habitual offender. In any case the investigation in the case is complete, no recovery is to be made from the petitioner and therefore, no purpose will be served by detaining the petitioner. On the contrary the stand of the learned Addl. Advocate General is that in past several FIRs have been registered against the petitioner. The petitioner is habitual offender. In the present case when illicit liquor was found in the possession of the petitioner in his cowshed he obstructed the police party from discharging its duties and also put the cowshed on fire so as to destroy the illicit liquor and its evidence. It has been submitted that petitioner is not entitled to bail under Section 438 Cr.P.C. It has come on record that in past several cases were registered against the petitioner under IPC and the Punjab Excise Act as applicable to the State of Himachal Pradesh. In view of peculiar facts simply because the recovery has been made is not enough to grant bail to the petitioner in both petitions under Section 438 Cr.P.C. As per version of the Investigating Agency the petitioner is involved in several cases. No case is made out for grant of bail, hence petitioner in both the petitions is not entitled to bail under Section 438 Cr.P.C. Accordingly, both the bail applications are dismissed. 10. The observations made in the judgment are for disposal of the bail applications only and the same shall not be construed as expression of opinion on the merits of the case.