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2014 DIGILAW 1467 (MP)

Ashish Rai @ Sonu v. State Of M. P.

2014-11-12

S.K.PALO

body2014
ORDER : Shri A.R. Shivhare, Advocate, for applicant. Ku. Nutan Saxena, Public Prosecutor, for the respondent/State. Shri Awdhesh Singh Bhadhoriya, Advocate, for the complainant. 2. Considered I.A. No. 8702/14 for assisting the prosecution by Kailas Kori said to be social worker and a witness to the seizure memo in this case. A plain reading of section 301, Criminal Procedure Cdoe show that any private party may also assist the prosecution with the permission of the Court. 3. In this regard, the learned counsel for the applicant do not have any objection. Therefore, I.A.8702/14 is allowed. Counsel for Shri Kailash Kori is allowed to assist the prosecution. 4. Heard. This is the first application for bail under section 439 of Criminal Procedure Cdoe filed on behalf of the applicant. 5. Crime No. 819/14 has been registered at Police Pahadgarh for the offence under section 34(2) of M.P. Excise Act. The applicant has been arrested on 15-10-2014. Application filed under section 439 of Criminal Procedure Code was disallowed by 10th A.S.J., Gwalior, vide order dated 17-10-2014. 6. On perusal of the case diary it is found that on 15-10-2014 at about 17.55 P.M., the applicant was found in possession of 36 cartons (each containing 12 bottles) of 55 gold quarter No. 1 Super fine whiskey. The applicant did not possess any licence for the same. The vehicle and the illicit liquor were seized as it is a case of more than 50 bulk liters of illicit liquor. 7. On behalf of the applicant it is submitted that the applicant is possessing a valid hotel bar licence. The applicant's wife Smt. Suman Rai lodged a report on 15-10-2014 in which she has mentioned that the Govt. of M. P. granted licence to her father-in-law Kishore Rai to carry the business of "beer bar" in the year 2006. They have been depositing the tax etc. regularly. The beer bar is being run with observing rules and regulations. Her uncle-in-law is also running a country made liquor shop in Chandan Nagar, Gwalior for which he was allotted a valid licence. Because of certain political opposition and enmity to harass her family members, false information was sent to the Police and the applicant has been implicated falsely. 8. It is also claimed that on the date of incident, some persons entered into the beer bar and misbehaved with her husband. Because of certain political opposition and enmity to harass her family members, false information was sent to the Police and the applicant has been implicated falsely. 8. It is also claimed that on the date of incident, some persons entered into the beer bar and misbehaved with her husband. They alleged that some mischief is being done in the beer bar. He was taken by them. Then his uncle-in-law was also apprehended. In this report a complaint was filed at the office of the Collector, Gwalior, on 15-10-2014. On the same evening the applicant was apprehended for the alleged offence. It is further claimed that the applicant has been granted licence to run the "beer bar" why the applicant would do such mistake. 9. On behalf of the Public Prosecutor, the application is opposed. 10. Learned counsel appearing for Shri Kailash Kori vehemently opposed the application. He has submitted the list of documents in which copies of F.I.R.'s registered as (i) Crime No. 90/14-3-2010 under section 307, 294, 34 of Indian Penal Code. (ii) as Crime No. 29/31-1-2010 under section 323, 294, 506 read with section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (iii) as copy of F.I.R. of Crime No. 551/10-12-2009 under sections 341, 294, 323 of Indian Penal Code, (iv) as Crime No. 50/06-2-2012 under section 307/34 of Indian Penal Code and (v) as Crime No. 75/01.3.12 under sections 147, 148, 149, 307, 302 Indian Penal Code read with section 25/27 of Arms Act. Among all the above crime numbers, the name of the applicant is arrayed as accused in Crime No. 75/01.3.12 only. In all other cases, the applicant has not been named. 11. A copy of application is addressed to Police Station Bahodapur dated 25-10-2014 has been filed by Kailash Kori in which it is alleged that the applicant Sonu and his relatives are pressurizing Shri Kailash Kori for filing an affidavit. 12. The learned counsel for Shri Kailash Kori argued at length and submitted that the applicant is habitual in distributing the liquor during election time and also earning money by illegal means. Therefore, his application for bail be rejected. 13. 12. The learned counsel for Shri Kailash Kori argued at length and submitted that the applicant is habitual in distributing the liquor during election time and also earning money by illegal means. Therefore, his application for bail be rejected. 13. The basic rule may perhaps be tersely put as "bail not jail" except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating utter troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court. 14. In Jayendra Saraswati Swamigal vs. State of Tamil Nadu, 2005 (2) SCC 13 , Hon'ble the Supreme Court has observed that, "Bail is not to be withheld merely as a punishment, and the requirements as to bail are merely to secure the attendance of the accused at the trial. The test is to be applied by reference to the following considerations amongst others; (1) the nature of the accusation; (2) the nature of the evidence in support of the accusation; (3) the severity of the punishment which conviction will entail; (4) the character of the sureties, that is to say, whether they are independent or indemnified by the accused; (5) the character and the behaviour of the accused. Any allegation that the accused is tampering or attempting to tamper with witnesses and thereby obstructing the course of justice would be a very cogent ground for refusing bail." 15. Crime No. 75/1-3-2012 is registered against the applicant. Counsel for the applicant submitted a copy of M.Cr.C. No. 8287/12 in which this Court vide order dated 29-11-2012 has ordered the Superintendent of Police, Gwalior, to submit a report in pursuance to the order dated 23-10-2012 Annexure A-1 to Inspector General of Police, CID and for further investigation to be conducted by the CID. 16. In the light of the above and keeping in view that the applicant's wife has lodged a report on 15-10-2014 the Office of the Collector, Gwalior, prior to the applicant apprehended on the same day for regular bail is allowed and it is directed that the applicant shall be released on bail on his furnishing a personal bond in a sum of Rs. 1,00,000/- (Rs. 1,00,000/- (Rs. One Lakh only) with one solvent surety in the like amount to the satisfaction of the trial Court for securing his presence before the said Court on all the dates of hearing fixed in this regard during trial. 17. This order will remain operative subject to compliance of the following conditions by the applicant :- 1. Applicant will not influence the prosecution witnesses. 2. Applicant will help the progress of the trial. 3. Applicant will not indulge in any similar offence during the course of trial. 4. If at all the applicant is found to breach any of the above conditions, the learned trial Court would be at liberty to reconsider on the question of bail. 18. Certified copy as per rules.