Ashok @ Dhandhan Rajaram Modiya v. State of Gujarat
2025-02-28
HASMUKH D.SUTHAR
body2025
DigiLaw.ai
ORDER : 1. RULE. Learned advocates waive service of notice for the respective respondents. 2. By way of the present application under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being I-C.R.No.11191035241781 of 2024 registered with Naroda Police Station, Ahmedabad for the punishable under Sections 65-(A)(e), 116-B, 98(2) 81 of the Prohibition Act. 3. The brief facts of the case are that on 21/12/2024, the Investigating Officer (I.O.) received secret information that the accused persons were transporting illegal liquor in an Ertiga car bearing registration number GJ-05-JH-3189 without a valid pass or permit. It was alleged that the liquor was ordered by the applicant. Acting on this information, the I.O., along with panch witnesses and a raiding team, reached the location and kept a watch for the suspected vehicle being driven by the accused. As soon as the car arrived, the I.O. attempted to stop it, but the driver refused to comply. Consequently, the I.O. and the raiding party had to use force to stop the vehicle. Upon searching the car, the raiding party found 1,032 bottles of Indian-made foreign liquor worth Rs.2,16,360. The I.O. then took the accused into custody. 4. The learned advocate for the applicant submits that the applicant has no involvement in the alleged offence and has been falsely implicated. A perusal of the FIR reveals that the entire case has been fabricated with the intention of falsely implicating the applicant. There is nothing recovered or discovered from the conscious possession of the present applicant. There is no risk of absconding, and the nature of the allegations does not warrant custodial interrogation at this stage. The applicant is available for investigation and will not evade justice. In view of the above, the applicant prays for the grant of anticipatory bail. 5. The learned APP appearing for the respondent-State has opposed the application and submitted that the applicant is directly involved in the offense. It is submitted that the present applicant is involved in illegal activities. Hence, it is prayed that the present application be dismissed. 6. The Court has to consider the involvement of the accused in the alleged offence and as to whether prima facie it appears that accused has committed an offence, is required to be considered.
It is submitted that the present applicant is involved in illegal activities. Hence, it is prayed that the present application be dismissed. 6. The Court has to consider the involvement of the accused in the alleged offence and as to whether prima facie it appears that accused has committed an offence, is required to be considered. So far as the anticipatory bail is concerned, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant of the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered. 7. Having heard the learned advocates for the respective parties and having gone through the evidence on record, The Court has to consider the involvement of the accused in the alleged offence and as to whether prima facie it appears that On 21/12/2024, the Investigating Officer (I.O.) received secret information about the accused transporting illegal liquor in an Ertiga car (GJ-05-JH-3189) without a valid permit. It was alleged that the liquor was ordered by the applicant. The I.O., along with panch witnesses and a raiding team, kept watch at the location. When the car arrived, the driver refused to stop, forcing the team to intervene. A search of the vehicle revealed 1,032 bottles of Indian-made foreign liquor worth Rs.2,16,360/-. The I.O. then took the accused into custody. 8. In view of the above, it appears that the present applicant has been made Accused No.6 in the FIR. He received 1,032 bottles of contraband liquor worth Rs.8,36,960/- from Accused No.1. During the investigation, his role came to light, revealing that he was in contact with the other accused and had received the said muddamal. 9.
8. In view of the above, it appears that the present applicant has been made Accused No.6 in the FIR. He received 1,032 bottles of contraband liquor worth Rs.8,36,960/- from Accused No.1. During the investigation, his role came to light, revealing that he was in contact with the other accused and had received the said muddamal. 9. Regarding argument of the learned advocate for the applicant that accused Kamlesh, who played a greater role than the present applicant, has been released on bail and, therefore, the present applicant may also be granted bail on the ground of parity, it is noted that Kamlesh has no past antecedents. In contrast, the present applicant has 11 past antecedents of similar offenses, and PASA has been invoked against him twice. While the objective of anticipatory bail is to prevent humiliation and protect personal liberty, the interests of society must also be taken into consideration. 10. Considering the past antecedents of the present applicant, this is not a case of falsely implicating him to humiliate or tarnish his image. Rather, sufficient material, including the CDR, establishes his role in the offense. Therefore, the question of granting parity to the applicant does not arise, as he is a habitual offender who earns money through illegal activities. 11. Considering the applicant’s involvement, this is not a case where discretion should be exercised in his favor. His actions were motivated purely by personal gain, disregarding the larger public interest. If released on bail, there is a strong possibility that he may tamper with evidence and re-engage in similar illegal activities. 12. The accused is suspected of aiding in the crime, and a detailed interrogation of their bank account transactions is needed. The applicant is accused of a buying and supply the contraband liquor in large scale, and custodial interrogation is necessary. The government has opposed granting anticipatory bail, stating it could delay the investigation, tamper with evidence, or influence witnesses. Releasing the applicant would prevent the investigating agency from properly questioning them while in custody. 13. In aforesaid backdrop, custodial interrogation is necessary. When serious offences are disclosed and involvement of an accused prima facie established then, the Court would be loath to lean in favour of grant of pre-arrest bail in absence of any other overriding considerations.
Releasing the applicant would prevent the investigating agency from properly questioning them while in custody. 13. In aforesaid backdrop, custodial interrogation is necessary. When serious offences are disclosed and involvement of an accused prima facie established then, the Court would be loath to lean in favour of grant of pre-arrest bail in absence of any other overriding considerations. The alleged offence is in nature of white collar and socioeconomic offence, this Court is conscious with the safeguards provided under Section 438 of the CrPC and concept of the personal liberty. But herein, I am of the considered of view that, the present offence is committed very smartly which is not just an offence against any individual rather the largest societal interest and public welfare is involved at and in such circumstances, the delicate balance is required to be maintained between two rights one against the personal liberty and second is societal interest. Arrest is part of the process of investigation and intended to secure several purposes.In which the accused may provide information, during the the discovery of material facts and to relevant information. 14. In such circumstances, when investigation is in preliminary stage if, anticipatory bail is granted may hamper the investigation and to collect the material in the more information, and find out the involvements of another person custodial interrogation is also necessary, therefore, keeping in mind the law laid down by the Honourable Supreme Court in the case of (i) State Rep. by the CBI V/s Anil Sharma reported in 1997 (7) SCC 187 , (ii) Adri Dharan Das V/s State of W.B. reported in 2005 (4) SCC 303 and (iii) P. Chidambaram V/s Directorate of Enforcement reported in AIR 2019 SC 4198 , wherein the Hon’ble Supreme Court has held held as follows: "The legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest.
However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. It may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In this view, it cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant/applicant under Article 21 of the Constitution of India. Consequently, power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the prearrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless.
Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Anticipatory bail is to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy". Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation" 15. Further, in the case of Pratibha Manchanda vs The State of Haryana, reported in AIR 2023 SC 3307 , wherein the Hon’ble Apex Court has held in Para 19 as under: 19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome.” 16. Further, keeping in mind Law laid down by the Hon’ble Supreme Court in the case of Siddharam Satlingappa Mhetre V/s State of Maharashtra and Others reported in (2011) 1 SCC 694 . Herein, I have gone through the material available against the accused very carefully and it appears that herein, no complaint has been made with view to humiliating or tarnish the image of the present applicant. Even in Jai Prakash Singh V/s State of Bihar and another, reported in (2012) 4 SCC 379 , Honourable Supreme Court pleased to hold: "Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore.
Even in Jai Prakash Singh V/s State of Bihar and another, reported in (2012) 4 SCC 379 , Honourable Supreme Court pleased to hold: "Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty." 17. The object of anticipatory bail is that person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. In present case, no any such sort of allegation or bias is found out it is needless to say that order of pre arrest bail is not a passport to the commission of trial nor a shield against any serious accusation, which adversely affects the society as the alleged involvement of lage amount is yet to be traced out and amount has been siphoned and so far as it is an economic offence and there is involvement of money, applicant required to be visited class apart. In this regard the Court deems it fit to refer to the judgment of the Hon’ble Apex Court in the case of State of Gujarat vs. Mohanlal Jitamalji Porwal, reported in (1987) 2 SCC 364 , the Court in para 5 has observed that: “The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner with-out fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest.” 18.
This Court is of the considered view that if the present accused is equipped with protective order, it would obviously adversely affect the case of the prosecution and the qualitative investigation as applicant is having trained legal mind and he will tamper with evidence and witnesses of prosecution and here two accused are still out of reach, who are directly connected with the present accused and other co-accused. 19. In the above facts and circumstances and considering the observations on the legal aspect of the matter, this Court has absolutely no doubt that if applicant is equipped with such an order before he is interrogated by the Police, it would greatly harm the investigation and would impede the prospects of unearthing all the ramifications involved in the conspiracy. 20. Having considered nature and seriousness of the charge, prima facie involvement of accused and possibility of tempering with evidences, it does not appear to be just and proper to exercise the discretion in favour of the applicant and accordingly, the application for anticipatory bail is dismissed.Rule discharged.