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2006 Supreme(Chh) 435
2007(1) C.G.L.J. 8
HIGH COURT OF CHHATTISGARH, BILASPUR
Sunil Kumar Sinha, J.
LAKHAN SAHU - Applicant
Vs.
STATE OF CO, Non-applicant
M.Cr.C. No. 2011 of 2006
Decided on : 15-9-2006.
Shri Awadh Tripathi, for the Applicant.
Shri Sushi I Dubey, Govt. Advocate, for the State.
The court established that if the basic ingredients of the offences referred to in section 59-A(i) are not made out, the accused can seek anticipatory bail under section 438 Cr.P.C.
Headnote:
Anticipatory Bail - Chhattisgarh Excise Act, 1915 - Section 34(2) - Section 59-A(i)
Fact of the Case:
The applicant filed for anticipatory bail under section 438 of the Code of Criminal Procedure in connection with a case registered under the Chhattisgarh Excise Act, 1915 for the offence punishable under section 34(2). The allegations were related to the seizure of liquor from the house of a co-accused, with the applicant being implicated based on supplementary statements.
Finding of the Court:
The court found that the basic ingredients of the offences referred to in section 59-A(i) were not made out in the given case, and the applicant was entitled to the benefit of section 438 Cr.P.C. The court also noted that there was no seizure from the possession of the applicant, and the house from where the seizure was made belonged to the co-accused.
Issues: The main issue was the applicability of section 59-A(i) of the Chhattisgarh Excise Act, 1915 and the entitlement of the applicant to anticipatory bail under section 438 Cr.P.C.
Ratio Decidendi: The court held 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, the accused can seek the ambit of anticipatory bail under section 438 Cr.P.C.
Final Decision: The petition for anticipatory bail was allowed, and the applicant was directed to be released on bail upon furnishing a personal bond. The order of anticipatory bail was to remain in force for a period of 60 days, during which the applicant could approach the regular court for grant of regular bail.
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. 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.
