Anticipatory bail granted due to lack of evidence against the applicant and concerns regarding the validity of co-accused statements.

ORDER :

RULE. Learned APP waives service of notice of Rule for and on behalf of the respondent – State of Gujarat.

1. By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11198053240546 of 2024 registered with Talaja Police Station, District Bhavnagar for the offences under Sections 65(a), 65(e), 116-B, 98(2) and 81 of the Prohibition Act.

2. Learned advocate for the applicant submits that the applicant has nothing to do with the offence and has been implicated on the basis of statement of accused No.1 before the police and even the said statement is obtained by the police agency by applying third degree on accused No.1 for which independent proceeding against the police authority has been initiated by the learned Magistrate. Further, nothing is found from the conscious possession of the present applicant and even he was not present at the scene of offence when the contraband liquor was recovered. Even if the allegation made in the FIR is accepted as it is then also on behalf of present applicant, accused No.1 has received the contraband liquor from accused No.3 and except this there is no any allegation against the present applicant and hence, now nothing remains to be recovered or discovered from the present applicant and therefore, custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail.

3. Learned Additional Public Prosecutor appearing on behalf of the respondent – State has opposed grant of anticipatory bail on the ground that applicant is having allegation against police authority of having subjected accused No.1 to third degree is concerned, same is far from truth and independent proceeding is going on. In the present case, custodial interrogation is required and therefore, he has requested to dismiss the present application.

4. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects.

(1) Offence is not punishable with life imprisonment or death penalty;

(2) Nothing is recovered from the conscious possession of the applicant and even the applicant was not present at the time when the contraband liquor was recovered;

(3) The allegation in the FIR is that accused No.1 received the contraband liquor from accused No.3 on behalf of accused No.2 and based on the statement of co-accused, applicant is arraigned as accused. It is true that there is no bar to conduct further investigation on the basis of statement of co-accused as co-accused brought the clue to the investigation but herein clear cut allegation against the police authority is that accused has not voluntarily stated the name of present applicant and at the instance of police, he has disclosed the applicant’s nam