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2022 Supreme(HP) 170
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Harish Kumar Alias Rishu, S/o Sh. Parmanand - Appellant
Vs.
State Of Himachal Pradesh Through Principal Secretary (Home To The Government Of Himachal Pradesh, Shimla - Respondent
Criminal Miscellaneous Petition(Main) Nos. 872, 873 & 848 of 2022
Decided On : 09-05-2022
Advocate Appeared:
For the Appellant :Shri Vinod Thakur, Advocate
For the Respondent:Shri P.K. Bhatti & Shri Bharat Bhushan Additional Advocate Generals With Shri Kunal Thakur, Deputy Advocate General
Point of Law : Grant of Bail - No past criminal history is attributed to the petitioners.
Headnote:
Penal Code, 1860 - Sections 420, 467, 468, 471 and 120-B- Himachal Pradesh Excise Act- Sections 39(1)(a), 39(2), 40, 44- Grant of Bail - Search and Seizer of liquor -Spurious liquor without license have criminally conspired with a motive to sell -Petitioners are permanent resident of State of Himachal Pradesh and there is no likelihood of their absconding or fleeing from the course of justice. No past criminal history is attributed to the petitioners. [Para 14]
Finding of the Court:
Though the samples of liquor have been opined to be unfit for human consumption, but it is not the case of respondent-State thatany consumer of such product, after having purchased the liquor fromliquor vend where petitioners Harish Kumar @ Rishu and Kartar Singh@ Karan were salesmen or the "Ahata" run by petitioner Sunil Sharma had suffered any ailment, physical discomfort or death-Petitioners are in custody since 25.01.2022. Their further custody will not yield any fruitful purpose. Pre trial incarceration cannot be ordered as a matter of rule. The trial of the case is likely to take considerable time before conclusion.
Result: Petitions allowed
ORDER :
All these petitions are being decided by a common order, as common questions of law and facts are involved.
2. The case as setup by respondent is that on 23.01.2022, the police officials of Police Station Bhoranj, received a secret information that Harish Kumar @ Rishu ( Petitioner in Cr.MP(M) No. 872 of 2022), working as salesman at liquor vend Bassi, had concealed boxes of country liquor "Santra VRV FOOLS" under culvert near village Plassi, which could be of spurious nature. "Rukka" was sent to the police station for registration of FIR and the police party immediately left for spot. On identification of petitioner Harish Kumar @ Rishu, 22 boxes of country liquor "Santra" brand with "VRV FOOLS" printed on each bottle were recovered and seized from underneath a culvert. During investigation, petitioner Harish Kumar @ Rishu disclosed that he was working as a salesman in the liquor vend at Bassi, which belonged to Neeraj Thakur and said Neeraj Thakur was brother-in-law of the person, accused in a case registered at Police Station Sundernagar, in respect of deaths of persons due to consumption of spurious liquor. According to petitioner Harish Kumar @ Rishu, on 18.01.2022, at about 9:30 am, Ashish Soni, who was working as salesman as also the driver for Neeraj Thakur had unloaded 20 boxes of liquor "Santra VRV FOOLS" at his liquor vend without valid pass. He further disclosed that on 19.01.2022, Contractor Neeraj Thakur had informed him telephonically that since some persons had died at Sundernagar after consuming liquor "Santra VRV FOOLS", so the liquor of said brand should be concealed. He, accordingly loaded 12 unsold boxes of liquor "Santra VRV FOOLS" in his vehicle and visited Kartar Singh @ Karan (Petitioner in Cr.MP(M) No. 848 of 2022) who was working as salesman at liquor vend "Chahab", loaded 10 more boxes of the same brand of liquor and thereafter both of them concealed the boxes at the place from where it was recovered by the police.
3. Sunil Sharma (Petitioner in Cr.MP(M) No. 873 of 2022) was stated to be running an "Ahata" ( bar attached with retail liquor vend) at place Sulagwan, Tehsil Bhoranj, District Hamirpur, H.P. and is also stated to have criminally conspired with a motive to sell the spurious liquor without license.
4. The investigation is stated to be complete and report under Section 173 Cr.P.C. has been filed in the Court against petitioners Harish Kumar @ Rishu, Kartar Singh @ Karan and Sunil Sharma besides other co-accused Ashish Soni, Kuldeep, Rajiv Kumar, Neeraj Thakur and Gaurav Minhas, under Sections 39(1)(a), 39(2), 40, 44 of Himachal Pradesh Excise Act and Sections 420, 467, 468, 471 and 120-B of Indian Penal Code.
5. The allegations against the accused persons arrayed in above noted case are that they criminally conspired with each other to sell spurious liquor and in such process committed offences of fraud and forgery etc.
6. Petitioners have approached this Court for grant of bail under Section 439 of Cr.P.C. in above noted case for the second time. Their earlier bail applications were rejected by this Court vide order dated 16.03.2022, as the investigation was still continuing. Petitioners Sunil Sharma, Kartar Singh @ Karan and Harish Kumar @ Rishu had filed bail applications, respectively, bearing Cr.MP(M) Nos. 429, 495 and 507 of 2022. The samples of such liquor had been sent for chemical examination. Keeping in view the entirety of the circumstances as prevailed at the stage of consideration of earlier applications of petitioners, such applications were rejected at that stage.
7. Petitioners have contended that the investigation qua them has already been completed and nothing incriminating has been found against them. As per petitioners, Harish Kumar @ Rishu & Kartar Singh @ Karan, they were simply the salesmen working under Contractor Neeraj Thakur and had obeyed the dictates of their master only. Petitioner Sunil Sharma has contended that he was running license "Ahata" (Bar attached wi
