IMPORTANT POINT
The court established that anticipatory bail cannot be granted under section 59-A of the M.P. Excise Act when a prima facie case is made out against the accused.

ORDER :

Prem Narayan Singh, J.

This is the first bail application filed on behalf of the applicant under section 438 of the Code of Criminal Procedure for grant of anticipatory bail. The applicant is apprehending his arrest in relation to Crime No. 820/2023, registered at Police Station- Industrial Area Dewas, District Dewas for the offence under section 34(2) of M.P. Excise Act, 1915.

2. As per prosecution story, a truck bearing registration No. MP 09 GG 149 intercepted, from which 5759 quarters (2169 bulk liters) of foreign liquor was seized from possession of the applicant.

3. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in this case. It is further contended that the applicant has been made accused in the present case only on the basis of Statements co-accused recorded under section 27 of the Evidence Act, there is no sufficient evidence against the applicant to connect him with the offence. 5759 quarters (2169 bulk liters) of foreign liquor was recovered from the truck and two accused persons Kanu and Sunil were arrested and in the statement recorded under section 27 of Evidence Act, they deposed that the present applicant loaded the illicit liquor in the vehicle. The applicant was working in a particular liquor shop and loaded the alleged liquor in the vehicle. However, as per the information obtained from RTI, District Excise Officer has stated that the batch number of the liquor said to be seized from the truck was not allotted to the liquor shop in which the present applicant was working. Even if the allegation of prosecution are taken to be true at their face value and accepted in their entirety except memo under section 27 of Evidence Act, there is nothing on record to connect the present applicant in the present crime.

4. Learned counsel relied upon the judgments passed in the cases of Naresh Kumar Lahria vs. State of M. P., 2004(4) MPHT 205; ; Pramod Sethi vs. State of M.P., 2023 SCC Online 3128; ; Prakash Singh vs. State of M.P., (2023) SCC Online MP 5893; ; Subhash Kashinath Mahajan vs. State of Maharashtra, (2018) 6 SCC 454; ; Sushila Agarwal vs. State (NCT) of Delhi, (2020) 5 SCC 1 (Constitution Bench); ; Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 (Constitution Bench) in support of his contentions that when the applicant is implicated only on the basis of memo of co-accused persons recorded under section 27 of Evidence Act, prima facie case cannot be made out then there is no absolute bar in granting anticipatory bail. Relying upon the judgment of Hon’ble Supreme Court in the case of Prathvi Raj Chouhan vs. UOI, (2020) 4 SCC 727; counsel contended that if prima facie case cannot be made out, provisions of section 18 and 18-A of SC/ST Act regarding bar in granting anticipatory bail would not apply. Under these circumstances, he prays for grant of anticipatory bail to the applicant.

5. Learned counsel for the respondent/State opposes the prayer and prayed for its rejection by submitting that custodial interrogation of applicants is necessary. Provisions of anticipatory bail are not applicable for offences under section 34(2) of M.P. Excise Act. With regard to the batch number is concerned, the seized liquor is illicit one, the batch number cannot be same as that of the allotted number. So also, looking to the quantity of liquor, the applicant is not entitled for any relief from this Court.

6. I have heard the counsel for the parties and perused the case diary.

7. So far as the judgments placed reliance by counsel for the applicant i.e. Naresh Kumar Lahria (supra), Pramod Sethi (Supra), Prathvi Raj Chouhan (supra) are concerned, the facts of these cases are different to the facts of this case, hence, they are distinguishable. The law laid down by Hon’ble Apex Court celebrated judgments passed in the case of Subhash Kashinath (Supra), Sushila Agarwal (Supra), Gurbaksh Singh Sibbia (Supra), are taken into consideration by this Court while deciding