IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SUBODH ABHYANKAR ON THE 17^th OF NOVEMBER, 2022 MISC. CRIMINAL CASE No. 53379 of 2022 BETWEEN:-

NILESH S/O ISHWARLAL JAISWAL, AGED ABOUT 49 YEARS, OCCUPATION: BUSINESS 556, GOSWAMI TUSLIDAS MARG, SANAWAD, DISTRICT KHARGONE (MADHYA PRADESH)

.....PETITIONER (BY SHRI S.K. VYAS, SENIOR ADVOCATE WITH HARSHWARDHAN PATHAK, ADVOCATE)

AND THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THROUGH POLICE STATION KARAHI, DISTRICT KHARGONE (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI MUKESH KUMAWAT, GOVT. ADVOCATE)

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This application coming on for order this day, the court passed the following:

ORDER

They are heard and perused the case diary.

This is the applicant’s first application under Section 438 of the Cr.P.C.for grant of anticipatory bail to the application.

The applicant is apprehending his arrest in connection with Crime No.27/2022 registered at Police Station–Karahi, District- Khargone (MP) for offence punishable under Section 34(2) of the M.P.

Excise Act.

The First Information Report regarding the aforesaid offence was lodged on 31.1.2022 at 4.22 a.m. It is alleged that the Police apprehended a pick up vehicle bearing registration No.MP-11 G-1261 going from Mandleshwar to Badwa and a white Swift Car bearing registration No.MP 10-CA- 8871 was also escorting the aforesaid pick up vehicle. When the Police tried to stop the said vehicle, although the driver of the Car fled from the spot by speeding his car , however, the loading vehicle was stopped in which the co-accused Kalu and Rohit were sitting and according to them, in the said Swift car, Manoj Verma and Jitendra were sitting. It was found that in the pickup vehicle 1067.52 bulk liquor of various brands was being transported which contained in total 108 cartons. In their memo prepared under Section 27 of the Evidence Act, the co-accused Kalu and Rohit have also informed that the aforesaid liquor was delivered to them in a white Mahindra Thar bearing registration No. MP 10-CA-3507 and from the said Thar they unloaded the 108 cartons of liquor and loaded in the pickup vehicle. Co-accused Kalu has also informed that the said Mahindra Thar usually parked at Kasrawad English Wine shop. During the investigation, it is found that the said Thar is registered in the name of the present applicant. In the Police prativetan, it is mentioned that the present applicant is also licensee liquor vendor and on the date of the incident, the co-accused persons and the applicant Nilesh Jaiswal were continuously in contact. The C.D.R. regarding which is also seized.

Shri S.K. Vyas, learned senior counsel appearing for the applicant has submitted that the applicant has never been involved in any liquor business and is not the licensee of any liquor shop. It is further submitted that even otherwise in the Thar Jeep the 108 cartons of liquor cannot be loaded, so there is no question of the said liquor being unloaded from it and loaded in the pickup vehicle as claimed by the co- accused persons. It is further submitted that even otherwise the memo prepared under Section 27 of the Evidence Act has no evidentiaryvalue, so far as it relates to the overt act of the other accused persons. Shri Vyas has also submitted that there is no certificate filed under Section 65 B of the Evidence Act to demonstrate that the telephone records are authentic.

Counsel for the respondent/State, on the other hand opposed the prayer.

On due consideration of the rival submissions, perusal of the case diary it is found that the date of incident is said to be on 31.1.2022 and as per the case diary, the Mahindra Thar bearing registration No.MP 10 CA 3507 is registered in the name of the present applicant Nilesh Jaiswal only. It is true that the name of the present applicant does not find place in the FIR and it has surfaced only in the memo prepared under Section 2