Pankaj Samundre Vs. State of Chhattisgarh - Court Judgment

1. Apprehending arrest in connection with Crime No.324/2014, registered in Police Station Dongargarh, District Rajnandgaon, Chhattisgarh for commission of offence punishable under Section 34(2) of the Chhattisgarh Excise Act,1915 (for short, “the Act, 1915”), the applicant herein has filed this application under Section 438 of Cr.P.C. for releasing him on anticipatory bail.

2. The case of the prosecution, in brief, is that the applicant and co­accused Suraj were found carrying 17.28 Bulk liters of country made liquor in the motorcycle on 01.09.2014 without authority of law which was seized from the co­accused Suraj.

3. Shri Awadh Tripathi, learned counsel appearing for the applicant would submit that no ingredients of Section 34(1)(a) of the Act, 1915, is available against the applicant in the first information report/complaint as he has falsely been implicated in the case, and therefore, bar of anticipatory bail as provided under Section 59­A (i) of the Act, 1915, is not attracted and he is entitled for anticipatory bail.

4. Per contra, Shri Neeraj Jain, learned Govt. Advocate appearing for the State while opposing the bail application would submit that the present applicant and co­accused Suraj were found transporting 17.28 bulk liter of country made liquor without authority of law in newly purchased motorcycle owned by present applicant and on raid being conducted by the police party, the present applicant ran away from the spot and said liquor was seized from the possession of co­accused Suraj and investigation is at initial stage and the ingredients of Section 34(1)(a) of the Act, 1915 is available on the record, and as such, Section 59­A (i), which bars entertainment of application for anticipatory bail in respect of a person accused of an offence covered by clause (a) of sub­section (1) of Section 34 of the Act, 1915, is attracted as the quantity of liquor found in detention of such offence is 17.28 bulk liter i.e. exceeding 5 bulk liter, and as such, the applicant is not entitled for anticipatory bail.

5. I have heard learned counsel appearing for the parties and considered their rival submissions made therein and perused the case diary with utmost circumspection.

6. After hearing learned counsel appearing for the parties and after perusal of case diary, the following facts are apparent on the face of records:

* That, on 01.09.2014, the police party seized the motorcycle and also seized 17.28 bulk liters of country made liquor from the possession of co­accused Suraj.

* That, seized motorcycle is purchased by the present applicant on 24.11.2013 from Yuvraj Motors, Dongargarh, Rajnandgaon.

* That, the present applicant has been named in the FIR recorded on 01.09.2014 alleging that on noticing the police party, the present applicant ran away from the spot and liquor in question was seized from the possession of co­accused Suraj.

* That, seized article was found to be liquor on examination.

* That, steps have been taken for confiscation of seized vehicle.

7. At this stage, it would be proper to notice certain statutory provisions, particularly, Section 34 and 59­A(i) of the Act, 1915, which reads as under:

"34. Penalty for unlawful manufacture, transport, possession, sale etc.­ (1) Whoever, in contravention of any provisions of this Act, or of any rule, notification or order make 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; or

(c) cultivates bhang; or

(d) taps any toddy producing tree/or draws toddy therefrom;or

(e) constructs, or works any distillery, brewery or wintnery;or

(f) uses, keeps or has in his possession any material, still utensil, implement, or apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy;or

(g) removes any intoxicant from any distillery, brewery, wintnery or warehouse licensed, established or contained under this Act,

(h) bottles any liquor;

shall subject to the provisions of subsection (2), be punishable for every such offence with imprisonment for a term not less than six months which may extent to two years and fine which shall not be less than twenty thousand rupees but which may extend to two lac rupees:

Provided that when any person is convicted under this Section of any offence for a second or subsequent time he shall be punishable for every such offence with imprisonment for a term not less than one year but which may extend to five years and with fine which shall not be less than twenty thousand rupees but which may extend to two lac rupees.

“Section 59­A. Certain offence under the Act to be non­bailable.­ Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (No. 2 of 1974) or Section 59 of the Act,­

(i) no application for an anticipatory bail shall be entertained by any Court in respect of a person accused of an offence punishable under Section 49­A 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 five bulk litres."

8. A plain perusal of Section 59­A(i) of the Act, 1915 would show that no application for an anticipatory bail shall be entertained by any Court in respect of a person accused of an offence not 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 five bulk litres.

9. The constitutional validity of Section 59­A (i) of the Act, 1915 came up for consideration before Division Bench of MP High Court in case of Naresh Kumar Lahria v. State of MP and Others (2004(4) MPHT 205(DB)), in which, said provision has been held to be intra vires, and it has been observed as under:

“22. Submission of Mr. Chaturvedi is that there is no reason to ostracise the applicability of Section 438 of the Code by operation of law. The main crux of the argument is that the liberty of a person is affected and there is no guidance in the provision. We shall first take up the issue of lack of guidance. On a perusal of the provisions, it is clear as noon day that the said provision deals with a different spectrum altogether. It deals with the accused who has committed the offence under Section 49­A of the Act or Section 34 (a) or 34 (b) of the Act. Each of the provision in our considered opinion has the guidance. Sections 34 (a) and 34 (b) clearly postulate that a person who trades in liquor without licence and found in possession of more than 50 bulk of litres is covered in the net of Section 59. We have referred to the number of decisions to show no one can trade in liquor without licence but the Legislature has not provided that anyone in possession of liquor would not be entitled to the benefit of the provision of Section 438 of the Code, but the rider is there as the quantity has been provided. Nobody is expected to carry 50 bulks of liquor for personal consumption. It can not be thought that a person who carries liquor for personal use would carry 50 bulks of litre of liquor. Thus the quantity makes a distinction. Section 49­A deals with different situation altogether. It is concerned with spurious liquor. Any one who deals with spurious liquor in fact deals with poison meant for collective. Both the provisions in our considered view constitute a separate and special class of offence. The liquor tragedy which bring a chill in the spine of the collective can not be ignored. The death of poor people due to this poison can not be totally brushed aside, An individual may claim liberty on the backdrop of the fundamental right, but no one has the right to trade in this manner to affect the interest of the collective. The major chunk of population of the State of M.P. consist of rural tribal and illiterate people. Number of crimes arc committed because of consumption of liquor. The crimes also take place due to quarrel and fight over illicit liquor. Some people try to accumulate money in trading illicit liquor as they do not intend to pay the consideration money as required under the Act. The State exchequer is affected. Quite apart from the above the spurious liquor becomes an apparent poisonous substance. The agony of the situation has been vividly described by Hansaria, C.J. (as His Lordship then was) in the case of Jan Ranjan Das (supra). The background of trade, social milieu, the conduct of the people, the loss of revenue, the attitude of these traders can never be ignored or marginalized. In this context we may refer with profit to the decision rendered in the case of Kartar Singh v. State of Punjab, (1994) 2 JT SC 423, wherein the Apex Court was dealing with the applicability of the Section 438 of the Code in respect of Terrorist Activities and Disruptive (Prevention) Act, 1987 and in the said case Their Lordships came to hold that Article 21 of the Constitution was not applicable to the offences under the said Act. In the case of Ram Krishna (supra) while dislodging the decision of this Court the Apex Court held that Section 18 of the SC and ST (Prevention of Atrocities) Act, 1989, wherein Section 18 debars the applicability of Section 438 of the Code the Apex Court held that looking to the historical background relating to the untouchability which lead to the commission of such offences against the SC and ST there is justification of apprehension that if the benefit of anticipatory bail is made available to the person who has allegedly committed the offence there is possibility of terrorising of the victim and affect the system. Keeping in view the totality of scenario, Their Lordships held that Section 18 of the aforesaid statute is not violative of Article 21 of the Constitution.”

10. In the later part of judgment, the MP High Court has further held that it would be open to the accused to show that no offence inviting frown of section 59­A(i) is made out as the basic ingredients are absent, and held as under :

“.....Similarly, we have no hesitation in holding that it would be open to a accused to show that no offence inviting frown of Section 59­A (i) of the Act is made out as the basic ingredients are absent. It needs no emphasis that it would be dependent of the fact of each case. We may hasten to state here that merely because Section 438 is not applicable to certain categories of offences, the Court is not bereft of power only because in the FIR the said offences are mentioned. It can not be stated with certitude that if the accused can putforth a case or make out of a case, though the offences which have been mentioned under Section 59­A (i) of the Act do find mention in the FIR, but essentially and factually the case docs not fall under the said provision, irrefragably the Court can entertain the application for grant of anticipatory bail because it is not the nomenclature which should govern the scenario but the real essence.....”

11. In Rajamani v. State of Kerala ( 2013(4) SCC 139), their Lordship's of Supreme Court while emphasizing the need for proper investigation for trafficking in liquor has held as under:

“It is common knowledge that in matters of illegal trade whether in liquor, drugs or other contrabands, the smaller fish only gets caught while the sharks who flourish in such trade often go Scot­free. The arrest and prosecution of the carriers of contrabands is in that view mere lip service to the avowed purpose underlying the legislation. No reason is forthcoming in the present case why no effort was made by the Investigating Agency to expose the racketeers without whose support and involvement such a big consignment of spirit could not have been purchased nor its transportation arranged.”

12. Bearing in mind the statutory provisions contained in Section 59­A(i) of the Act, 1915 and the principles of law laid down in cases of Naresh Kumar and Rajamani (Supra) if the facts of present case are examined, it is apparent that offence has been registered against the present applicant under Section 34(1)(a) of the Act, 1915 as allegation of prosecution is that present applicant along with co­accused Suraj were transporting 17.28 bulk liters of country made liquor without licence and the applicant is the owner of said motorcycle which was seized in connection with crime in question and notice has been sent for initiating confiscation proceeding of the said vehicle. The applicant is also named in the FIR and investigation is at the initial stage and the applicant is not co­operating with the investigation, and as such, it cannot be held that ingredients of offence under Section 34(1)(a) is completely missing, entitling him to release on anticipatory bail and as such the bar encrafted by section 59­A(i) of the Act to entertain application for anticipatory bail is squarely attracted.

13. Therefore, having regard to the above facts and circumstances of the case and further taking into consideration that the State of Chhattisgarh is predominantly inhibited by tribes and illiterate people and number of offence are committed after consumption of liquor, and further considering the ill effect of liquor in society, I am of the considered opinion that it is not a fit case in which the accused/applicant should be extended benefit of Section 438 of the Cr.P.C.

14. Accordingly, the bail application is rejected. No order as to costs.