Gujarat High Court
Nilesh Ambalal Makwana vs State Of Gujarat on 26 July, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/8751/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 8751 of 2017
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NILESH AMBALAL MAKWANA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MS. SAMATA V PATEL, ADVOCATE for the Applicant(s) No. 1
VRAJLAL C PATEL, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN, PP with MS SP PATHAK, APP for the Respondent(s) No.
1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 26/07/2017
ORAL ORDER
1. This is an application under Section 439 of the Code of Criminal Procedure in connection with the offence registered as I-C.R. No. 84 of 2016 registered with Kadodara GIDC Police Station under Sections 302, 307, 407 120(B) and 114 of the Indian Penal Code and Sections 65A, 66(1), (B), 68, 81 and 83 of the Gujarat Prohibition Act, 1949 ('Prohibition Act' in brief).
2. A complaint is given by one Lalabhai Hirabhai Khengar against the present applicant and others, namely Reenaben W/d. Sanjaybhai Ishwarbhai Rathod, Ramu Sarbadin Yadav and others for the offences referred herein above.
3. The complaint, in respect of an incident Page 1 of 9 HC-NIC Page 1 of 9 Created On Tue Aug 15 18:22:57 IST 2017 R/CR.MA/8751/2017 ORDER that took place on 07.09.2016, came to be lodged on 13.09.2016.
4. After once the charge-sheet is filed in terms of the report under Section 173 of the Code of Criminal Procedure (for short, 'the Code'), the present applicant has preferred this application for grant of regular bail.
5. It is the case of the prosecution that on account of drinking of spurious liquor, some of the persons not only sustained injuries and lost their eyes, but, a few of them have also lost their lives.
6. Learned Advocate for the applicant has urged that the case of the prosecution against the applicant is that some of the persons drunk country-made liquor at the residence of the present applicant and that of the co-accused, Reenaben. It is her case that he has no antecedents. It is, further, her say that the place, from where the alleged spurious liquor containing methanol was being sold, does not belong to him. It was the co-accused, Rinaben, who was doing selling.
7. Learned Advocate also has made a request that at the best, considering his history, the case of the applicant would fall of his arrest on Page 2 of 9 HC-NIC Page 2 of 9 Created On Tue Aug 15 18:22:57 IST 2017 R/CR.MA/8751/2017 ORDER account of the selling of liquor by the co-accused and he has not role to play in the entire episode.
8. This application is strongly opposed by the learned PP, Mr. Amin, appearing with learned APP, Ms. Pathak, who has urged this Court that this is being a case of many people having lost their lives in a hooch tragedy, this Court may not exercise the discretion in favour of the applicant. It is pointed out to this Court that there has been an insertion of Section 65A in the Gujarat Prohibition Act, which makes a manufacturer or the person working in any brewery or selling or using or keeping or transporting or being in possession of spurious liquor, known as 'Lattha', to be visited with the imprisonment of 10 years. Moreover, in the event of any death occurring due to consumption of spurious liquor, a person can be punished with death or imprisonment for life. He, further, pointed out to this Court that, at this stage, the role of the present applicant need not be distinguished, as abetment in the commission of the offence also shall have to be viewed very seriously. Some of the decision of this Court in relation to the accused of hooch tragedy of the earlier years also have been explained by the learned Public Prosecutor that on account of the delay that had occurred in proceeding with the trial, the Court had exercised discretion in favour of those persons. He urged Page 3 of 9 HC-NIC Page 3 of 9 Created On Tue Aug 15 18:22:57 IST 2017 R/CR.MA/8751/2017 ORDER that in the instant case, the case is already committed to the Court of Sessions and the trial is likely to commence. He, therefore, has urged that even the distinction of his case on the ground of selling lattha would not warrant exercise of discretion in his favour. He has taken this Court through the Act and the papers of charge-sheet to point out, as to how illegaly methanol had been obtained by those, who have manufactured and supplied lattha to the present applicant and the co-accused, Reenaben, who according to the prosecution lives under the same roof.
9. Having heard the learned Counsels on both the sides and also having thoroughly gone through the material emerging from the record and also on close scrutiny of the papers of charge-sheet on account of the tragedy being serious in nature, this Court notices that prima facie, as emerging from the report of the Forensic Science Laboratory, the spurious liquor, which led to death of about 21 persons and injury to about 7 persons, was on account of use of methanol, which would make the country-made liquor, spurious liquor.
10. This Court is also conscious of the fact that Section 65A of the Prohibition Act has been introduced in the Statute vide Gujarat Act No. Page 4 of 9 HC-NIC Page 4 of 9 Created On Tue Aug 15 18:22:57 IST 2017 R/CR.MA/8751/2017 ORDER 29/2011 on 02.12.2011, which makes a manufacturer or the person working in any brewery or selling or using or keeping or transporting or being in possession of spurious liquor, known as 'Lattha', to be visited with the imprisonment of 10 years as per Section 23A of the Prohibition Act. Further, in the event of death occurring of any consumer due to consumption of spurious liquor, the accused person can be punished with death or imprisonment for life.
11. As can be noticed from the definition of 'Lattha', it would also mean containing methanol or other poisonous substance, which would cause harmful effect to the human body or cause death of a person.
12. As per the case of the prosecution, it is the presence of the substance, namely methanol, in the liquor supplied and consumed by the victims, which prima facie is the cause of death and injuries to the victim.
13. In this factual background, this Court is required to consider the application of the applicant for regular bail, who is allegedly involved in selling of spurious liquor, to the victims, who are hailing from very poor economic strata and belong to the labour class. It is to be noticed that the applicant, who is alleged of Page 5 of 9 HC-NIC Page 5 of 9 Created On Tue Aug 15 18:22:57 IST 2017 R/CR.MA/8751/2017 ORDER selling spurious liquor to the victims, according to the prosecution, is staying under the same roof with the co-accused, Reenaben, who is also before this Court by a separate application for regular bail. She, admittedly, has 43 antecedents at her discredit, out of which, in 9 matters she has been convicted, whereas, the rest are pending. It is also the case of the prosecution that there is already a demand of security for good behaviour sought from her, as Section 93 of the Code entitles a District Magistrate, on receiving information within the local limits of his jurisdiction, to require any person, who, according to him, habitually committed offences under this Act, to execute a bond with surety for his good behaviour. Further, except, a solitary offence under the Prohibition Act for the alleged selling of 20 liters of liquor against the applicant, which is pending before the Court concerned, wherein also he has been bailed out, nothing is brought to the notice of this Court.
14. Considering the nature of allegations made against the present applicant, essentially, on account of his cohabitation with the co- accused, Reenaben, who is having a number of antecedents at her discredit, the Court is inclined to exercise discretion in favour of the applicant on certain strict conditions.
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R/CR.MA/8751/2017 ORDER
15. Resultantly, this application is
ALLOWED. The applicant is ordered to be RELEASED on regular bail on his furnishing a solvent surety of Rs.25,000/- with another solvent surety of the like amount to the satisfaction of the trial Court concerned and on conditions that the applicant shall:
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week from today;
(d) not leave India without prior permission of the trial Court concerned;
(e) MARK PRESENCE before the concerned police station on the first Monday of every month as per English calender till the completion of trial and shall also regularly attend the Court proceedings;
(f) NOT ENTER within the limits of Surat City, except, for the purpose of attending Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue Aug 15 18:22:57 IST 2017 R/CR.MA/8751/2017 ORDER trial and marking presence, till completion of the trial;
(g) furnish the permanent address of residence so also the address, where he is going to stay PENDING trial, to the Investigating Officer, Superintendent of Police of the concerned district and also to the trial Court concerned at the time of execution of the bond and shall not change the residence without prior permission of this Court;
16. The Authorities will release the applicant only if not required in connection with any other offence for the time being.
17. If breach of any of the above conditions is committed, the trial Court concerned will be free to issue warrant or take appropriate action in the matter, including of cancellation of bail.
18. Bail bond to be executed before the lower court having jurisdiction to try the case.
19. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
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R/CR.MA/8751/2017 ORDER
20. A copy of this order shall be provided to the concerned Superintendent of Police for intimation and COMPLIANCE of this order.
21. Rule is made absolute to the aforesaid extent. Direct service is Permitted.
(MS SONIA GOKANI, J.) UMESH Page 9 of 9 HC-NIC Page 9 of 9 Created On Tue Aug 15 18:22:57 IST 2017