Bombay High Court
Raosaheb Genu Avhad vs The State Of Maharashtra on 2 March, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
Ethape 1/22 BA.919,1711,2790.19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION. NO. 919 OF 2019
Yakub Yunus Shaikh .. Applicant
Vs.
The State Of Maharashtra .. Respondent
WITH
CRIMINAL BAIL APPLICATION. NO. 1711 OF 2019
Bhimraj Genu Avhad .. Applicant
Vs.
The State Of Maharashtra .. Respondent
WITH
CRIMINAL BAIL APPLICATION. NO. 2790 OF 2019
Raosaheb Genu Avhad .. Applicant
Vs.
The State Of Maharashtra .. Respondent
......
Mr.Sandeep Kumar Singh, Advocate for Applicant in
BA/919/2019
Niranjan Mundargi a/w. Raviraj Paramane i/b Jaydeep S.
Vaishampayan for Applicant in BA/1711/2019.
Shashank P. Borade for Applicant in BA/2790/2019.
A.A. Takalkar, A.P.P. for the State-Respondent.
(I.O.) Ajay Deore (S.P.) CID, Nashik.
......
CORAM : PRAKASH D. NAIK, J.
DATE : 02nd MARCH, 2020
PC.
1 The Applicants in these applications are seeking bail
in connection with C.R. No.I-36 registered with MIDC Police
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Station, Ahmednagar, for ofence punishable under Sections 304,
328 read with Section 34 of the Indian Penal Code (for short
"IPC"). The First Information Report (for short "FIR") was lodged
on 14th February 2017. Subsequently, provisions of the
Maharashtra Control of Organized Crimes Act (for short "MCOC
Act") were invoked vide sections 3(1) (ii), 3(2), 3(4) and Section 4
of the MCOC Act and Sections 65 (c) (f), 68 (b), Section 80 of
Bombay Prohibition Act also invoked.
2 The brief facts of the prosecution case are as follows.
(a) On the basis of complaint lodged by Baban Rangnath Avhad
on 14th February 2017, MIDC Police Station, Ahmednagar
registered an ofence vide C.R. No. 36 of 2017.
(b) Ms. Mangal Mahadev Avhad and Ms. Bhagyashree Mokate,
both residents of Pangarmal, were contesting Jeur Zilha Parishad
Elections. Two brothers of the complainant namely Popat
Rangnath Avhad and Dilip Rangnath Avhad, along with other
villagers were invited by Mahadev Kisan Avhad for campaigning
since last past four days.
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(c) On 12th February 2017, as a part of election campaign,
party was arranged for volunteers and villagers by candidate
Mangal Mahadev Avhad at her residence. Liquor and vegetarian/
non-vegetarian food were served. Popat Rangnath Avhad and
Dilip Rangnath Avhad had left the house for campaigning. They
did not return home. On 13 th February 2017 at about 08:30 pm,
the brother-in-law of Popat Avhad informed complainant that
Popat and Dilip are feeling giddiness and vomiting, and they had
been brought to Civil Hospital, Ahmednagar. When the
complainant reached hospital, he was informed that Popat
Rangnath Avhad had expired and thereafter other brother Dilip
Rangnath Avhad had also consumed liquor, food and during
treatment he passed away.
(d) The complainant inquired with brother-in-law of Popat
Avhad as to how the incident had occurred. He was informed
that on 12th February 2017, the brother of the complainant and
others were campaigning for Mangal Mahadev Avhad. In the
evening, party was arranged. The liquor was served with food.
The victims sufered from vomiting and giddiness. They were
taken to hospital and during treatment they were declared dead.
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It was also revealed that several other persons had also sufered
after consumption of liquor and food and they were undergoing
treatment.
(e) Accused Bhimraj Genu Avhad and Raosaheb Genu Avhad
had arranged for Indian and foreign liquor. The same was
distributed by Ajinath Mahadev Avhad, Udhav Mahadev Avhad,
Bhimraj Avhad, Raosaheb Avhad and Mahadeo Avhad. After
consuming liquor, several persons sufered giddiness and
vomiting and they were admitted to hospital.
(f) The spurious liquor was manufactured by Mohan Shriram
Duggal, Sonu @ Sandeep Mohan Duggal, Jagjeetsingh
Kisansingh Gambhir, Jakir Kadar Shaikh, Hamid Ali Shaikh,
Vaibhav @ Shekhar Jadhav, Bharat Joshi, Nanna @ Ajit Sevani,
Yakub Shaikh, Dada @ Pravin Vani, Navnath Dhadge, Amit
Motiyani and Rajendra Buge. The liquor was distributed by
Bhimraj Avhad and his brother Raosaheb Avhad in the party
organized by Bhagyashree Mokate, Mangal Avhad.
(g) About 16 persons were injured and 9 persons died on
consuming the poisonous liquor. Several accused were arrested.
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Statement of witnesses were recorded. On completing
investigation, charge-sheet was fled.
3 Learned Advocate for the Applicant in Criminal Bail
Application No. 919 of 2019 submitted that, the Applicant Yakub
Shaikh is not concerned with manufacturing of spurious liquor.
The allegation against him are vague. The provisions of M.C.O.C.
Act are not attracted in the present case. The Applicant is in
custody from the date of arrest. Co-accused Amit Wasumal
Motiyani (accused No. 18) has been granted bail by the Special
Court by order dated 16th April 2018. There is no material on
record to show complicity of the Applicant in manufacturing and
distributing any poisonous Indian or Foreign liquor. There is no
material to indicate that Applicant is a party to any conspiracy to
manufacture and distribute any poisonous liquor. There is no
material to indicate that the Applicant is party to any conspiracy
to manufacture, sell or distribute any poisonous liquor, role with
regard to mixing of Ethyl alcohol and Methyl alcohol in
regulatory to prepare illicit liquor is attracted to other accused.
The allegation against the Applicant is of general nature that he
along with accused no. 17 received duplicate seal and label of
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various brands of liquor which was later on labeled and sealed.
This allegation is not supported by any evidence. He had no
connection with manufacturing illicit liquor and he was not even
aware about the same. He was helping at the request of accused
No.9 Zakir Shaikh who was his relative. The provisions of
M.C.O.C. Act are not attracted in the instant case in absence of
any material to suggest commission of ofence of organized
crime by the Applicant. The ofence relates to Bombay Provisions
Act and the same would not attracted the provisions of MCOC
Act. There is no evidence to suggest that the Applicant has
engaged in any continuing unlawful activities or had committed
ofence of organized crime.
4 The prosecution has opposed the grant of bail by fling
afidavit-in-reply. Learned APP submitted that the ofence is
serious in nature. Several persons had died. Several others had
injured. Death was on account of consumption of illicit liquor.
The Applicant has played a vital role in the crime. There is a
direct connectivity of the Applicant in manufacturing of spurious
liquor. The Chemical Analysis Report reveals Ethyl alcohol and
Methyl alcohol which is poisonous substance. The provisions of
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M.C.O.C. Act are applicable in this case. Accused No. 20
Surjeetsingh Bhagatsingh Gambhir was in possession of 'Sai-
Bhushan Canteen' in Civil Hospital, Ahmednagar and having
knowledge of illegal business of accused no.8. Jagjeetsingh
Kisansingh Gambhir and Accused No.9 Jakir Kadar Shaikh
allowed them to run the business. Accused No.8 and Accused
No.9 given sub-contract to accused no.7 Mohan Shriram Duggal
to run the canteen. The poisonous liquor prepared by the
accused was transported by Scorpio Vehicle of accused no.4
Bhimraj Avhad. Jagjeetsingh Kisan Gambhir is the leader. Several
cases registered against him. The Applicant is active member of
Gang. Call details record of the Applicant shows that, there was
contact with gang leader and other accused. The spurious liquor
was supplied by accused was discovered and seized from Hotel
Sarthak and sent for Chemical Analysis to the Forensic
Laboratory. The report shows presence of Methanol which
corroborates with viscera reports of deceased in this case. Two
cases were registered against the Applicant with Tofkhana Police
Station, Ahmednagar vide C.R. No.160 of 2005 under Sections 66
(b), 83 Maharashtra Prohibition Act and C.R. No.09 of 2010
under Section 66 (f) Maharashtra Prohibition Act. There is
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suficient material on record to show complicity of the Applicant
in the crime.
5 Learned counsel for the Applicant appearing in
Criminal Bail Application No. 1711 of 2019 submitted that, no
case is made out against him for any ofences. The provisions of
M.C.O.C. Act are not attracted. Applicant had no knowledge that
the liquor was spurious or it that contained poisonous substance
and he is not concerned with manufacturing liquor. He has no
connection with the co-accused. Assuming prosecution case to be
truth, Applicant had collected the liquor bottles and the same
were brought at the venue and then it was distributed to
villagers. There is nothing to infer that the Applicant was aware
that the liquor was poisonous. Section 304 of IPC cannot be
attracted against the Applicant. The provisions of M.C.O.C. Act
cannot be applied against him. The brother of the Applicant had
also consumed spurious liquor and he was required to be
admitted to hospital for treatment. Having knowledge that the
liquor is spurious as alleged he would not have distributed in the
party. It was consumed by several villagers including his brother.
The Applicant is in custody from 14th February 2017. The
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Applicant at the most is buyer of liquor at the instance of
accused, who had arranged the party. He was not party to
conspiracy. The only allegation against him is that the Applicant
purchased the liquor from the canteen of Jagjeetsingh @ Jitu
Seth and his accomplice Jakir Shaikh and distributed in the party.
There is no evidence to show that the Applicant was aware about
the condemnation of liquor. The confessional statement of
accused Mohan Daggal (since deceased) and Sonu Duggal would
only indicate that the Applicant used to visit Jagjeetsingh at
canteen and buy liquor from him as it was available at
reasonable rate. The confessional statement do not indicate that
the Applicant was aware about illegal business of Jagjeetsingh
Gambhir. There was no reason for Applicant distribute spurious
liquor as the organizers were his relatives. No knowledge of
likelihood of death as required under Section 304 of the IPC can
be attributed to him. The ingredients to constitute ofence under
Section 304 of the IPC are absent. The Applicant is not involved
in any case with Jagjeetsingh Gambhir @ Jitu Seth. Two more
ofences are registered with Ahmednagar Taluka Police Station
against the accused. The Applicant was impleaded as an
accused. However, subsequent report was fled under Section
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169 of Cr.P.C. against him. There is no evidence to show that, the
Applicant was member of any organized crime syndicate of
Jagjeetsingh Gambhir @ Jitu Seth. The Applicant is in custody
since 14th February 2017. Investigation is completed and charge-
sheet is fled.
6. Learned counsel relied upon order passed by this
Court in Writ Petition No. 913 of 2019 preferred by Surjit
Bhagatsingh Gambhir wherein it was directed that the said
accused shall not be arrested in the absence of material
available against him, in the charge-sheet establishing his
culpability under the provisions of M.C.O.C. Act.
7 The prosecution has opposed the application for bail
by flling afidavit-in-reply. Learned APP submitted that, the
Applicant is involved in the ofence. There is suficient evidence
to show complicity of the Applicant in the crime. The Applicant
had purchased illicit liquor from the co-accused and the same
was distributed. The liquor was purchased at cheaper rate and
he had knowledge that it is spurious. The defence that he had no
knowledge about the contents of liquor will have to be agitated
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at the time of trial. The ofence is of serious nature. Several
persons have died and injured. The confessional statement of the
accused indicates the complicity of the Applicant in the crime.
There are several cases registered against gang leader. The
Applicant is member of crime syndicate. He was in contact with
gang leader Jagjeetsingh Gambhir. The confessional statement of
accused No.7 and accused No.11 reveals that the Applicant was
having knowledge about spurious and illicit liquor. The Applicant
brought spurious liquor and distributed amongst the visitors for
party. The Applicant has previous antecedents. Four cases were
registered against him with Tofkhana Police Station,
Ahmednagar vide C.R. No.136 of 1999 under Sections 143, 147,
324 of the IPC, C.R. No. 123 of 2005 for ofence under Sections
302, 201 of the IPC, C.R. No.193 of 2015 under Sections 12 (a), 4
and 5 of Maharashtra Gambling Act and C.R. No.363 of 2015 for
ofence under Sections 143, 147, 148, 149, 447, 323, 504, 506 of
IPC read with Section 4, 25 of the Arms Act.
8 Learned Advocate appearing for the Applicant in
Criminal Bail Application No.2790 of 2019 submitted that, the
Applicant has been falsely implicated in this case. He is not
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concerned with the preparation of illicit liquor. He had no
knowledge that liquor was contaminated provisions of M.C.O.C.
Act are not applicable. He is not involved in any crime with gang
leader. The Applicant was involved in one case bearing No. STC
No. 4602 of 2008 under Section 65E of Mumbai Prohibition Act.
The said case resulted in acquittal by judgment and order dated
30th January 2010 passed by Chief Judicial Magistrate,
Ahmednagar. The requirement to constitute the ofence under
the M.C.O.C. Act is not fulflled in the case of the Applicant.
There is no evidence of the Applicant that he has linked with
organized crime syndicate and he is conspired with the main
accused. The Applicant has not played any role in manufacturing
poisonous liquor. He is not concerned with the consumption of
liquor by victims. There is no evidence to show that the
Applicant had knowledge about the purchase of poisonous liquor
by the co-accused. He is not associated in any manner with main
accused and he had no knowledge about poisonous liquor
supplied by the co-accused. The Applicant himself is one of the
victims of the said crime. He had consumed the poisonous liquor.
Thus, it cannot be said that the Applicant was aware that the
liquor was poisonous and in spite that it was distributed/served
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to the members of party. The investigation do not remotely
establish that the Applicant was aware about contamination of
liquor. There was no mens rea.
9 The prosecution has fled afidavit in reply opposing
the application for bail. Learned APP submitted that the ofence
is of serious in nature. The Applicant is member of organized
crime syndicate. The Applicant distributed spurious liquor to the
visitors of the party. There are serious cases against gang leader.
The liquor was spurious. It contained Ethyl alcohol and Methyl
alcohol as per Forensic Laboratory Report. The Learned Special
Judge has passed the order by giving reasons while rejecting
application for bail. The confessional statement of the co-accused
implicate Applicant. The Applicant had knowledge that liquor is
available at cheaper rate in the canteen of Mohan Duggal.
10 I have perused the documents on record. Party was
arranged as a part of campaign by candidates contesting the
election. Party was hosted in the house of Mangal Avhad. The
liquor was served to the visitors who attended party. After
consumption of liquor, the victims sufered from giddiness and
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vomiting and they were admitted in hospital. About 9 persons
died, thirteen were injured two persons turned blind and one had
sufered from Paralysis. It was an unfortunate incident due to
which several persons were afected. Approval was granted to
apply provisions of M.C.O.C. Act on 13 th July 2017. The sanction
was accorded under Section 23 (2) M.C.O.C. Act on 10 th August
2017. Supplementary charge-sheet was fled for ofence under
Sections 304, 328 read with section 34 of IPC and Sections 65(c)
(d) (f), 68(b), of the Maharashtra Prohibition Act read with
Sections 3(1) (i), 3 (1) (ii), 3(2), 3(4) and Section 4 of M.C.O.C.
Act. During the course of investigation it was revealed that
Jagjeetsingh Kisansingh Gambhir conduct organized crime
syndicate for pecuniary beneft. About 11 cases were registered
against Jagjeetsingh Gambhir under the Provisions of IPC as
well as Maharashtra Prohibition Act. The seized muddemal
contains Methyl alcohol as per Forensic Laboratory Report which
corroborates with viscera report of deceased.
11 The contention of the prosecution is that, as per
Section 21 (4) of M.C.O.C. Act, it is necessary to see that there
are reasonable ground that accused are not guilty of such
ofence. There is scientifc evidence connecting the accused with
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the crime supported by Chemical Analysis Report. Confessional
statements of accused No.7 Mohan Duggal and accused No.11
Sonu @ Sandeep Duggal were recorded under Section 18 of
M.C.O.C. Act which are admissible in evidence. The accused are
named in the confession.
12 According to the prosecution, Accused No.20
Surjitsingh Gambhir was in possession of 'Sai-Bhushan' Canteen
in Civil Hospital, Ahmadnagar. Accused No.8 gave sub-contract
to accused No.7 Mohan Duggal to run the canteen. The
poisonous liquor was prepared in the canteen party was
organized by accused No.1 and accused No.2. The liquor was
transported by Scorpio vehicle of accused No.4 Bhimraj Avhad
(Applicant in Bail Application No. 1711 of 2019). Although liquor
was hazardous to people, the same was served in the party. Due
to consumption of liquor, there were causalities and injuries.
Accused No.13 used to sell Spirit Ethyl Alcohol which was used
for preparation of spurious country made and foreign liquor and
same was transported by Jeep owned by accused No. 16. The
accused No. 14 Nanna @ Ajit Gulraj Sevani with the help of
accused No.18 Amit Motiyani had demanded 200 litres of waste
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solvent (Methanol Mix) from Jyoti Pharmacy through Janseva
Transport. The Spirit and Methyl was provided to Accused No.7,
Accused No. 11 and Accused No.15 Yakub Yunus (Applicant in
Bail Application No.919 of 2019). Accused No. 14 Nanna @ Ajit
Sevani was allegedly instrumental in preparation of seal and
labels of country made and foreign liquor provided the same to
Accused No.7 Mohan Duggal and Accused No. 11 Sonu Duggal.
Accused No.19 Rajendra Buge (deceased) provided duplicate
seal and label of brands of liquor to accused No.15 Yakub Yunus
and Accused No. 17 Navnath Dhadage. Accused No.11
purchased empty liquor bottles from scrapped supplier.
Contaminated spurious liquor was prepared by accused No.7,
accused No.10, accused No.11 and Accused No.12. Accused
No.15 Yakub Yunus, accused No.17 Navnath Dhadage used to
manufacture it by Hotel Bhavarchi, Kalyan Road, Ahmednagar
used to sell it for the pecuniary gain of accused No.8
Jagjeetsingh Gambhir and accused No.9 Jakir Shaikh. It is
alleged that accused prepared spurious liquor trade by mixing of
noxious substance i.e. Spirit (Methyl Alcohol) and by branding it,
transported and sold in the market.
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13 Postmortem Report and Chemical Analysis Report
shows that, excess quantity of Methyl Liquor and Ethyl Liquor
were found in the viscera of deceased. It is alleged that call
detail record shows connectivity of accused. Statement of
witnesses shows involvement of all the accused.
14 The confessional statements of Mohan Duggal and
Sonu @ Sandeep Duggal were recorded under Section 18 of
M.C.O.C. Act. They stated that the canteen in the premises of
Civil Hospital, Ahmednagar is run at the instance of accused
No.8 Jagjeetsingh Gambhir and Accused No. 20 Surjeetsingh
Gambhir wherein spurious liquor trade was carried out by use of
Spirit and Methyl Alcohol supplied by accused No.13 Bharat
Joshi stored in kitchen of accused No.16. The liquor was
manufactured in the night hours. It is alleged that labels and
caps were provided by Jakir Shaikh and other accused.
15 The prosecution case against the Applicant Yakub
Yunus is that he used to participated in the preparation of
country made liquor with co-accused. The role has been
attributed to him in the confessional statement of Mohan Duggal
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and Sonu @ Sandeep Duggal. The liquor boxes loaded in the
vehicle of accused Bhimraj Avhad were taken from Applicant
Yakub Shaikh. He conducted Hotel Bavarchi, Kalyan Road
Ahmednagar and prepairing illicit liquor and selling the same.
Notebook was recovered from the hotel of the accused Yakub
Shaikh, which contained the notes regarding the account. Hand
writing was examined from the experts, which was found to be of
the Applicant/accused. Two cases were registered against him.
CDR report shows that he was in touch with Jagjeetsingh @
Jaggu Seth and other accused. Mohan Duggal has stated that,
the Applicant Yakub Shaikh used to sell illicit liquor at hotel
Bavarchi and used to help other accused in preparing illicit
liquor in the canteen. Sonu @ Sandeep Duggal in his confession
has stated that the Applicant Yakub Shaikh is relative of Jakir
Shaikh and he was called for helping them in preparing illicit
liquor. Considering the incriminating evidence against the
Applicant Yakub Shaikh, no case for grant of bail is made out.
There is suficient evidence to show his complicity in the crime.
16 The prosecution case against Bhimraj Avhad is that he
had purchased the illicit liquor from the co-accused and the
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same was distributed in the party. He purchased the same from
'Sai-Bhushan Canteen' in Civil Hospital, Ahmednagar. The
confessional statement of Mohan Duggal and Sonu @ Sandeep
Duggal attributed overt-act and knowledge about the liquor
being sold at cheaper rate. Statements of witnesses recorded
during the investigation support the prosecution case qua
involvement of Bhimraj Avhad. He showed the place of Sai-
Bhushan Canteen from where the country made liquor was
seized. The Chemical Analysis Report indicates that the Methyl
Alcohol was existing in the liquor. The vehicle used in the crime
has been seized at his instance. Four cases were registered
against him. Call detail record shows that, he was in touch with
gang leader and other accused. The confessional statement of
Mohan Duggal mentioned that the Applicant used to visit the
canteen frequently and used to have conversation with Jitu Seth
and Jakir Shaikh and used to purchase the liquor from the said
shop. He was aware that the liquor was available at cheaper rate
from the canteen. Thus, he had knowledge that it is spurious.
The confessional statement of Sonu @ Sandeep Duggal
mentioned that the liquor was sold to him. Considering the
nature of evidence against the Applicant, the gravity of the
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ofence and the role attributed to the Applicant, it cannot be said
that he is not involved in the ofence. He is equally responsible
for death and injury to the victims. He was frequently visiting the
canteen and inference can be drawn that he was aware that
spurious liquor has been manufactured by the co-accused, which
is sold at cheaper rate. He was instrumental in purchasing the
liquor and distributing the same in the party. Submissions
advanced by the advocate for the accused appearing in both the
applications that the provisions of M.C.O.C. Act are not
applicable in the case cannot be agitated at this stage. Apart
from that there is suficient evidence against Yakub Shaikh and
Bhimraj Avhad them to establish the ofences under the IPC.
17 As far as the Applicant Raosaheb Avhad is concerned,
it is alleged that he was present in the party and
distributed/served the liquor to persons, who attended the party.
One case was registered against him in past which has resulted
in acquittal. The CDR shows that during the period from 01 st
August 2016 to 03rd April 2017 there were calls between the
Applicant and Bhimraj Avhad. It is pertinent to note that,
Bhimraj Avhad is the brother of the Applicant Raosaheb Avhad.
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No adverse inference would be drawn. The confessional
statement of Mohan Duggal and the other accused indicates that
the Applicant had visited canteen along with his brother Bhimraj
Avhad. The confessional statement of the co-accused also
indicates that some bottles were given to the Applicant/accused.
However, it is pertinent to note that on the date of incident, the
delivery was made to Bhimraj Avhad. There is no other evidence
to show involvement of the Applicant in the crime. It is pertinent
to note that the Applicant Raosaheb Avhad was himself the
victim of consumption of liquor. After the consuming liquor, he
was hospitalized and undergone treatment. The medical case
papers annexed to application for bail indicates that the
Applicant Raosaheb Avhad was diagnosed with acute alcoholic
intoxication suspected methanol poisoning in view of severe
metabolic acidosis and bilateral Bronchopneumonia /
Dehydration / Hyperkalemia. Medical case papers also record
the history of nausea/vomiting giddiness vertigo consumption of
alcohol on 12th December 2017. The medical case papers also
mention the treatment given to the Applicant. If the Applicant
had knowledge that the liquor is spurious, he would not have
served the same to the other victims on consumed himself. Thus,
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the case of the Applicant Raosaheb Avhad can be distinguished
from the other accused. He is in custody from the date of arrest.
Presently no other case is pending against him. Considering the
circumstances, case for grant of bail by accused Raosaheb Genu
Avhad is made out.
ORDER
i) Bail Application No.919 of 2019 and Bail Application No.1711 of 2019 are rejected;
ii) Bail Application No.2790 of 2019 is allowed;
iii) The Applicant is directed to be released on bail in connection with C R. No.80 of 2017 registered with MIDC Police Station, Ahmednagar on his executing P.R. bond in the sum of Rs.25,000/- with one or more sureties in the like amount;
iv) The Applicant shall report concerned police station once in a month on every frst Saturday between 11.00 am. to 01.00 pm., till further order.
v) Bail Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.) ::: Uploaded on - 20/03/2020 ::: Downloaded on - 07/06/2020 04:51:10 :::