Madhya Pradesh High Court
Pankaj Singh vs The State Of Madhya Pradesh on 10 May, 2018
1
HIGH COURT OF MADHYA PRADESH:JABALPUR
MCRC No.16595/2018
(Pankaj Singh Vs. The State of MP)
Dated: 10.05.2018
Shri Bhupendra Mishra, learned counsel for
the applicant.
Shri Yogesh Dhande, learned Govt. Advocate
for the respondent/State.
Heard and perused the case diary.
This is the first application filed under Section 438 of Cr.P.C. filed by applicant Panjaj Singh, who is apprehending his arrest in to Crime No.92/2018 registered at Police Station Jaithari District Anuppur for the offences punishable under Section 34(1), 34(2), 39 of MP Excise Act, 1915 (for short "Act, 1915").
The allegation against the applicant is that in a search conducted by Shri D.K.Dahiya, Incharge Sub Inspector of Police Station Jaithari, 239 bulk litres of country made liquor was seized from the foreign liquor shop of the applicant and for the same, salesmen Sunil Kumar Singh and Rajendra Jaiswal have also been arrested. The applicant's application for anticipatory bail has been rejected by the trial Court on the ground that the same is not maintainable.
Learned counsel for the applicant has submitted that although an application for anticipatory bail is barred under Section 59-A of the MP Excise Act, 1915, but special provision has been given under the same for anticipatory bail 2 for a license holder. Learned counsel for the applicant has submitted that the applicant is a license holder of foreign liquor shop, which was granted to him on 1.4.2018 and is valid upto 31.3.2019.
Learned counsel for the applicant has further submitted that the applicant has nothing to do with the aforesaid offence, as the aforesaid liquor was kept in the shop by the salesmen without his authorization and connivance. It is further submitted that since the seizure was made by the Incharge Sub Inspector, who is not competent to enter the shop under Section 55 of the of the Act, 1915, the seizure of the aforesaid liquor was illegal. It is further submitted that special provisions under Section 59-A of the Act, 1915 is made only to deal with such situation and therefore the applicant cannot be deprived the benefit of said provision of grant of anticipatory bail in matters relating to MP Excise Act.
On the other hand, learned counsel for the State Shri Yogesh Dhande has opposed the prayer. It is submitted by Shri Dhande that under the pretext of license, which was granted to the applicant, he was carrying on illegal activities for the prevention of which there is no bar under the Act, 1915 to restrain an officer of police viz. Incharge Sub Inspector of the Police Station to enter into a premises and even otherwise it is at the most a mere procedural irregularity and cannot render the whole operation invalid.
3Heard the learned counsel for the parties and perused the case diary.
The short point involved in this application is that whether the present applicant is entitled to get anticipatory bail or not. The relevant extracts of Section 59-A of the Act read as under:-
"[59-A. Certain offence under the Act to be non-bailable.-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 49-A 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 sub-Section (1) of Section 34 with quantity of liquor found at the time or in the course of detection of such offence exceeding fifty bulk litres.
(ii) xxx
(iii) xxx"
(emphasized supplied)
Since the applicant is a license holder, his case is covered by Section 59-A of the Act and he is entitled to file an application of anticipatory bail which may or may not be allowed by the Court in its discretion.
Admittedly in the present case the search was conducted by the In-charge Sub Inspector of the Police Station Jaithari on 12.4.2018, and even assuming for the sake of argument that he was competent to do so, in that case also the applicant 4 cannot be deprived of his legal right and protection as provided under Section 59-A of the Act, 1915 for grant of anticipatory bail, as the applicant is the license holder, which is valid from 1.4.2018 to 31.3.2019, a copy of the same is also filed on record and his defence is that the illegal liquor was kept in his shop by the co-accused persons without his knowledge and connivance which, in the considered opinion of this court is a question to be decided after the evidence is led by the parties.
In view of the above mentioned facts and circumstances of the case, and without expressing any opinion on the merits of the case, this Court is of the considered opinion that the applicant has made out a case for grant of anticipatory bail. Consequently, the application under Section 438 of Cr.P.C. is hereby allowed.
It is directed that in the event of his arrest, present applicant namely Pankaj Singh shall be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- (Rupees fifty thousand only) with a solvent surety in the like amount to the satisfaction of the Arresting Authority (Investigation Officer). The applicant shall further abide by the other conditions enumerated in sub-Section (2) of Section 438 of Cr.P.C.
(Subodh Abhyankar) Digitally signed by MANZOOR AHMED Judge Date: 2018.05.14 14:32:20 +05'30' Ansari.