Gujarat High Court
Vismay Amitbhai Shah vs State Of Gujarat on 6 February, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/24351/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 24351 of 2018
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VISMAY AMITBHAI SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR YOGESH LAKHANI, SENIOR ADVOCATE assisted by MR ANKIT
SHAH(6371) for the PETITIONER(s) No. 1
MR DM DEVNANI, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 06/02/2019
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with Prohibition CR No.III-315 of 2018 registered with Adalaj Police Station, Gandhinagar for offence under Sections 66(1)(b), 85, 84, 68, 65(a)(e), 116(b) and 81 of the Gujarat Prohibition Act.
2. Learned Advocate appearing on behalf of the applicant submitted that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions. It is submitted that the offence has occurred where the applicant was found in company with his family friends consuming liquor at the farmhouse of is family friend (co-accused). Page 1 of 19
R/CR.MA/24351/2018 ORDER 2.1 It is submitted that though the FIR is
registered for offence under Sections 66(1)(b), 85, 84, 68, 65(a)(e), 116(b) and 81 of the Gujarat Prohibition Act, still considering the contents of FIR, ingredients of these offences are not made out. It is submitted that Section 65(a) would not be attracted as it pertains to imports or exports or any intoxicant, for which the applicant is not responsible. Similarly, Section 65(e) will also not be applicable as it provides for possessing, transporting, selling or buying of any intoxicant. It is submitted that the word "possesses" in the sub-section should necessarily be interpreted for commercial purpose. In this regard, learned Advocate also pointed out newly inserted Section 65AA, which provides for the punishment to the extent of three years, where the offence pertains to possessing or transporting any intoxicant, which is less than the quantity specified by the State Government by notification. It is submitted that till date, no such application is issued and therefore, the case of the applicant requires to be treated for the minimum punishable prescribed. 2.2 It is submitted that insofar as Sections 68, 84 and 85 are concerned, the same pertain to "common drinking house", which also again is defined and the place where the applicant was allegedly found consuming Page 2 of 19 R/CR.MA/24351/2018 ORDER liquor would not fall in the definition of "common drinking house". It is submitted that punishment provided for consuming liquor in a "common drinking house" and thereafter conducting himself in disorderly manner under the influence of drinking is imprisonment for two months for the first offence and six months for the subsequent offence. If this aspect is taken into consideration then intention of the legislature is to be construed as provided for the punishment under Section 65 by amendment to the extent of ten years, should necessarily apply for the activity meant for commercial purpose. It is submitted that under no circumstances, these Sections could be applicable to the facts of this case and to the applicant.
2.3 It is therefore submitted that the only Section applicable in the facts of this case is Section 66(b) and there, the punishment prescribed is of six months for the first offence and two years for the subsequent offence. It is submitted that considering the maximum sentence, the offence has to be considered as bailable. 2.4 It is submitted that Section 119 which provides for making certain offences as non-bailable, specifies Sections of the Act, does not include Section 66. It is therefore submitted that the case against the applicant must be treated as bailable offence and therefore, the Page 3 of 19 R/CR.MA/24351/2018 ORDER applicant is entitled to bail without any condition. 2.5 It is submitted that the co-accused who were accompanying the applicant have already been granted regular bail. It is submitted that the Court may consider totality of facts in the present case, where the applicant was recently married and so as accused No.1, who was to get married with a person of foreign origin (non-accused) and upon insistence of the couple friend, the applicant got carried away and therefore was found in company with his family friends at the scene of offence. 2.6 It is submitted that immediately after his marriage, the applicant was arrested on 26.12.2018 and continued to be in custody before the coordinate Bench of this Court by order dated 04.01.2019 granted temporary bail.
2.7 It is submitted that though the applicant is on permanent bail by the Apex Court in connection with the previous offence, where the applicant is convicted, the applicant has, in compliance with the order of the Apex Court, given personal bound as well as surety before the trial Court. It is submitted that none of the conditions of the bail granted by the Apex Court have been breached by the applicant. However, to express his remorse for being named as accused in present offence, pending the Page 4 of 19 R/CR.MA/24351/2018 ORDER final disposal of the appeal before the Court, the applicant is ready and willing to file an undertaking before this Court to the effect that he shall not indulge in any activity which may be termed as a criminal offence and shall also offer himself for any social service activity that the Court deems fit.
3. As against this, learned APP appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence.
3.1 It is submitted that the investigation is still going on. It is submitted that the case of the applicant cannot be compared with the case of the co-accused as the co-accused has no antecedents whereas the applicant not only has antecedent of this nature but also on bail in connection with the conviction against which appeal is still pending.
3.2 Learned APP strongly opposed grant of bail also on the ground of conduct of the applicant, firstly in being involved in serious offence, convicted therein and released by the Apex Court on bail. It is submitted that therefore the applicant was legally bound not to indulge in any kind of illegal activity. With full knowledge of this, the applicant with open eyes, has once again Page 5 of 19 R/CR.MA/24351/2018 ORDER indulged in an activity which is a criminal offence and hence, now no discretion can be exercised in his favour. 3.3 It is submitted that during the course of investigation, it is found from the FSL report that blood sample of the applicant has been tested positively with alcohol content.
4. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers. 4.1 The gist of the offence is as under:-
"At the mentioned date, time and place, the accused persons of this case namely Chinmaybhai Chaitanya Patel, Vismay Amit Shah, Harshitbhai Devdattbhai Majumdar, Manthanbhai Shyambhai Ganatra, Pujaben w/o Vismay Amit Shah and Mimansha Kashyap Buch, all residents of Ahmedabad were caught drinking liquor and smoking hukka during raid in Christmas party along with muddamal of 2 foreign liquor bottles of different brands having value of Rs. 2400/-, 12 beer bottles having value of Rs. 1800/-, 4 liquor bottles of other company with broken seal and an empty bottle having value of Rs. 00.00/-, 7 mobile phones having value of Rs. 1,30,000/-, articles of party having value of Rs. 2200/- and a Mercedes car having value of Rs. 40,00,000/-, thus amounting to total Rs. 41,36,400/- and thereby committed offence etc."Page 6 of 19
R/CR.MA/24351/2018 ORDER 4.2 In connection with this offence, other arrested
co-accused were initially granted temporary bail by this Court and thereafter were enlarged on regular bail. The coordinate Bench of this Court by order dated 04.01.2019, considering the submissions made on behalf of the applicant that only offence under Section 66(1)(b) of the Gujarat Prohibition Act is made out, had granted temporary bail to the applicant as well. In case of the applicant, as the applicant was having antecedent referred to in the order of the Sessions Court, this Court thought it fit to examine the case papers from the view of breach of any condition of bail and hence, by a separate order, called upon both the parties to produce on record the complete details of orders of bail and /or any other orders connecting the applicant regarding his antecedent. Pursuant thereto, an additional affidavit came to be filed by the applicant and an affidavit in reply came to be filed by the Investigating Officer.
From the affidavit, it appears that applications preferred by the applicant, in connection with an offence being I-CR No.79 of 2013, Vastrapur Police Station for offence under Sections 304 (part-2), 279, 427 of the Indian Penal Code and Sections 177, 184 and 134(1)(B) of the Motor Vehicles Act, for bail were not entertained by the Sessions Court as well as this Court. This Court in its order dated 25.04.2013 in Criminal Misc.Application Page 7 of 19 R/CR.MA/24351/2018 ORDER No.6430 of 2013 had recorded as under:-
"5 The trial court, by order dated 20.4.2013, rejected the bail application of the applicant after chargesheet by assigning the following reasons:
[a] The manner in which the applicantaccused was driving the BMWCar, whereby two young boys died, primafacie, attracts offence punishable under Sections 304 (part 2) of the Indian Penal Code:
[b] After the accident, the applicant fled from the scene of offence. Considering the conduct of the applicant immediately after the incident, it cannot be said that the applicant will not flee from justice.
[c] From the FSL Report, it transpires that the applicant drove the care at 112 kms speed per hour.
[d] Breach of traffic rules by the victim is a matter of evidence to be appreciated at the time of trial.
6 Having heard the learned counsels for the parties, on perusal of the record and concurring with the reasons assigned by the trial court in the order dated 20.4.2013 refusing bail to the applicant, no case is made out to enlarge the applicant on bail, in view of the following factors weighing with this Court:
[a] The applicant, after the incident, has neither reported to the police authority nor made an attempt to hospitalize the injured. He ran away from the spot leaving the injured without any medical assistance. Fleeing from the place of accident exhibits callous and inhuman conduct on the part of the applicant.
[b] The applicant surrendered late after a frantic search by the police authority.
[c] FSL report shows speed of the car driven by Page 8 of 19 R/CR.MA/24351/2018 ORDER the applicant at 112 km per hour, which is sufficient to attribute knowledge of the applicant that driving the BMW car in a city area with such speed would certainly endanger human life.
[d] Video CD records the manner in which the accident has taken place.
[e] Though it is a case of rash and negligent driving, but, primafacie, it also attracts the offence punishable under Section 304, part 2, of the Indian Penal Code."
4.3 The Apex Court dismissed the application of the applicant for bail by order dated 02.05.2013. The successive bail application by the applicant came to be rejected by this Court by order dated 06.09.2013. Again the Apex Court by order dated 27.09.2013, rejected the bail application, however, granted liberty to file regular bail application before the High Court within stipulated period. The subsequent successive bail application being Criminal Misc.Application No.1940 of 2014 also came to be dismissed by this Court by order dated 06.02.2014. In this order, this Court recorded as under:-
"8. Mr. Prakash M. Thakkar, learned Senior Advocate appearing for the applicant made almost similar submissions, which were canvassed by the learned counsels appeared in the earlier proceedings. It is submitted that the applicant is in jail since 11 months and trial is likely to prolong and liberty is reserved by the Apex Court to approach this Page 9 of 19 R/CR.MA/24351/2018 ORDER Court, four months after the order in SLP, the applicant be enlarged on bail.
9. Mr. K.P.Raval, learned APP appearing for respondent - State of Gujarat vehemently opposed grant of bail to the applicant in view of seriousness of the crime and that there is no delay in trial but frequent bail applications filed by the applicant effect the trial and bail be refused.
10. Having heard learned counsels for the parties, considering the facts and circumstances of the case and keeping in mind the orders 02.05.2013 and 27.09.2013 passed by the Apex Court and considering the gravity of the crime, role of the applicant and earlier the bail applications rejected by reasoned order, it is not just and proper to exercise power under Section 439 of the Code of Criminal Procedure in favour of the applicant.
Since there is no change in facts, circumstances or law and considering nature of allegations levelled against the applicant and primafacie involvement of the applicant, no bail can be granted in favour of the applicant."
4.4 Thereafter, pending trial, the Apex Court by order dated 31.03.2014, enlarged the applicant on regular bail. The conditions stipulated by the Apex Court were as under:-
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R/CR.MA/24351/2018 ORDER
"a) The petitioner shall not drive any vehicle
even two wheelers during the pendency of the Criminal Case against him before the Trial Court;
b) He will surrender his passport and the driving licence (if not already surrendered) within two weeks' time from today before the learned Magistrate and in case he is not a holder of the same, he shall swear to an affidavit. If the same have already been surrendered before the concerned authorities, the fact should also be supported by an affidavit;
c) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the Court or to any other authority;
d) He shall remain present before the Court on the dates fixed for hearing of the case. If he want to remain absent, then he shall take prior permission of the Court and in the case of unavoidable circumstances for remaining absent, he shall immediately give intimation to the appropriate court and also to the concerned Superintendent and request that he may be permitted to be present through the counsel;
e) He will fully cooperate with the learned Trial Judge in completion of the trial;
f) He will not dispute his identity as the accused in the case;"
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R/CR.MA/24351/2018 ORDER 4.5 Thereafter, the Sessions Court was pleased to convict the applicant by judgment and order dated
13.07.2015 in Sessions Case No.41 of 2013 for offences under Section 304(part-2) of the Indian Penal Code and sentenced him to undergo RI for five years, fine of Rs.25,000/- and in default, to undergo SI for one year, Section 279 of the Indian Penal Code and sentenced him to undergo SI for six months, fine of Rs.1,000/- and in default, to undergo SI for one month and Section 427 of the Indian Penal Code and sentenced him to undergo SI for one year, fine of Rs.5,000/- and in default, to undergo SI for one year. The applicant was also directed to pay compensation of Rs.5,00,000/- each to deceased persons. The applicant was not sentenced separately for offences under Sections 134(1)(B) read with Sections 177 and 184 pf the Motor Vehicles Act.
4.6 Upon conviction, an appeal being Criminal Appeal No.864 of 2015 is preferred before this Court and in an application under Section 389 of the Criminal Procedure Code for suspension of sentence being Criminal Misc.Application No.13488 of 2015, this Court has observed as under:-
"Whereas, on the contrary, it has been noticed that appeals are not being argued at the earliest because of order of bail in favour of Page 12 of 19 R/CR.MA/24351/2018 ORDER the applicant and after long time, when appeals are required to be argued, practically, appellants are not available. In the present case, both the sides have agreed that otherwise they are ready and willing to proceed in the appeal at the earliest, and therefore, reason for granting bail assigned in the cases of Kiran Kumar & Bhagwan Rana (supra) are not material and, hence, only because of such judgments, bail cannot be granted without considering the settled legal position for granting bail in any such cases wherein in fact nature of case and other issues are more relevant."
4.7 However, the Court is informed that now the proceedings in the appeal are on the verge of conclusion. 4.8 The Court has also taken into consideration the affidavit of the Investigating Officer stating as under:-
"a) The applicant herein is having antecedent under Section 185 of the Motor Vehicles Act. A complaint was registered with the Satellite Police Station under Section 185 of the Motor Vehicles Act wherein, the present applicant was found to be driving a Car under the influence of Alcohol. The applicant was therefore, charged for driving in a drunken condition as it was found that he was under influence of Alcohol.Page 13 of 19
R/CR.MA/24351/2018 ORDER
b) The said offence was admitted by the
applicant and the case was disposed by the Learned Judicial Magistrate, Ahmedabad (Rural), Mirzapur. The applicant herein was convicted for the said offence and the applicant had paid Rs.500 as fine towards the said offence."
4.9 The argument of learned Senior Advocate for the applicant on the point of applicability of Sections of the Prohibition Act and the same being not applicable to the facts of the case and that only one Section being 66 can be invoked, which is a bailable offence, is not to be considered at this stage as the investigation is still at large, however, the same cannot be disregarded completely. From the allegations in the FIR and the submissions made by learned Senior Advocate for the applicant, the Court can gather the manner in which the applicant, who is recently married, was carried away at the insistence of co-accused, who is to get married in near future, which marriage the applicant was to miss on account of some other scheduled programme. 4.10 On the other hand, the Court finds that on more than one occasion, this Court, in the previous proceedings, has made such observations which would demonstrate "scant regard for law" by the applicant and therefore, the Court took upon itself to go through the previous orders, especially the order of the Apex Court Page 14 of 19 R/CR.MA/24351/2018 ORDER granting bail after conviction. The bail bonds submitted by the applicant pursuant to the order of the Apex Court were also closely examined to find whether the applicant is in breach of any condition of bail by indulging in any other offence pending the appeal. Though technically there may not be any breach, but this Court is of the view that once a person is convicted and is on bail then even without a specific condition, it is expected that such person does not indulge in any activity that will bring such person in conflict with law. 4.11 The remorse expressed by the applicant through his Counsel in offering himself for social services is required to be considered.
4.12 The Court has also considered the manner in which the offence has taken place, the fact that co- accused of the very offence have been enlarged on regular bail and that coordinate Bench has granted temporary bail pending the present application. The Court is therefore inclined to exercise discretion in favour of the applicant.
5. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.
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R/CR.MA/24351/2018 ORDER
6. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40.
7. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR and the sentence prescribed, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
8. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with Prohibition CR No.III-315 of 2018 registered with Adalaj Police Station, Gandhinagar on executing a personal bond of Rs.1,00,000/- (Rupees One Lac Only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he 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;
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R/CR.MA/24351/2018 ORDER
[d] not leave the India without prior
permission of the Trial Court concerned; [e] mark presence before the concerned Police Station once in a month for a period of six months between 11:00 a.m. and 2:00 p.m.; [f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
[g] The applicant shall perform social services at two institutions, one "Orphanage" and second "Old Age Home". Such institutions may be Government /Semi-Government /private. The applicant shall perform social services on each Saturday at "Orphanage" and each Sunday at "Old Age Home" for a period of six months from today.
[h] After expiry of six month period, the applicant shall perform social services once in a week at any of the institutions till completion of trial;
[i] The applicant shall file an undertaking within a period of 10 days before this Court from today to the effect that the applicant shall scrupulously comply with the conditions of bail and give names of one "Orphanage" and one "Old Age Home", may be Government /Semi- Government /private within Ahmedabad or Gandhinagar districts in such undertaking; [j] Any breach of any condition would lead to automatic cancellation of bail. Consequently liberty to Investigating Agency to arrest the applicant.
9. To ensure that the applicant complies with the conditions-[g] and [h], following directions are issued:-
I. The Head of the institution will be at liberty to assign the work of an appropriate nature on the days fixed for Page 17 of 19 R/CR.MA/24351/2018 ORDER the applicant to offer social services for seven hours on each of the two days.
II. It will be open for the trial Court to appoint any Court Officer for the purpose of random monitoring for compliance of the conditions of performing social services and receive report.
III. Any adverse report by the Court Officer pertaining to performance of social services would be treated as breach of conditions.
10. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
11. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
12. 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.
13. Rule is made absolute to the aforesaid extent. Page 18 of 19
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Direct service is permitted.
Sd/-
(A.Y. KOGJE, J)
SHITOLE
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