Madhya Pradesh High Court
Mahendra Lodhi vs The State Of Madhya Pradesh on 31 July, 2018
1
HIGH COURT OF MADHYA PRADESH:JABALPUR
MCRC No.26867/2018
(Mahendra Lodhi Vs. The State of MP)
Dated: 31.07.2018
Mohd. Ali, learned counsel for the applicant.
Shri D.K.Paroha, 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. by the present applicant, who is apprehending his arrest in connection with Crime No.128/2018 registered at Police Station Baldeogarh, District Tikamgarh for the offence punishable under Section 34(2) of MP Excise Act, 1915 (for short "Act, 1915").
The allegation against the present applicant is that he is involved in the aforesaid case in which 54 illegal bulk liquor was seized from the co-accused persons, and who have given a memorandum under Section 27 of the Evidence Act, 1872 that the aforesaid liquor was purchased by them from the present applicant.
Learned counsel for the applicant has submitted that the applicant is being implicated in the matter only on the basis of the memorandum prepared at the instance of co-accused, otherwise there is nothing to connect the present applicant with the alleged offence. In support of his contention, learned counsel for the applicant has relied upon the judgment of the Division Bench of this Court in the case of Naresh Kumar Lahria vs. State of MP, reported in 2004(4) MPHT 205 in which it is stated that the application for grant of anticipatory bail under the MP Excise Act is 2 maintainable provided that the applicant is able to prove prima facie case in his favour. The relevant portion of the said judgment is re-produced as under:
"24. Before we part with the case we think it appropriate to state though Section 59-A of the Act provides that the Court shall not grant anticipatory bail to a person accused of offence under Section 49-A of the Act or to accused under Section 34 (a) and (b) of the Act in respect of a person who docs not hold the licence under the Act or Rules or has been found in possession at the time of detection more than 50 bulks of liquor, yet the accused always in a positive manner, before the Competent Court, putforth that there no offence has been made out under Section 49-A or 34 (a) and 34 (b) of the Act. It is worthnoting here that though in the case of Ram Krishna (supra) the Apex Court has held that the Section 18 of the SC & ST (Prevention of Atrocities) Act. 1989, whereby the applicability of the Section 438 of the Code has been taken away, as intra vires, many decisions have been rendered granting anticipatory bail on the foundation that the basic ingredients of the offence is not made out. Similarly, we have no hesitation in holding that it would be open to a accused to show that no offence inviting frown of Section 59-A
(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 59-A
(i) of the Act do find mention in the FIR, but essentially and factually the case docs not fall under the said provision, 3 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. We may repeat at the cost of repetition that our observations do not clothe the Court with the power to grant anticipatory bail under Section of the Code and transgress the enacted provision inasmuch as we have held it to be intra vires but we only say that if the accused can, by clarificatory means with substantial material putforth and bring it to the notice of the Court that the offences which are encapsuled under Section 59-A (i) of the Act are really not in respect of which the accused has been roped in and sought to be arrested are actually not within its ambit or sweep and not covered by it then the eclipse created by the provision gets lifted and the accused can seek the ambit of umbrellas of Section 438 of the Code."
On the other hand learned counsel for the State has opposed the prayer of the applicant.
After hearing the learned counsel for the parties and perusing the case dairy, it is apparent from the record that the applicant is implicated in the matter on the basis of statement of co-accused under Section 27 of the Evidence Act, 1872 and there is nothing on record to connect the applicant with the alleged offence. Only admission has been made by the co- accused persons under Section 27 of the Evidence Act. In the circumstances, this Court satisfies that prima facie no case under the MP Excise Act can be said to be made out. In such circumstances the bar as provided under Section 59-A of the MP Excise Act, 1915 cannot be said to be applicable in the present case, hence the applicant would be entitled to be released on anticipatory bail. Thus without expressing any opinion on the merits of the case, the application 4 filed under Section 438 of Cr.P.C. is hereby allowed.
It is directed that in the event of his arrest, present applicant namely Mahendra Lodhi shall be released on bail on his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees one lakh 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 following conditions:-
1. The applicant shall make himself available for interrogation by a police officer as and when required;
2. The applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against her so as to dissuade her from disclosing such facts to the Court or to any police officer;
3. The applicant shall not leave India without the previous permission of the Court; and
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
Certified copy as per rules.
(Subodh Abhyankar) Digitally signed by MANZOOR Judge AHMED Date: 2018.08.01 13:47:05 +05'30' Ansari.