Madhya Pradesh High Court
Ajaya Singh vs The State Of Madhya Pradesh on 27 January, 2026
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2026:MPHC-IND:2567
1 MCRC-2993-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 27 th OF JANUARY, 2026
MISC. CRIMINAL CASE No. 2993 of 2026
AJAY SINGH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Anas Makrani - Advocate for the applicant.
Shri Gaurav Rawat - Govt. Advocate for the respondent/State.
ORDER
This first application has been filed by the applicant under Section 483 of BNSS, 2023 for grant of bail in connection with Crime No. 95/2025, registered at Police Station - Makadon District Ujjain (M.P.) for offence punishable under Section 34(2) of M.P. Excise Act, 1915. Applicant is in judicial custody since 22.11.2025.
2. Heard the arguments.
3. Perused the grounds for grant of bail stated in the application and the relevant material on record.
4. Learned counsel for the applicant, in addition to the grounds mentioned in the application, submits that the applicant is falsely implicated in the alleged offence merely on information of co-accused in police custody. The illicit liquor was not seized from the active and conscious possession of the applicant. He has Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 2 MCRC-2993-2026 not committed the alleged offence. The final report has been submitted on completion of investigation. The applicant was given notice under Section 35(3) of the BNSS, 2023. He was taken into custody by the trial Court on 22.11.2025. There is no likelihood of tampering with evidence by the applicant. Jail incarceration is causing hardship to the applicant. Applicant is ready to cooperate in the trial. The alleged offence is not heinous or brutal in nature affecting society at large.
5. Per contra, learned counsel for the State opposes the application on the ground of gravity of alleged offence. Learned counsel refers to four criminal antecedents against the applicant. Applicant is aged around 28 years. He is an agriculturist by profession.
6. In reply, learned counsel for the applicant submits that the cases at Crime No(s). 71/2016, 457/2021, 510/2023 stand disposed of. The case at Crime No. 193/2025 is pending for trial . The applicant has never been convicted for any offence.
7. This Court has passed an exhaustive order on 01.12.2025 in the case of Prashant alias Lucky Vs. State of M.P.[M.Cr.C. No. 54226/2025] Relevant extracts of the order are reproduced below for convenience and ready reference:
"7. Section 59A of the M.P. Excise Act reads as under :-
59A. 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) ..................... ............................... .............................
(ii) a person, accused of an offence punishable under Section 49-A or 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 Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 3 MCRC-2993-2026 of such offence exceeding fifty bulk litres shall not be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and in case such an application is opposed by the Public Prosecutor, unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail :
Provided that no Court shall order for detention of such person in custody during the course of investigation for total period exceeding 60 days where it relates to 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 the offence under Section 49-A and on the expiry of such of 60 days or 120 days, as the case may be, and in the event of the report of complaint not being filed the accused shall be released on furnishing bail.
(iii) the limitations for grant of bail specified in clause (ii) are in addition to limitations prescribed under the Code of Criminal Procedure, 1973 (No. 2 of 1974) or any other law for the time being in force regarding grant of bail.
8. The interdict contained under Section 59-A would apply to the 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 or an offence punishable under Section 49-A of the Act. The relevant question for consideration is whether mere accusation of aforesaid offence would bar consideration of bail to the accused?
9. A Division Bench of the High Court of Madhya Pradesh, in case of Naresh Kumar Lahriya Vs. State of M.P. & Others reported in 2004(4) MPHT 205, while dealing with constitutional validity of Section 59-A of the M.P. Excise Act, held 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 license 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 worth noting 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 decisons 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 Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 4 MCRC-2993-2026 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 does not fall under the said provision, 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 Cr.P.C.
(emphasis added)
10. There are other statutes which completely bar or restrict grant of bail. Section 18-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 provides that the provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.
11. The Supreme Court considering the nature of bar on grant of anticipatory bail under Section 18 and 18-A of the SCST(PA) Act,1989 in matter of Shajan Skaria v. State of Kerala, reported in 2024 SCC OnLine SC 2249, held as under-
35. Thus, the decision in Prathvi Raj Chauhan (supra) makes it abundantly clear that even while upholding the validity of Section 18-A of the Act, 1989, this Court observed that if the complaint does not make out a prima facie case for applicability of the provisions of the Act, 1989 then the bar created by Sections 18 and 18-A(i) shall not apply and thus the court would not be precluded from granting pre-arrest bail to the accused persons.
36. Justice Ravindra Bhat, in his concurring judgment, observed that while considering any application seeking pre-arrest bail in connection with an offence alleged to have been committed under the provisions of the Act, 1989, the courts should balance two interests - On one hand they should ensure that the power is not exercised akin to the jurisdiction under Section 438 of the CrPC while on the other hand they should ensure that the power is used sparingly in exceptional cases where no prima facie offence is made out as shown in the FIR or the complaint. It was observed that in cases where no prima facie materials exist in a complaint which would warrant the arrest of the accused, the court would have the inherent power to direct a pre-arrest bail.
37. The applicability of Section 438 of the CrPC to cases registered under the Act, 1989 was also dealt with by a two-Judge Bench of this Court in Vilas Pandurang Pawar v. State of Maharashtra reported in (2012) 8 SCC 795. The specific issue framed and answered by this Court was whether an accused charged with various offences under the IPC along with offences under the Act, 1989 would be entitled for an anticipatory bail under Section 438 of CrPC.
38. It was observed by this Court that although Section 18 of the Act, 1989 Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 5 MCRC-2993-2026 creates a bar for invoking Section 438 of the CrPC yet the courts are entrusted with a duty to verify the averments in the complaint and to find out whether an offence under the Act, 1989 is prima facie made out or not. It was further observed that while considering the application for anticipatory bail, the scope for appreciation of evidence and other material is limited and the courts are not expected to undertake an intricate evidentiary inquiry of the materials on record. The relevant observations are reproduced hereinbelow:
"9. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.
10. The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence." (Emphasis supplied)
39. A three-Judge Bench of this Court in Rahna Jalal v. State of Kerala reported in (2021) 1 SCC 733 while discussing in the context of Section 7 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, elaborated on the requirement of the existence of a prima facie case under Section 18 of the Act, 1989 for the bar of anticipatory bail to become applicable, as follows:
"25. Thus, even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, where a bar is interposed by the provisions of Section 18 and Sub-section (2) of Section 18-A on the application of Section 438 of the CrPC, this Court has held that the bar will not apply where the complaint does not make out "a prima facie case"
for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in Chauhan (supra) held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989." (Emphasis supplied)
40. This Court, in Hitendra Vishnu Thakur v. State of Maharashtra reported in (1994) 4 SCC 602, while discussing a similarly worded provision in the Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 6 MCRC-2993-2026 Terrorist and Disruptive Activities (Prevention) Act, 1985, held as follows:
"13. We would, therefore, at this stage like to administer a word of caution to the Designated Courts regarding invoking the provisions of TADA merely because the investigating officer at some stage of the investigation chooses to add an offence under same (sic some) provisions of TADA against an accused person, more often than not while opposing grant of bail, anticipatory or otherwise. The Designated Courts should always consider carefully the material available on the record and apply their mind to see whether the provisions of TADA are even prima facie attracted." (Emphasis supplied)
41. It is clear from the aforesaid discussion that Section 18 of the Act, 1989 does not impose an absolute fetter on the power of the courts to examine whether a prima facie case attracting the provisions of the Act, 1989 is made out or not. As discussed, Section 18 stipulates that in any case which involves the arrest of any person on the accusation of having committed an offence under the Act, 1989, the benefit of anticipatory bail under Section 438 of CrPC would not be available to the accused.
We have deliberated on the significance of the expression "arrest of any person"
appearing in the text of Section 18 of the Act, 1989 and are of the view that Section 18 bars the remedy of anticipatory bail only in those cases where a valid arrest of the accused person can be made as per Section 41 read with Section 60A of CrPC.
It was further held that-
47. Prima facie is a Latin term that translates to "at first sight" or "based on first impression". The expression "where no prima facie materials exist warranting arrest in a complaint or FIR" should be understood as "when based on first impression, no offence is made out as shown in the FIR or the complaint". This means that when the necessary ingredients to constitute the offence under the Act, 1989 are not made out upon the reading of the complaint, no case can be said to exist prima facie.
48. As a sequitur, if the necessary ingredients to constitute the offence under the Act, 1989 are not disclosed on the prima facie reading of the allegations levelled in the complaint or FIR, then in such circumstances, as per the consistent exposition by various decisions of this Court, the bar of Section 18 would not apply and the courts would not be absolutely precluded from granting pre-arrest bail to the accused persons.
49. In our opinion, the aforesaid is the only test that the court should apply, when an accused prays for anticipatory bail in connection with any offence alleged to have been committed under the provisions of the Act, 1989. In a given case, an accused may argue that although the allegations levelled in the FIR or the complaint do disclose the commission of an offence under the Act, 1989, yet the FIR or the complaint being palpably false on account of political or private vendetta, the court should consider the plea for grant of anticipatory bail despite the specific bar of Section 18 of the Act, 1989. However, if the accused puts Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 7 MCRC-2993-2026 forward the case of malicious prosecution on account of political or private vendetta then the same can be considered only by the High Court in exercise of its inherent powers under Section 482 of the Code or in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. However, powers under Section 438 of the CrPC cannot be exercised once the contents of the complaint/FIR disclose a prima facie case. In other words, if all the ingredients necessary for constituting the offence are borne out from the complaint, then the remedy of anticipatory bail becomes unavailable to the accused.
50. The duty to determine prima facie existence of the case is cast upon the courts with a view to ensure that no unnecessary humiliation is caused to the accused. The courts should not shy away from conducting a preliminary inquiry to determine if the narration of facts in the complaint/FIR in fact discloses the essential ingredients required to constitute an offence under the Act, 1989. It is expected of the courts to apply their judicial mind to determine whether the allegations levelled in the complaint, on a plain reading, satisfy the ingredients constituting the alleged offence. Such application of judicial mind should be independent and without being influenced by the provisions figuring in the complaint/FIR. The aforesaid role of the courts assumes even more importance when a prima facie finding on the case has the effect of precluding the accused person from seeking anticipatory bail, which is an important concomitant of personal liberty of the individual.
51. The aforesaid position is also apparent from a plain construction of the text of Section 18 of the Act, 1989. The words "having committed an offence under this Act" denote that it is only when the accusation in the complaint clearly points towards the commission of an offence under the Act, 1989 that the bar of Section 18 would apply. The minimum threshold for determining whether an offence under the Act has been committed or not is to ascertain whether all the ingredients which are necessary to constitute the offence are prima facie disclosed in the complaint or not. An accusation which does not disclose the necessary ingredients of the offence on a prima facie reading cannot be said to be sufficient to bring into operation the bar envisaged by Section 18 of the Act, 1989. Holding otherwise would mean that even a plain accusation, devoid of the essential ingredients required for constituting the offence, would be enough for invoking the bar under Section 18. In our considered view, such an approach would not be in line with the dictum as laid by this Court while upholding the Constitutionality of Sections 18 and 18-A respectively of the Act,1989.
12. Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, provides for bar on grant of bail as under-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 8 MCRC-2993-2026 section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
13. In the matter of Mohd. Muslim v. State (NCT of Delhi), (2023) 18 SCC 166, while dealing with the issue regarding grant of bail in view of interdict contained under section 37 of the NDPS Act, the Supreme Court observed as under-
19. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence"
and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439 CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under the Special Acts (the NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions.
20. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice : even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such Special Acts, has to address itself principally on two facts : likely guilt of the accused and the likelihood of them not committing any offence upon release. This Court has generally upheld such conditions on the ground that liberty of such citizens has to, in cases when accused of offences enacted under special laws, be balanced against the public interest.
21. A plain and literal interpretation of the conditions under Section 37 (i.e. that court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 9 MCRC-2993-2026 satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
22. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this Court have, therefore, emphasised that the satisfaction which courts are expected to record i.e. that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Mallik, (2009) 2 SCC 624). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436-A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil v. CBI, (2022) 10 SCC 51). Having regard to these factors the Court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.
14. Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999 provides as under-
(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless--
(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and
(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
15. Dealing with stringent provision restricting grant of bail to the accused of offence under MCOCA, in matter of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, the Supreme Court observed as under-
36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose.
38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 10 MCRC-2993-2026 the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Penal Code, 1860 may debar the court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.
44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.
45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.
46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 11 MCRC-2993-2026 the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.
16. In case of Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1, determining the scope of consideration under Section 45 of the Prevention of Money laundering Act, 2002, it was further observed that- 302. It is important to note that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretion vests in the court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act. While dealing with a similar provision prescribing twin conditions in MCOCA, this Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294 held as under :
"44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4)of Mcoca, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.
45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.
46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities.However, while dealing with a special statute like Mcoca having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby." (emphasis supplied)
303. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing Sharma. The Court while dealing with the application for grant Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 12 MCRC-2993-2026 of bail need not delve deep into the merits of the case and only a view of the court based on available material on record is required. The court will not weigh the evidence to find the guilt of the accused which is, of course, the work of the trial court. The court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the trial court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad v. CBI, (2013) 7 SCC 466, the words used in Section 45 of the 2002 Act are "reasonable grounds for believing" which means the court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt.
17. Apparently, the illicit liquor was not recovered from the direct and immediate possession of the applicant. The applicant is implicated in the alleged offence on the basis of information given by co-accused Ankit in police custody.
18. In case of Surinder Kumar Khanna v. Directorate of Revenue Intelligence, reported in (2018) 8 SCC 271, it was observed that-
10. In Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 , this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155 and laid down as under:
(AIR p. 160, paras 8-10) "8. Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948- 49) 76 IA 147 at p.155.
'...It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.' Their Lordships also point out that it is 'obviously evidence of a very weak type. ... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities'.
They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in "support of other evidence". In view of these remarks, it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except insofar as he is corroborated?
9. In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal 559 at p. 588.] where he said that such a confession can only be used to "lend assurance to other evidence against a co-accused "or, to put it in Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 13 MCRC-2993-2026 another way, as Reilly, J. did in Periaswami Moopan, In re , 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77. : (SCC OnLine Mad)'...the provision goes no further than this--where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.'
10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
11. The law laid down in Kashmira Singh v. State of M.P., (1952) 1 SCC 275 :
1952 SCR 526 : AIR 1952 SC 159, was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631- 633 : AIR 1964 SC 1184, wherein it was observed:
"12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal 559 at p. 588. a confession can only be used to "lend assurance to other evidence against a co-accused". In Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77. Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad) '...where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.'
19. Later, in case of Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547, it was held that-
24. Undoubtedly, this Court has in Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337, taken the view that confession by a co-Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12
NEUTRAL CITATION NO. 2026:MPHC-IND:2567 14 MCRC-2993-2026 accusedcontaining incriminating matter against a person would not by itself suffice to frame charge against it. We may incidentally note that the Court has relied upon the judgment of this Court in Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159, We notice that the observations, which have been relied upon, were made in the context of an appeal which arose from the conviction of the appellant therein after a trial. The same view has been followed undoubtedly in other cases where the question arose in the context of a conviction and an appeal therefrom. However, in Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337, the Court has proceeded to take the view that only on the basis of the statement of the co-accused, no case is made out, even for framing a charge.
30. In Law of Evidence by M. Monir, 17th Edn., p. 555, we notice the following discussion regarding the distinction between Section 25 on the one hand and Section 26 on the other hand:
"... The section deals with confessions which are made not to Police Officers but to persons other than Police Officers, e.g., to a fellow prisoner, a doctor or a visitor, and makes such confessions inadmissible if they were made whilst the accused was in the custody of a Police Officer. In Section 25 the criterion for excluding a confession is the answer to the question. "To whom was the confession made?" If the answer is that it was made to a Police Officer, the confession is absolutely excluded from evidence. On the other hand, the criterion adopted in Section 26 for excluding a confession is the answer to the question. "Under what circumstances was the confession made?" If the answer is that it was made whilst the accused was in the custody of a Police Officer, the law lays down that such confession shall be excluded from evidence, unless it was made in the immediate presence of a Magistrate."
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42. A Bench of three learned Judges of this Court in Mahabir Mandal v. State of Bihar, (1972) 1 SCC 748 : 1972 SCC (Cri) 454 : AIR 1972 SC 1331 , had this to say:
"46. Coming to the case of Kasim, we find that there is no reliable evidence as may show that Kasim was present at the house of Mahabir on the night of occurrence and took part in the disposal of the dead body of Indira. Reliance was placed by the prosecution upon the statement alleged to have been made by Kasim and Mahadeo accused at the police station in the presence of Baijnath PW after Baijnath had lodged report at the police station. Such statements are legally not admissible in evidence and cannot be used as substantive evidence. According to Section 162 of the Code of Criminal Procedure, no statement made by any person to a police officer in the course of an investigation shall be signed by the person making it or used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. The only exception to the above Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 15 MCRC-2993-2026 rule is mentioned in the proviso to that section. According to the proviso,when any witness is called for the prosecution in the enquiry or trial, any part of his statement, if duly proved, may be used by the accused and with the permission of the court by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness for the purpose only of explaining any matter referred to in his cross-examination. The above rule is, however, not applicable to statements falling within the provisions of Clause 1 of Section 32 of the Indian Evidence Act or to affect the provisions of Section 27 of that Act. It is also well established that the bar of inadmissibility operates not only on statements of witnesses but also on those of the accused (see Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1 :
(1938-39) 66 IA 66 : AIR 1939 PC 47] ). Lord Atkin, in that case, while dealing with Section 162 of the Code of Criminal Procedure observed: 'Then follows the section in question which is drawn in the same general way relating to "any person". That the words in their ordinary meaning would include any person though he may thereafter be accused seems plain. Investigation into crime often includes the examination of a number or persons none of whom or all of whom may be suspected at the time. The first words of the section prohibiting the statement, if recorded, from being signed must apply to all the statements made at the time and must therefore apply to a statement made by a person possibly not then even suspected but eventually accused....'
47. Reference may also be made to Section 26 of the Indian Evidence Act, according to which no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved against such person. There is nothing in the present case to show that the statements which were made by Kasim and Mahadeo accused on 18-9-1963, at the police station in the presence of Baijnath resulted in the discovery of any incriminating material as may make them admissible under Section 27 of the Indian Evidence Act. As such, the aforesaid statements must be excluded from consideration.
(emphasis supplied)
44. Such a person viz. person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned and the statement is taken by the police officer. A confession, which is made to a police officer, would be inadmissible having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act would also be inadmissible. A confession unless it fulfils the test laid down in Pakala Narayana Swami and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This,however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC.
45. Bar under Section 162 CrPC, no doubt, operates in regard to the Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 16 MCRC-2993-2026 statement made to a police officer in between two points of time viz. from the beginning of the investigation till the termination of the same. In a case where statement containing not a confession but admission, which is otherwise relevant and which is made before the investigation commences, may be admissible. We need not, however, say anything more.
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50. From the statement of the law contained in CBI v. V.C. Shukla, (1998) 3 SCC 410, it becomes clear as to what constitutes confession and how if it does not constitute confession, it may still be an admission. Being an admission, it may be admissible under the Evidence Act provided that it meets the requirements of admission as defined in Section 17 of the Evidence Act. However, even if it is an admission, if it is made in the course of investigation under the CrPC to a police officer, then, it will not be admissible under Section 162 CrPC as it clearly prohibits the use of statement made to a police officer under Section 161 CrPC except for the purpose which is mentioned therein. Statement given under Section 161, even if relevant, as it contains an admission, would not be admissible, though an admission falling short of a confession which may be made otherwise, may become substantive evidence.
51. A confession made to a police officer is clearly inadmissible. The statement relied on by the respondent is dated 11-4-1996 and the appellant was arrested on 11-4-1996. This is pursuant to the FIR registered on 10-4- 1996. The statement dated 11-4-1996 is made to a police officer. This is clear from the statement as also the letter dated 10-8-1996 (Annexure R-6) produced by the respondent. It is clearly during the course of the investigation. Even if it does contain admissions by virtue of Section 162 and as interpreted by this Court in V.C. Shukla, such admissions are clearly inadmissible.
52. If the statement made by the appellant on 11-4-1996 is inadmissible, then, there will only be the statement of the co-accused available to be considered in deciding whether the charge has to be framed against the appellant or not. It is here that the law laid down by this Court in Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337 becomes applicable.
20. The following broad principles can be drawn from aforestated propositions of law-:
1. The exclusion of bail rights under special statute should be strictly construed to protect human liberty and the prohibition applies only when a prima facie case under the Act is established.
2. Prima facie, a Latin term means "at first sight". When the necessary ingredients to constitute the alleged offence are not made out upon the reading of the material submitted after investigation, no case can be said to exist prima facie.
3. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. The court is only required to record Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 17 MCRC-2993-2026 its view on probability based on the material collected during investigation.
4. Courts must independently and judicially assess whether the accusation demonstrates the necessary elements of an offence. If these ingredients to constitute alleged offence are absent, no prima facie case exists to justify arrest, which is a crucial aspect of personal liberty.
5. If the material submitted with the final report does not reveal a prima facie offence, the restriction under Section 59-A of the M.P. Excise Act would not apply.
6. It is difficult, rather almost impossible, to precisely predict the future conduct of an accused, the Court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.
7. The statements or confessions made to police officers during investigation are inadmissible under Section 162 of CrPC and Section 26 the Evidence Act, unless made in the immediate presence of a Magistrate or result in discovery of incriminating material. Even admissions made during police investigation under Section 161 CrPC are barred by Section 162 CrPC and cannot be used as substantive evidence.
8. Mere statement or confession by a co-accused containing incriminating matter against a person would not, by itself, suffice to frame charge. (Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337). It cannot constitute prima facie case to attract the restriction under Section 59-A of the M.P. Excise Act.
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22. No incriminating material was recovered to prima facie connect the applicant with the alleged offence in furtherance of the information of other accused Ankit in police custody. No 'Call Detail Report' or money trail was gathered to show communication and complicity of the applicant, as alleged. In view of above discussion and in the considered opinion of this Court, the interdict contained under section 59A of the M. P. Excise Act would not apply against the applicant. ..........."
7. According to the accusation on case diary, Police squad of the Police Station, Makadon received secret information about transportation of illicit liquor on 11.03.2025. Accordingly, check point was installed. Accused Anees alias Raju riding a motorcycle was intercepted with gunny bag was tied on the back seat of motorcycle. On search of the gunny bag, country made plain liquor, total quantity 57.6 bulk liters was recovered and seized. The Police Station, Makadon registered FIR for offence punishable under Section 34(2) of M P Excise Act against accused Anees alias Raju. Anees was arrested on the spot. He in his memo recorded u/s Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 18 MCRC-2993-2026 23(2) of Bhartiya Sakshya Adhiniyam 2023 informed that he alongwith his associates Arjun, Kanha alias Shivraj, Santosh, Sheru alias Sher Singh and Ajay Singh(applicant) were transporting the illicit liquor from Shajapur for selling it in Makadon. Applicant Ajay and co-accused Sheru were given notice under Section 35 of BNSS, 2023. After investigation, the final report was filed by the Court of Judicial Magistrate First Class, Tarana on 12.01.2026. Learned Judicial Magistrate First Class took cognizance u/S 34(2) of Excise Act. The bail application filed by applicant Ajay was rejected and he was taken into custody. Applicant Ajay Singh filed application for bail before the learned Additional Session Judge, Tarana, relying on the order passed by this Court on 01.12.2025 in M.Cr.C. No. 54226/2025 [Prashant alias Lucky(supra)]. Learned Session Judge rejected the application for bail in view of the interdict contained under Section 59A of M.P. Excise Act vide order dated 13.01.2026 by observing that the proposition of law laid down in the case of Prashant alias Lucky(supra) does not apply to the prosecution of present applicant.
8. In the case in hand, the applicant has been implicated merely on the basis of information of other accused in police custody. No incriminating material, much less, the illicit liquor was recovered and seized at the instance of the applicant, in furtherance of the information. There is no communication details reflected by the Call Detail Report or the money trail showing complicity of the applicant in the alleged offence. The trial Court and the Session Court committed manifest error in rejecting the application for bail merely in view of the interdict contained under Section 59A of the M.P. Excise Act, without considering prima-facie complicity of the applicant in the alleged crime. Learned Session Judge did not record any reason for deviating or distinguishing the aforestated proposition of law laid down Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12 NEUTRAL CITATION NO. 2026:MPHC-IND:2567 19 MCRC-2993-2026 in the case of Prashant alias Lucky (supra).
9. As informed, the applicant has family responsibility. Considering these aspects, there appears to be no possibility of fleeing from justice. In absence of substantial criminal past and previous conviction for any offence, considering the socio-economic status of the applicant, there appears to be no likelihood of recidivism or tampering with evidence or influencing the witnesses by the applicant. The offence is triable by Judicial Magistrate First Class. There appears to be no compelling reason to continue incarceration of the applicant.
10. Considering the rival contentions and overall circumstances of the case, in the light of aforestated facts, but without commenting on the merits, this Court is inclined to release the applicant on bail. Thus, the application is allowed.
11. Accordingly, it is directed that applicant- Ajay Singh shall be released on bail in connection with Crime, as mentioned in first paragraph of this order, upon furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one surety of the same amount to the satisfaction of the trial Court, for compliance with the following conditions : (For convenience of understanding by accused and surety, the conditions of bail are also reproduced in Hindi as under):-
(1) Applicant shall remain present on every date of hearing as may be directed by the concerned court; (1) आवेदक संबंिधत यायालय के िनदशानुसार सुनवाई क येक ितिथ पर उप थत रहे गा । (2) Applicant shall not commit or get involved in any offence of similar nature; (2) आवेदक समान कृ ित का केाई अपराध नह ं करे गा या उसम स मिलत नह ं होगा । (3) Applicant 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 them/him/her from disclosing such facts to the Court or to the police officer;
(3) आवेदक करण के त य से प रिचत कसी य को य या अ य प से लोभन , धमक या
वचन नह ं दे गा, जससे ऐसा य ऐसे त य को यायालय या पुिलस अिधकार को कट करने से
िनवा रत हो ।
(4) Applicant shall not directly or indirectly attempt to tamper with the evidence or allure, pressurize or threaten the witness;Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12
NEUTRAL CITATION NO. 2026:MPHC-IND:2567 20 MCRC-2993-2026 (4) आवदे क य या अ य प से सा य के साथ छे डछाड करने का या सा ी या सा य को बहलाने-फुसलाने, दबाव डालने या धमकाने का यास नह ं करे गा ।
(5) During trial, the applicant shall ensure due compliance of provisions of Section 309 of Cr.P.C./346 of Bharatiya Nagarik Suraksha Sanhita, 2023 regarding examination of witnesses in attendance; (5) वचारण के दौरान, उप थत गवाह से पर ण के संबंध म आवेदक धारा ३०९ दं . .सं./ ३४६ भारतीय नाग रक सुर ा सं हता, 2023 के ावधान का उिचत अनुपालन सुिन त करे गा ।
12. This order shall be effective till the end of trial. However, in case of breach of any of the preconditions of bail, the trial Court may consider, on merit, cancellation of bail without any impediment from this order.
13. The trial Court shall get these conditions reproduced on the personal bond by the accused and on surety bond by the surety concerned. If any of them is unable to write, the scribe shall certify that he/she had explained the conditions to the concerned accused or the surety.
14. A copy of this order be forwarded to the Principal District Judge, Ujjain and the District Judge(Inspection and Vigilance), Indore to educate concerned Session Judge with the law of precedent and the binding effect of proposition of law laid down by the High Court.
C.C. as per rules.
(SANJEEV S KALGAONKAR) JUDGE sh Signature Not Verified Signed by: SEHAR HASEEN Signing time: 28-01-2026 20:00:12