Gujarat High Court
Mahendra vs State on 6 April, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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CR.MA/413/2010 1/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 413 of 2010
=========================================================
MAHENDRA
HARIBHAI MAKWANA
Versus
STATE
OF GUJARAT
=========================================================
Appearance :
MR
SUNIL M AGRAWAL for Applicant.
MR JM PANCHAL, SPECIAL PUBLIC
PROSECUTOR for
Respondent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 06/04/2010
ORAL
ORDER
This is an application preferred under section 439 of the Criminal Procedure Code by the applicant who has been arrested in connection with F.I.R. being C.R. No. I-252 of 2009 registered with Odhav Police Station for offences punishable under sections 302, 328, 114, 272, 273, 109, 201 and 120-B of the Indian Penal Code read with sections 65(a)(b)(c), (d) and (e), 66(1)(b), 67 (1) (c), 68, 72, 75, 81 and 83 of the Bombay Prohibition Act.
It is alleged in the FIR which was lodged on 07.07.2009 that husband of the complainant had gone to his service and in the afternoon about 1.00 PM, he came back and stated that he was not feeling well. It is further alleged in the complaint that after some time, husband of the complainant said that he cannot see anything, and therefore, he was taken to the hospital where the Doctors, after examining him, declared him dead. Thereafter, on 11.07.2009, the investigating agency submitted a report to the learned Metropolitan Magistrate, Court No.11, Ahmedabad City to add certain further charges. A similar application was also made on 04.09.2009 before the learned Magistrate. After investigation in the matter, the investigating agency ultimately submitted charge sheet in the matter for offences punishable under sections 302, 307, 328, 272, 273, 201, 109, 114 and 120B of the Indian Penal Code and sections 65(a)(b)(c), (d) and (e), 66(1)(b), 67 (1) (a), 68, 72, 75, 81 and 83 of the Bombay Prohibition Act Mr. S.M. Agarwal, learned advocate for the applicant submitted that the applicant's name no where figures in the FIR or in any other relevant papers prior to filing of the charge sheet, yet the investigating agency has arraigned him as accused No. 31 in the charge sheet. Learned advocate submitted that considering the role attributed to the applicant, he is not the main culprit who is involved in the commission of the alleged offence and therefore he deserves to be enlarged on bail. He submitted that even as per the prosecution case, the only allegation against the applicant is that he has sold country made liquor and therefore the provisions of sections 272 and 273 of Indian Penal Code is not prima facie made out against the applicant as he is not responsible in adulterating the liquor which is done at the stage of manufacturing. He submitted that even the provisions of sections 302 of IPC cannot be attracted against the applicant as even the basic ingredients are not satisfied in the case of the applicant. He submitted that there was nothing on the record to suggest that there was any meeting of mind as far as the present applicant is concerned and therefore the provisions of section 120.B of IPC cannot be made applicable to the present applicant. He further submitted that even if the applicant was selling liquor, that by itself cannot be said that the applicant caused or was privy in causing death of any person so as to bring him within the ambit and scope of 'murder' as defined under section 302 of IPC or attempt to murder as defined in section 302 of IPC. He submitted that the investigating officer, with a view to ward off the public outcry and the media exposure given to the incident, has embarked upon a plan to add as many sections as possible. He submitted that the applicant was not involved in preparation or manufacture of any illicit liquor and therefore, there is no question of the applicant adding any deadly or spurious material to the liquor. He further submitted that at the most, the applicant can be charged for offences punishable under the Bombay Prohibition Act. Learned advocate has also places reliance on the statement of witnesses in support of the submissions made at the bar and submitted that there is nothing on the record to indicate the involvement of the applicant in the commission of offence. Learned advocate submitted that even prima facie case is not made out against the applicant, and, therefore, the prayer as set out in the application deserves to be granted and the applicant deserves to be enlarged on regular bail.
Mr. J.M. Panchal, learned Special Public Prosecutor appearing for the opponent State submitted that the applicant was having link with one Ravindrasing Jayaram, Vinod @ Dagri Chandulal Chauhan, Nazruddin Kadarbhai Shaikh and Minaben and that fact is reflected in the analysis C.D.R. of the mobile phone calls which was recovered from the possession of the applicant and submitted that numerous mobile phone calls where made between these persons. Learned Special Public Prosecutor has also placed reliance on the report of the Forensic Science Laboratory in support of the submission that the liquor was found to contain methanol which is hazardous to the health of a person who consumes it. Thus, considering the role attributed to the applicant and the manner in which the offence is committed by him in tandem with other accused and seriousness as well as gravity of offence in which the applicant is involved, no discretionary relief be granted to the applicant as in all, 149 persons have lost their lives and so many families have lost their bread winners in the family. Learned Special Public Prosecutor also relied on the affidavit in reply filed on behalf of the State by M.D. Chowdhary, Police Inspector, Crime Branch in support of the aforesaid contention. Learned Special Public Prosecutor also placed reliance on the report of the Forensic Science Laboratory wherein it has been clearly mentioned that upon analysis, presence of methanol and ethanol were found. He, therefore, submitted that the activities in which the applicant is involved would also have a very adverse or deleterious effect on the Society as a whole and therefore, involvement of the applicant in the commission of offence requires to be viewed very seriously and the application deserves to be dismissed.
Learned Special Public Prosecutor also relied on the judgment in STATE OF AP vs. R. PUNNAYA reported in AIR 1977 SC 45 and submitted that considering the ratio laid down in the aforesaid judgment, the case of the applicant would also squarely fall within the exceptions carved out in section 299, IPC. Thus, considering the role attributed to the applicant and the manner in which the offence is alleged to have been committed by the applicant along with other accused persons, no discretionary relief be granted to the applicant.
I have heard learned advocate Mr. Agarwal, and Mr. J.M. Panchal, learned Special Public Prosecutor for the opponent State, at length and in great detail. I have carefully taken into consideration the averments made in the application as well as role of the applicant which is reflected in the case papers. The applicant is charged for the offence punishable under sections 302, 328, 114, 272, 273, 109, 201 and 120-B of the Indian Penal Code read with sections 65(a)(b)(c), (d) and (e), 66(1)(b), 67 (1) (c), 68, 72, 75, 81 and 83 of the Bombay Prohibition Act. The applicant used to purchase liquor from Ravindra Jayaram Pawar, Nazir Mohammad Noormohammad and Nazir Hussien Kadarbhai Sheikh. The analysis of the mobile phone calls submitted by learned Special Public Prosecutor clearly indicates that the applicant used to talk on mobile phone with other accused persons who are manufacturing and selling the liquor. Thus, the entire link connecting the applicant with the crime is prima facie established.
I have considered the statements of witnesses available ion the compilation. Muddamal which was recovered was sent to Directorate of Forensic Science Laboratory for the purpose of analysis, and the report given by the FSL is also taken into consideration by me. Detailed analysis given by the Scientific Officer is also produced for my perusal which shows that methanol and ethanol were found in the samples which were sent to FSL. Methanol and ethanol are poisonous substances and if it is added to the liquor, then, it is likely to have adverse effect on the body of the person who consumes it. The applicant is involved in very serious offences. Considering the gravity and nature of the offence in which the applicant is involved, the same, in my view, would have a very serious effect on the social fabric of the Society. Manufacturing and supplying of liquor is, as such, prohibited in the State of Gujarat. In view of the aforesaid facts and circumstances of the case, even using quality raw material, its production and supply are an illegal activities in the State. In the present case, the applicant has supplied liquor manufactured illegally and that too, by using poisonous substance of methanol which everyone knows that if anyone consumes it, he is likely to have a very adverse effect on the body and can cause death or such bodily injury as is likely to cause death. The nature of accusation against the accused is elaborated in the FIR and so far as the severity of offence is concerned, offence under Sec.302 of IPC is punishable with death or imprisonment for life; offence under Sec.307 is punishable with imprisonment for a term which may extend to ten years and if hurt is caused to any person, the offender shall be liable to imprisonment for life; offence under Section 328 is punishable with imprisonment of either description for a term which may extend to ten years. The applicant is also involved in offences punishable under the Bombay Prohibition Act. Thus, considering the nature of the offence in which the applicant is involved and the manner in which the liquor was distributed to large number of customers having full knowledge that it contains methanol, in my view, it requires to be viewed seriously, as in all, 149 lives have been lost because of consumption of spurious liquor. The Court has also to consider the character of the evidence, circumstances which are peculiar to the accused, reasonable possibility of presence of accused not being secured at the trial, reasonable apprehension of the evidence of the witnesses being tampered with and larger interest of public or State and other similar factors which are relevant in the facts and circumstances of the case. In view of the catena of decisions rendered by the Hon'ble Apex court, detailed examination of the evidence and elaborate documentation of merits of the case is to be avoided by the Court while passing orders on bail applications. Yet the Court has to be satisfied as to whether there is prima facie case against the applicant. Thus, considering the offence in which the applicant is involved, seriousness or gravity of offence, manner in which the offence is committed by the applicant, impact on the Society as a whole and various provisions of offences punishable under sections 302, 328, 114, 272, 273, 109, 201 and 120-B of the Indian Penal Code read with sections 65(a)(b)(c), (d) and (e), 66(1)(b), 67 (1) (c), 68, 72, 75, 81 and 83 of the Bombay Prohibition Act which are invoked in the present case, I am of the considered view that no discretionary relief is required to be granted to the applicant as provided under Sec.439 of the Code of Criminal Procedure.
9. For the foregoing reasons, there is no merit in the application preferred by the applicant and the same is hereby dismissed. Rule is discharged.
mathew [
H.B. ANTANI, J.]
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