Himachal Pradesh High Court
Ajay Grover vs State Of Rajasthan on 22 July, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 22nd DAY OF JULY, 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CRIMINAL MISC. PETITION (MAIN) No.923 of 2022
Between:-
AJAY GROVER
S/O LATE SH. MANOHAR LAL GROVER,
R/O HOUSE NO.5857,
DUPLEX MODERN HOUSING COMPLEX,
PHASE III, MANIMAJARA,
CHANDIGARH, 161001,
AGED ABOUT 57 YEARS.
......PETITIONER
(BY MR. N.S.CHANDEL, SENIOR ADVOCATE WITH
MR. LOVNEESH SINGH THAKUR, ADVOCATE. )
AND
STATE OF HIMACHAL PRADESH
......RESPONDENT
(BY MR. ARVIND SHARMA, ADDITIONAL ADVOCATE
GENERAL WITH MR. NARENDER SINGH THAKUR,
DEPUTY ADVOCATE GENERAL AND MR. RAM LAL
THAKUR, ASSISTANT ADVOCATE GENERAL.
SI MUNISH KUMAR, POLICE STATION
SUNDERNAGAR, DISTRICT MANDI, PRESENT IN
PERSON ALONGWITH RECORD)
Reserved on: 15.07.2022
Decided on: 22.07.2022
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2
This petition coming on for orders this day, the
Court passed the following:
ORDER
Due to consumption of illegally manufactured .
spurious country made liquor, seven persons lost their lives in January, 2022 and 14 others were injured. FIR No.15/2022 was registered regarding this on 19.01.2022 under Sections 304, 308, 328, 420, 468, 471, 201, 109 and 120B of the Indian Penal Code and Sections 39, 40 and 41 of the H.P. Excise Act at Police Station Sundernagar, District Mandi. Petitioner is one of the accused persons therein. He was arrested on 26.01.2022.
Vide order dated 05.05.2022, petitioner was granted interim bail for a period of 21 days in Cr.MP(M) No.819 of 2022 on account of alleged illness of his wife. In the present petition, his prayer is for release on regular bail.
Even in this petition, Cr.MP No.1597 of 2022 was moved on 02.06.2022 seeking interim bail on the projected ground that petitioner's wife was diagnosed with 'cancer of endometrium' requiring chemotherapy and radiotherapy treatment. The reasons put forth in the application for grant of interim bail were strongly disputed on facts by the investigating agency in its status report. The application for ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 3 interim bail was eventually not pressed by the petitioner and was dismissed as withdrawn on 20.06.2022.
2. Learned Senior Counsel for the petitioner has .
argued the instant bail petition on following two broad heads:-
(i). The petitioner deserves to be granted statutory bail under Section 167(2) of the Code of Criminal Procedure (Cr.PC).
(ii). On merits of the matter also, the petitioner deserves to be enlarged on bail.
For convenience, the above grounds are
separately discussed hereinafter.
3. Statutory bail:-
For obtaining statutory bail, it was contended, firstly that a defective police report was filed in the learned trial Court by the investigating agency. Objection in this police report was pointed out by the learned trial Court.
Secondly, that the police report was also incomplete. The report of Forensic Science Laboratory was not made part of the police report. The submission of learned Senior Counsel for the petitioner was that the defective police report was filed only to defeat petitioner's right to get statutory bail ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 4 under Section 167(2) Cr.P.C. Petitioner has a right to be released on statutory bail.
3(i) In (2019) 14 SCC 599, Chapal alias Ramswaroop and another Versus State of Rajasthan, .
Hon'ble Apex Court observed that Section 167 of the code has a definite purpose in that: on the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter.............. The letter and spirit behind enactment of Section 167 of the code mandates that investigation ought to be completed within the prescribed period....................... It is further stipulated that on the expiry of period of ninety or sixty days, as the case may be, accused person shall be released on bail if he is prepared to furnish bail. In the said case, on the 90 th day, there was no charge-sheet in terms of Section 173 of the code for the concerned magistrate to assess the situation whether on merits the accused was required to be remanded to further custody. A charge-sheet filed on 05.07.2018, i.e. within the period prescribed under Section 167 of the Code, was returned to the investigating officer as the same was not in terms of the order passed by the High Court on 03.07.2018. Hon'ble Apex Court observed that the public prosecutor could have submitted before the High ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 5 Court on 03.07.2018 that papers relating to the investigation were to be filed within the time prescribed and a call thereafter could be taken by the Superior Gazetted Officer whether the matter required further investigation in .
terms of Section 173(8) of the code or not. Recourse to this ideal situation was not resorted to. Since there were no papers of investigation before the Magistrate concerned as on completion of 90 days of prescribed period under Section 167 Cr.PC, therefore, the petitioners therein were held Cr.PC.
r to entitled to be admitted to bail in terms of Section 167(2) In 2022 (3) Scale 1, titled Serious Fraud Investigation Office Versus Rahul Modi & Ors, the point that arose for consideration before the Hon'ble Apex Court was whether an accused was entitled for statutory bail under Section 167(2) Cr.PC on the ground that cognizance had not been taken by the Court before the expiry of 60 or 90 days as the case may be from the date of remand.
Taking note of its previous judgments including (2013) 3 SCC 77 (Suresh Kumar Bhikhamchand Jain Versus State of Maharashtra and another), Hon'ble Supreme Court held that once the charge-sheet is filed within the stipulated period, the right of the accused to statutory bail ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 6 comes to an end. The accused thereafter would be entitled to pray for regular bail on merits. Taking of cognizance is not material to Section 167 of the code. Filing of a charge-
sheet is sufficient compliance with the provisions of Section .
167 Cr.PC and that an accused cannot demand release on default bail under Section 167(2) on the ground that cognizance has not been taken before expiry of sixty/ninety days as the case may be. The relevant parts from the judgment are as under:-
"8.
Section The only point that arises for our consideration in this case is whether an accused is entitled for statutory bail under 167(2), CrPC on the ground that cognizance has not been taken before the expiry of 60 days or 90 days, as the case may be, from the date of remand. Section 167(2), CrPC reads as below:
167. Procedure when investigation cannot be completed in twenty-four hours.
xxx xxx xxx xxx xxx (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that --
(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 7 grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding--
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or .
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the raccused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the Page accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I.--For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II.-- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.
::: Downloaded on - 22/07/2022 20:04:25 :::CIS 89. The issue is squarely covered by a judgment of this Court in Bhikamchand Jain (supra), as contended by the Appellant. It is necessary to closely examine the judgment passed in Bhikamchand Jain (supra). The petitioner in the said case was arrested on 11.03.2012 on the allegation of misappropriation of amounts meant for development of .
slums in Jalgaon City. The petitioner therein was accused of committing offences punishable under Sections 120-B, 409, 411, 406, 408, 465, 466, 468, 471, 177 and 109 read with Section 34, IPC and also under Sections 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The contention of the petitioner therein was that he could not have been remanded to custody in view of cognizance not being taken for want of sanction within the statutory period of 90 days. The scheme of the provisions relating to remand of an accused first during the stage of investigation and thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within the period prescribed therein, according to this Court in Bhikamchand Jain (supra). This Court held that in the event of investigation not being completed by the investigating authorities within the prescribed period, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. This Court was of the firm opinion that if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the court has no option but to release the accused on bail. However, once the charge- sheet was filed within the stipulated period, the right of the accused to statutory bail came to an end and the accused would be entitled to pray for regular bail on merits. It was held by this Court that the filing of charge-sheet is sufficient compliance with the provisions of proviso (a) to Section 167(2), CrPC and that taking of cognizance is not material to Section 167. The ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 9 scheme of CrPC is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance and trial. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced, with such Magistrate being vested with power to remand the .
accused to police custody and/or judicial custody, up to a maximum period as prescribed under Section 167(2). Acknowledging the fact that an accused has to remain in custody of some court, this Court concluded that on filing of the charge-sheet within the stipulated period, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309, CrPC. This Court clarified that the two stages are different, with one following the other so as to maintain continuity of the custody of the accused with a court.
10. It is clear from the judgment of this Court in Bhikamchand Jain (supra) that filing of a charge-sheet is sufficient compliance with the provisions of Section 167,CrPCand that an accused cannot demand release on default bail under Section 167(2) on the ground that cognizance has not been taken before the expiry of 60 days. The accused continues to be in the custody of the Magistrate till such time cognizance is taken by the court trying the offence, which assumes custody of the accused for the purpose of remand after cognizance is taken. The conclusion of the High Court that the accused cannot be remanded beyond the period of 60 days under Section 167and that further remand could only be at the post-cognizance stage, is not correct in view of the judgment of this Court in Bhikamchand Jain (supra).
::: Downloaded on - 22/07/2022 20:04:25 :::CIS 1015 A close scrutiny of the judgments in Sanjay Dutt (supra), Madar Sheikh (supra) and M. Ravindran (supra) would show that there is nothing contrary to what has been decided in Bhikamchand Jain (supra). In all the above judgments which are relied upon by either side, this Court had categorically laid down that the indefeasible right of .
an accused to seek statutory bail under Section 167(2), CrPC arises only if the charge-sheet has not been filed before the expiry of the statutory period. Reference to cognizance in Madar Sheikh (supra) is in view of the fact situation where the application was filed after the charge- sheet was submitted and cognizance had been taken by the trial court. Such reference cannot be construed as this Court introducing an additional requirement of cognizance having to be taken within the period prescribed under proviso (a) to Section 167(2), CrPC, failing which the accused would be entitled to default bail, even after filing of the charge-sheet within the statutory period. It is not necessary to repeat that in both Madar Sheikh (supra) and M. Ravindran (supra), this Court expressed its view that non-filing of the charge-sheet within the statutory period is the ground for availing the indefeasible right to claim bail under Section 167(2), CrPC. The conundrum relating to the custody of the accused after the expiry of 60 days has also been dealt with by this Court in Bhikamchand Jain (supra). It was made clear that the accused remains in custody of the Magistrate till cognizance is taken by the relevant court. As the issue that arises for consideration in this case is squarely covered by the judgment in Bhikamchand Jain (supra), the order passed by the High Court on 31.05.2019 is hereby set aside."
3(ii) The first point raised by the petitioner is that it was a case of filing of defective police report as objection in ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 11 it was pointed out by the learned trial Court, therefore, it cannot be construed to be a proper police report. Filing of improper and incomplete police report will not take away petitioner's right to get statutory bail.
.
Petitioner's contentions do not hold much substance. The FIR was registered on 19.01.2022. The petitioner was arrested on 26.01.2022. Police report under Section 173 Cr.PC was filed on 18.04.2022. This was within the period of 90 days provided under Section 167 Cr.PC for filing the police report. The investigating agency in its status report has submitted that learned Trial Court's objection to the police report was in respect of handwritten statement of some of witnesses. This objection was met with by the investigating agency. Typed copies of statements of witnesses have since been supplied to the learned Trial Court. The learned Court did not point out any objection per-se in the police report.
3(iii) The direction of the learned trial Court to the investigating agency to supply typed copies of handwritten statements of certain witnesses accompanying the police report/challan cannot be construed to imply that the challan was defective. No objection was pointed out by the learned Trial Court in the police report. The typed copies of ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 12 handwritten statements of the witnesses provided on the directions of the learned Trial Court were for facilitation of the Court. Such direction had no impact upon appropriateness or validity of the police report.
.
3(iv) The MLCs of deceased persons mention that deaths were caused due to methyl alcohol poisoning. All these persons and several others injured had consumed illegally manufactured spurious liquor. Chemical analysis report of RFSL Mandi reports detection of methyl alcohol in the dead bodies. CTL Kandaghat has found the liquor samples as not fit for human consumption due to presence of methyl alcohol. Chemical and forensic analysis reports concerning the alleged illegal and spurious liquor are yet awaited by the respondent. The report of State Forensic Science Laboratory (SFSL) regarding handwriting of accused persons is also awaited. The status report submits that the reports on their receipt will form part of the supplementary report to be presented before the Court.
Non-filing of SFSL report alongwith police report presented by the investigating agency on 18.04.2022 will not make the police report defective as alleged for the petitioner.
Section 173(8) Cr.P.C. provides for further investigation in respect of an offence after a report under Sub-Section 2 ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 13 thereof have been forwarded to the magistrate. The investigating agency is entitled to not only carry out further investigation in respect of offences after submitting its report under Section 173(2), but can also furnish further .
evidence oral or documentary and further report regarding such evidence. Provisions of Section 173(2) and (8) read as under:-
"2 (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c)
r the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(h) whether the report of the medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the Indian Penal Code.
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
3 to 7. x x x x x x x x x x x x x x x x x x x x x x x x x x x
8. Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-
::: Downloaded on - 22/07/2022 20:04:25 :::CIS 14sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)."
Taking into consideration all the above aspects, it cannot be said that the investigating agency had filed a .
defective/incomplete police report before the learned Trial Court. The petitioner, thus, is not entitled for statutory bail.
4. Merits of the bail petition:-
4(i) The prosecution case against the bail petitioner is that the main accused persons Gaurav Minhas and others during investigation divulged the details of role played by Ajay Grover (present petitioner) regarding supply of raw material for the illegal manufacture of spurious country made liquor. According to the prosecution, the investigation carried out by the police reveal that:-
4(i)(a) The petitioner had started a blending and bottling plant in the name of M/s Yamuna Beverages Private Limited at Paonta Sahib, District Sirmour. He ran it till the year 2011. The petitioner joined this plant again as a Manager.
4(i)(b) In the year 2019, the petitioner alongwith his close friend Bhupesh Gupta opened a firm under the name M/s Organic Liquor. The name of the firm was later on changed to Handoor Liquor.::: Downloaded on - 22/07/2022 20:04:25 :::CIS 15
4(i)(c) The petitioner and his friend Bhupesh Gupta started a firm by the name of M/s Akash Chemicals at Nalagarh. This was being run by them in a rented premises in the form of shed/store owned by one Dhani Ram. L-19 .
licence was procured by them from the Excise Department for storing and selling rectified spirit in M/s Aakash Chemicals. This spirit is used only for manufacture of sanitizers. Bhupesh Gupta got too occupied in 'Aakash Hospital and Diagnosis' at Nalagarh. For that reason, under an affidavit, he handed over the entire work of M/s Aakash Chemicals to the petitioner. The petitioner was inducted as partner and manager in M/s Aakash Chemicals. Bhupesh Gupta executed a power of attorney on 11.10.2021, handing over the entire work relating to M/s Akash Chemicals to the bail petitioner.
4(i)(d) The bail petitioner used to look after the complete works of M/s Aakash Chemicals with the assistance of one Santosh Kumar (one of the co-accused persons in the FIR).
4(i)(e) As per record maintained by the Excise Department, rectified spirit was purchased by M/s Aakash Chemicals only till 31.05.2021. These facts have been ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 16 corroborated in the statements of Bhupesh Gupta, Mahender, Bir Singh and Jamura.
4(i)(f) On 02.08.2021, the bail petitioner called co-
accused Santosh, passed on a mobile number to him, .
informed that holder of that number was bringing 12000 litres of spirit tanker and directed him (Santosh Kumar) to get the said spirit unloaded in M/s Akash Chemicals store.
Accordingly, Santosh Kumar unloaded the spirit with the assistance of Bir Singh, Ashok, Mahender and Jamura.
This spirit was stored in M/s Aakash Chemicals and subsequently sold in different quantities on different dates to different accused persons, viz. Gaurav Minhas alias Goru, Virender alias Gagan, Gurdev and Anil Kumar alias Manu etc. The spirit was unloaded and loaded with the aid of labourers Bir Singh, Ashok Kumar, Mahender and Jamura. The spirit unloaded from the tanker by Santosh Kumar on the asking of the petitioner and sold to other co-
accused persons was used for illegal manufacture of spurious liquor. On 04.01.2022, Gurmeet Singh working as driver of accused Virender, died after directly consuming this spirit. Virender contacted Santosh Kumar and asked for getting the spirit checked up. Santosh Kumar got a bottle of spirit from Virender. It was sent to 'Auriga Lab' ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 17 Nalagarh for checking under the name of M/s Yamuna Beverages Private Limited. Report in this regard received by Santosh Kumar on 12.01.2022 was forwarded by him through whatsapp to the bail petitioner. The bail petitioner .
confirmed the report to be correct. Subsequently, using this spirit, the accused Virender alias Gagan illegally manufactured spurious liquor marked Santra. It was supplied in Salapar area causing deaths of several persons and injuries to various others.
4(i)(g) Financial
transactions between
petitioner and co-accused Virender alias Gagan were also r the bail detected by the investigating agency. Virender has been accused of illegally manufacturing spurious liquor at Gujjar Hatti.
4(ii) Learned senior counsel for the petitioner contended that:-
4(ii)(a) The petitioner had no role to play in the offences alleged to have been committed in the FIR. He was neither involved in running of M/s Yamuna Beverages Private Ltd.
at Paonta Sahib nor M/s Akash Chemicals at Nalagarh.
The petitioner was appointed as authorized signatory of M/s Yamuna Beverages Private Ltd. on 22.02.2020. This authorization was withdrawn on 08.10.2021. The ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 18 petitioner was not authorized signatory of M/s Aakash Chemicals. The firm was under the proprietorship of Bhupesh Gupta. It was Bhupesh Gupta, who had executed lease deed for renting the premises of Dhani Ram for the .
firm.
4(ii)(b) The petitioner had no links with accused Santosh Kumar, in so far as recovery and sale of spirit is concerned.
4(ii)(c) Rs.50,000/- via two transactions of Rs.25,00/-
his wife.
each were credited in the joint account of the petitioner and The petitioner was not aware that this amount was credited by accused Virender alias Gagan. In fact, the petitioner was in need of Rs.50,000/- to settle his loan amount under one time settlement scheme with the UCO Bank Panchkula. He requested Santosh Kumar "who became friend with the petitioner through Sohan Singh about two years back". It was Santosh Kumar who had arranged for Rs.50,000/- to help the petitioner to clear his loan amount. But the petitioner was not aware that the money actually came from the account of accused Virender alias Gagan.
4(ii)(d) The prosecution story otherwise stands on loose footing. 12000 litres of spirit is said to have been purchased ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 19 by Santosh Kumar for paltry amount of Rs.55,000/-. This is not believable. The spirit unloaded from the tanker is said to have been transferred to 170 drums. However, the same spirit is said to have been sold in 226 drums. There is .
apparent a mismatch.
4(ii)(e) During investigation, accused Virender alias Gagan is stated to have disclosed that Santosh Kumar on 09.12.2021 provided him six drums of spirit and said that he had no spirit left with him. On 29.12.2021, he informed Santosh Kumar about his talks regarding purchase of 5 drums from one Ladi in Ludhiana, who had liquor vends in Phillaur Nagar. During investigation, Virender Kumar is further stated to have informed Santosh Kumar on 04.01.2022 that his driver Gurmit Singh died after consuming the spirit purchased from Ladi. He requested Santosh Kumar for testing the spirit contained in 5 drums.
At his insistence, Santosh sent one litre spirit sample obtained from these drums for testing to 'Auriga Lab.' Learned senior counsel for the petitioner argued that in any case, Gurmit Singh's death was caused after consuming the spirit purchased from Ladi of Ludhiana and not from the spirit unloaded from the tanker. In nut shell, the case of the petitioner as projected by learned senior counsel is that ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 20 the petitioner had absolutely no role whatsoever to play in the commission of offences alleged in the FIR.
Opposing the bail plea, on behalf of the State, it was pointed out that the petitioner was not a mere illegal .
supplier of rectified spirit, which was sold for illegal manufacture of spurious liquor, but was also involved with other accused persons in illegal manufacture of spurious liquor. Prosecution has enough evidence indicating petitioner's deep implication in the FIR. He has criminal track record. He has committed very serious and heinous offences against the society at large. Learned Additional Advocate General also submitted that petitioner will also try to win over the prosecution witnesses and tamper the prosecution evidence if released on bail. Prayer was made for dismissal of the bail petition.
5. Observations Though the evidence collected by the investigating agency is not to be discussed in detail while considering the bail petition, but for the purpose of deciding the instant bail petition on the specific points raised by learned senior counsel for the petitioner, reference to some investigation on prima facie basis has become necessary:-
::: Downloaded on - 22/07/2022 20:04:25 :::CIS 21(i) The petitioner and accused Santosh Kumar had exchanged 1286 calls in six months prior to the registration of FIR. The call detail record has been procured by the investigating agency. Both were in constant touch with .
each other. As per investigations, umpteenth number of whatsapp messages have been found to have been sent from the mobile phone number of accused Santosh Kumar to the mobile phone number of petitioner. However, these messages were not reflected in petitioner's number. It seems that petitioner has deleted the whatsapp messages, received from accused Santosh Kumar.
(ii) Accused Santosh Kumar is stated to have disclosed that the petitioner called him on 02.08.2021, passed on a particular cell number to him and informed that 12000 litres spirit tanker was coming to Baddi and he should unload that spirit at M/s Aakash Chemicals store Nalagarh. On the asking of petitioner, Santosh Kumar unloaded the spirit in 170 drums purchased by him from scrap dealer Gulshan. The tanker driver was paid Rs.55000/-. All this was statedly reported by Santosh Kumar to the petitioner on phone.
(iii) The petitioner had links with M/s Yamuna Beverages Private Ltd. Paonta Sahib as well as M/s Aakash ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 22 Chemicals Nalagarh. The petitioner was inducted as authorized signatory for M/s. Yamuna Beverages Private Ltd. on 20.02.2020. He was authorized signatory of this company on 02.08.2021 when he had directed Santosh .
Kumar to unload the spirit from the tanker. His authorization was revoked only on 12.10.2021. Extra Neutral Alcohol (ENA) had last reached in M/s Yamuna Beverages Private Ltd. on 30.06.2021. No further ENA was requisitioned in this company thereafter. At the time of last the petitioner was the r to requisitioning of ENA in M/s Yamuna Beverages Private Ltd., authorised signatory of the company. In M/s Aakash Chemicals, the petitioner was inducted as partner/manager by the proprietor Bhupesh Gupta. By executing a deed of power of attorney on 11.10.2021, Bhupesh Gupta authorized the petitioner to look after all works relating to M/s Aakash Chemicals.
Prima facie it appears that the petitioner had deep involvement with the M/s Yamuna Beverages Private Ltd.
Paonta Sahib as well as M/s Aakash Chemicals Nalagarh at the time of unloading of the spirit in question and its subsequent sale to persons who are accused of illegal manufacture of spurious liquor. According to the investigation carried out by the respondent, M/s Aakash ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 23 Chemicals was authorised by the Excise Department under L-19 licence dated 28.07.2020 for wholesale and retail sale of rectified spirit, ENA, Absolute alcohol, Sds, Ethyl Alcohol.
The said licence was valid till 31.05.2021. The firm had .
surrendered this licence on 25.06.2021. ENA/spirit could not have been brought to M/s Aakash Chemicals after 25.06.2021, yet, the investigation prima facie shows that the spirit was stored and sold at M/s Aakash Chemicals.
(iv) The fact that the petitioner had strong links with M/s Aakash Chemicals is also borne out from the investigation carried out from Dhani Ram, the owner of the premises where M/s Akash Chemicals was being run on lease basis. He is said to have disclosed renting out the premises to Dr. Bhupesh Gupta at Rs. 15000/- per month.
According to him, the rent for the month of September 2021 was paid by the petitioner as he was partner in the said firm. On 31.12.2021 also, it was the petitioner who had transferred Rs. 20,000/- through RTGS in the account of Dhani Ram towards rent of the premises. He is further stated to have disclosed that the petitioner used to work in M/s Aakash Chemicals with Santosh Kumar.
(v) Petitioner's case is that he had no links with one of the main accused person Virender @ Gagan. Financial ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 24 transactions between the petitioner and the main accused Virender alias Gagan have also surfaced during investigation. Virender is one of the persons accused of having illegally manufactured spurious liquor. The story .
put forth by the petitioner that the petitioner had requested Santosh Kumar for loaning him Rs. 50,000/- in order to clear his (petitioner's) loan amount of Rs.5,50,000/- in the UCO Bank and that Santosh Kumar without petitioner's knowledge had asked the main accused Virender alias Gagan to credit this amount into petitioner's account, at this stage, appears to be farfetched in view of the over-all evidence gathered in the investigation.
(vi) Insofar as petitioner's argument of unbelievable payment of paltry amount of Rs.55,000/- for the spirit is concerned, suffice to observe at this stage that it is not the case of the prosecution that Rs.55,000/- was paid for 12000 litres of spirit, rather as per the statement of co-
accused Santosh Kumar, it was paid to the tanker driver.
Whether it was in lieu of transportation charges or otherwise, is to be considered during trial.
(vii) It cannot be said at this stage that the deaths which took place on consumption of spurious liquor were not related to the spirit got unloaded by co-accused ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 25 Santosh Kumar on the asking of the petitioner and sold thereafter to persons accused of having illegally manufactured spurious liquor. All these are the aspects, which are to be proved during trial by leading cogent .
evidence. At this stage, there is sufficient evidence to link the petitioner with M/s Yamuna Beverages Private Limited Paonta Sahib, with M/s Aakash Chemicals Nalagarh, with the spirit unloaded on 02.08.2021 by accused Santosh Kumar, with co-accused persons Santosh Kumar and Virender alias Gagan, with illegal storage of the spirit, with illegal sale of illegally stored spirit, and with illegal manufacturing of spurious liquor. Therefore, it cannot be said at this stage that the petitioner was innocent and has no role to play in the FIR. The petitioner has criminal track record. Four FIRs registered against him are still pending viz:- (i) FIR No. 83 of 2009, dated 28.05.2009, registered at Police Station New Shimla under Sections 341, 323 & 34 of the Indian Penal Code ; (ii) FIR No. 440 of 2017, dated 25.12.2017, registered at Police Station Zirakpur, District Mohali, Punjab under Section 61 of the Excise Act & 420 of Indian Penal Code ; (iii) FIR No. 6 of 2021, dated 16.10.2021, registered at State Vigilance & Anti-Corruption Bureau, Una H.P. under Sections 420, 467, 468, 471, 120- ::: Downloaded on - 22/07/2022 20:04:25 :::CIS 26 B of the Indian Penal Code and Section 39 of the H.P. Excise Act and (iv) FIR No. 733 of 2018 registered at Police Station Gautam Budh Nagar, (U.P.) under Sections 60 & 63 of U.P. Excise Act are pending trial against him. Possibility .
of petitioner's winning over prosecution witnesses, tampering with prosecution evidence and influencing ongoing investigation, also cannot be ruled out at this stage.
In view of discussion made in para 3, petitioner is not entitled for statutory bail and in view of the investigations carried out by the respondent in the FIR thus far (para-5), no case for grant of regular bail to him is made out at this stage. The petition is accordingly dismissed alongwith pending miscellaneous application(s), if any.
Jyotsna Rewal Dua Judge 22nd July, 2022 R.Atal ::: Downloaded on - 22/07/2022 20:04:25 :::CIS