Allahabad High Court
Vivek Rastogi vs State Of U.P. on 26 September, 2019
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- BAIL No. - 9273 of 2019 Applicant :- Vivek Rastogi Opposite Party :- State Of U.P. Counsel for Applicant :- Narendra Gupta Counsel for Opposite Party :- G.A. Hon'ble Vikas Kunvar Srivastav,J.
Heard learned counsel for the accused-applicant, learned Additional Government Advocate for the State and perused the material available on record.
The present bail application has been filed by the accused-applicant who is involved in Case Crime No. 246 of 2019, under Sections 60, 60A, 64, 72 of the Excise Act and Sections 420, 467, 468, 471, 474 IPC, Police Station Talgaon, District Sitapur.
The occasion of present bail application has arisen on rejection of the bail plea of the accused-applicant by Sessions Judge, Sitapur vide order dated 04.09.2019.
Submission of learned counsel for the accused-applicant is that accused-applicant is a licency of a country-made liquor shop. The police personnels with a demand of illegal gratification, were pressurizing the workers, in the absence of accused-applicant and entered into the shop. When they refused to fulfill the illegal gratification demand, the police party connected the accused-applicant with the case under Sections 60, 60A, 64, 72 of the Excise Act coupled with Sections 420, 467, 468, 471, 474 IPC, simply on the ground that the seal of the liquor bottles was broken open and some of the liquor was being transferred in the vacant bottles and again adding simple water therein, the bottles were closed with sealed. As such, the allegation is that water was being mixed in the country-made liquor.
Learned counsel further submits that owing to the non-fulfillment of illegal gratification demand, the police falsely implicated the accused-applicant with regard to mixing of the water in the country-made liquor. So far as the offence under Sections 60, 60A, 64, 72 of the Excise Act is concerned, nothing incriminating article or instrument was found there nor there has been any independent witness, however, the incident is reported in the day time. Learned counsel further submits that being a owner of a liquor shop, the accused-applicant has no any criminal history of like offences. He is a reputed person and innocent. With regard to the offence under Sections 420, 467, 468, 471, 474 IPC, he submits that nothing reveals from the First Information Report about manipulation or criminal adulteration with the country-made liquor, rather the story of mixing water in liquor is false. Learned counsel further argues that there is no any sample of adulterated liquor bottle was kept and seized and sent for scientific test. Further submission is that there is no possibility of the accused-applicant of fleeing away from the judicial process or tampering with the witnesses. In case the accused-applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned AGA, protesting the bail application on the basis of instructions, states that in the shop, the accused-applicant alongwith other workers was involved in mixing the water in country-made liquor by broken open the sealed bottles of the liquor and transferring the liquor in empty bottles, therefore offence under Sections 420, 467, 468, 471, 474 IPC is made out. However, learned AGA has conceded that there is no other like offence against the accused-applicant. All these facts are subject matter of the trial whether the offence is committed or not.
Considering the rival submissions of learned counsel for the parties, without expressing any opinion on the merits of the case and considering the nature of accusation, complicity of the accused-applicant, gravity of the offence and the severity of punishment in case of conviction and the period for which he is in jail, I find force in the argument of learned counsel for the accused-applicant. The accused-applicant is entitled to be released on bail in this case.
Let applicant-Vivek Rastogi be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 26.9.2019 kkv/