Gujarat High Court
Pankaj Brijmohan Khosla vs State Of Gujarat on 16 October, 2023
NEUTRAL CITATION
R/CR.MA/15476/2023 ORDER DATED: 16/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - BEFORE
CHARGESHEET) NO. 15476 of 2023
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PANKAJ BRIJMOHAN KHOSLA
Versus
STATE OF GUJARAT
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Appearance:
MR VIPLAV SHARMA, ADVOCATE FOR
MR NANDISH Y CHUDGAR(2011) for the Applicant(s) No. 1
MR L B DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 16/10/2023
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R.NO.I-11185004231047 of 2023 registered with Jamkhambhaliya Police Station, Devbhoomi-Dwarka for offence under Sections 465, 467, 468, 471, 120(B) and 114 of the Indian Penal Code, 1860 and Section 65(e), 81, 83, 67A, 24(A) and 59(A) of the Prohibition Act.
2. Learned Advocate appearing on behalf of the applicant submits that the applicant herein applicant herein is the business of manufacture and trade of the Ayurvedic Medicines possesses the requisite license for the same issued by Government of Gujarat. A applicant runs a proprietary firm in whose favour the license is issued by the State Government. Since the applicant is not domicile in Gujarat, the provision of Page 1 of 7 Downloaded on : Mon Oct 16 20:50:46 IST 2023 NEUTRAL CITATION R/CR.MA/15476/2023 ORDER DATED: 16/10/2023 undefined the Prohibition Act will not be applicable to the present applicant.
2.1 Learned advocate for the applicant has submitted that the Investigating Agency has seized several bottles of Tandra Asav and Drakshasav from the shop at Khambhaliya. The product Drakshasav is not manufactured by the present applicant nor the same has been supplied by the present applicant to the dealer from whom the same has been seized. The applicant has been producing the ayurvedic medicines as per the prescribed formula and thus, the medicine Tandra Asav should contain maximum 11% of ethyl alcohol. The applicant adhering to the said standards and the contents of alcohol in Tandra Asav is not more than 11%. There is no material to connect the present applicant with the bottles of Drakshasav, which have been seized by the Investigating Agency.
2.2. Learned advocate for the applicant has submitted that the act of arresting the present applicant on the part of the Investigating Agency is unlawful and unconstitutional since he was illegally detained by the Investigating Agency at Sangrur (Punjab) and was brought to Gujarat, and thereafter, he was shown to have been arrested. The Investigating Agency had not obtained any transit remand for bringing him from Pujab to Gujarat from the local Magistrate.
2.3 Learned advocate for the applicant has submitted that the records of the firm of the applicant would indicate that the ethyl alcohol procured by him was lying as it is at his place, and therefore, there was no question of him having misused the said Page 2 of 7 Downloaded on : Mon Oct 16 20:50:46 IST 2023 NEUTRAL CITATION R/CR.MA/15476/2023 ORDER DATED: 16/10/2023 undefined ethyl alcohol.
2.4 Learned advocate for the applicant has submitted that the investigation of the offence is virtually over and the presence of the present applicant is no more require for the purpose of investigation. The applicant is suffering from various ailments and is on meditation for the same. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions.
3. Learned advocate for the applicant has relied upon following the judgments in support of his submissions:-
"1. Orders dated 03.08.2022 and 12.09.2022 passed in Criminal Misc. Application No.14368 of 2022 passed in case of Munavver Ismail Memon Vs. State of Gujarat.
2. Arnab Manoranjan Goswami Vs. State of Maharashtra reported in (2021) 2 SCC 427.
3. Muskesh Kishanpuria Vs. State of West Bengal reported in (2010) 15 SCC 154.
4. Deepak Bajaj Vs. State of Maharashtra reported in (2008) 16 SCC 14.
5. Sukhwant Singh VS. State of Punjab reported in (2009) 7 SCC 559.
6. Procter & Gamble India Limited Vs. Municipal Corporation of Greater Bombay reported in 1993 SCC Online Bom 338."
4. Learned APP has opposed the present application, inter alia, contending that the material seized by the Investigating Page 3 of 7 Downloaded on : Mon Oct 16 20:50:46 IST 2023 NEUTRAL CITATION R/CR.MA/15476/2023 ORDER DATED: 16/10/2023 undefined Agency was subjected to spot examination at the hands of F.S.L and the FSL report indicates that all the three products, which were seized contained alcohol, which was not self-generated.
4.1 Learned APP has submitted that the applicant did not possess any license issued by Government of Gujarat to trade in the products in question in State of Gujarat.
4.2 Learned APP has submitted that the material collected during the course of investigation indicates that the present applicant had got the stickers printed in the name and style of M/s.Shiv Sales for Drakshasav, which were affixed on the bottles in question and the same were supplied to the dealer, who is also co-accused.
4.3 Learned APP has submitted that the investigation is still in progress. Thus, there is a strong prima facie case for the applicant having committed the offence in question. He, therefore, submitted to dismiss the present application.
5. Heard learned advocates for the parties and perused the material available on record. From the record, it appears that the applicant is in the business of manufacturing and trading of the ayurvedic medicines. The ayurvedic medicine viz. Nindra Sav / Tandra Asav was produced at the unit belonging to the applicant. Co-accused -Chirag Liladharbhai Thobhani had approached the present applicant, as he was interested in selling the said products at Khambhaliya. The applicant herein had agreed to send the said product in bulk to the said Chiragbhai Thobhani for being sold in the market of Khambhaliya. After Page 4 of 7 Downloaded on : Mon Oct 16 20:50:46 IST 2023 NEUTRAL CITATION R/CR.MA/15476/2023 ORDER DATED: 16/10/2023 undefined some time, the said co-accused - Chirag Thobhani realized that the said Nindra Asav / Tandra Asav did not have much demand in his area. However, syrup named Drakshasav manufactured by the M/s. Shiv Trading Company was in demand in Khambhaliya. He, therefore, requested the present applicant to supply the bottles of Nindra Asav / Tandra Asav by affixing the sticker of Drakshasav showing the name of manufacturer as M/s. Shiv Trading Company. The present applicant had agreed to the same and accordingly, had got the stickers printed at Sangrur (Punjab). The Investigating Agency has recorded the statement of one witness, who at the instance of the present applicant, had printed the said stickers and the said stickers were affixed by the present applicant on the bottles containing Nindra Asav / Tandra Asav and the same was marketed as Drakshasav. Thus, what was sold by the present applicant to the co-accused Chirag was Nindra Asav / Tandra Asav under the guise of Drakshasav.
6. As per the case of applicant himself, Nindra Asav / Tandra , as per the formula prescribed contained ethyl alcohol maximum to the extent of 11%, whereas Drakshasav would not contain any ethyl alcohol. It would contain only self-generated alcohol. What has been supplied by the present applicant to the co-accused for being marketed in Khambhaliya was Nindra Asav / Tandra Asav under the guise of Drakshasav.
7. At the cost of repetition, it is required to be noted that as per the case of the applicant himself Drakshasav had to contain only self-generated alcohol, whereas Nindra Asav / Tandra Asav had contained ethyl alcohol to the extent of 11%. The Page 5 of 7 Downloaded on : Mon Oct 16 20:50:46 IST 2023 NEUTRAL CITATION R/CR.MA/15476/2023 ORDER DATED: 16/10/2023 undefined Investigating Agency had seized 5544 bottles of 300 ml of Tandra Asav, 1930 bottles of 600 ml of Tandra Asav and bottles of Drakshasav. The samples collected were subjected to spot inspection by the FSL. The report of the FLS indicates that all the ayurvedic medicines subjected to test contained alcohol and since the presence of yeast was not found, the said alcohol was not self-generated. This aspect indicates that the the product which was supplied by the present applicant to the co-accused Chirag under the guise of was not Drakshasav, but the same was Tandra Asav. The detailed FSL report as regards the proportion of content of alcohol in the said preparation is still awaited.
8. It is contended on behalf of the applicant that he was unlawfully and unconstitutionally arrested by the Gujarat Police. Upon perusal of the entire investigation papers, it appears that the Gujarat Police had gone to Sangrur (Punjab) at the place of the present applicant and since he was required to brought to Gujarat for the purpose of investigation, they have intimated about the same to the local police at Punjab and the present applicant was brought to Gujarat. After having been brought to Gujarat, after some investigation since prima facie material about the involvement in the offence in question was found by the police, he was arrested and was thereafter produced before the concerned Magistrate within a stipulated period. The present applicant does not appear to have lodged any complaint with regard to his alleged illegal arrest before the concerned Magistrate when he was first produced before him.
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9. The record also indicates that another FIR has also been registered against the present applicant at Sangrur (Punjab) for misuse of the ethyl alcohol procured by the present applicant for manufacturing ayurvedi medicines. Thus, the applicant has sought to supply Nindra Asav / Tandra Asav which contained ethyl alcohol under the guise it being Drakshasav for sale to the co-accused. The record also indicates that the present applicant did not adhere to the formula prescribed for preparation of several ayurvedic medicines and the said medicines were prepared de-hors the prescribed formula.
10. The investigation is still under progress. Considering the aforesaid aspects, the present application being devoid of any merit, is hereby dismissed. Rule is discharged.
(M. R. MENGDEY,J) GIRISH Page 7 of 7 Downloaded on : Mon Oct 16 20:50:46 IST 2023