Gujarat High Court
Jayesh vs State on 29 September, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.MA/12385/2011 15/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 12385 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
JAYESH
HIRALAL THAKKAR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
YN RAVANI for
Applicant(s) : 1,
MR HL JANI, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 29/09/2011
CAV
ORDER
Heard Mr.Yogesh Ravani, learned Advocate for the applicant and Mr. H.L. Jani, learned APP, for the State.
This application is filed by the applicant under Section 439 of the Criminal Procedure Code, 1973 for enlarging him on regular bail in connection with the offences being I-CR No. 252 of 2009 registered with Odhav Police Station, Ahmedabad, for the offences punishable under Sections 120B, 302, 307, 328, 272, 273, 201, 217, 221, 109, and 114 of the Indian Penal Code and under sections 65(A),(B),(C),(D),(E), 66(1)(b), 67(1)(C), 68, 72, 75, 81 and 83 of the Bombay Prohibition Act, 1949. It appears that initially the complaint was registered for the offences under Sections 307, 328 and 114 of I.P. Code and later on, by separate report dated 4.9.2009, remaining sections were incorporated.
The case of the prosecution is that the complainant has lodged her complaint on 8th July, 2009, before Odhav Police Station, inter-alia, alleging that on 7th July 2009, her husband returned at home at about 1.00 PM from service and complained that since yesterday night he is not feeling well. At 6.00 O'clock in the evening, her husband made complaint that he lost the vision, but, he has not taken any treatment on that day. It is alleged that on 8th July, 2009 in the morning 108 Ambulance Mobile was called and her husband was shifted to the hospital where he had expired during the treatment. It is alleged that on inquiry, the complainant learned that her husband had consumed alcohol, which was purchased from one Harishanker, who was servant of one Rajubhai. It is alleged that said rajubhai was dealing in the business of selling the liquor. It is also alleged that Rameshbhai, Prakashbhai, Shanabhai, Mahendrabhai, Ramrup and Mukesh, who have consumed liquor from the said person were admitted in the hospital and they have also expired due to consuming liquor. She has, therefore, lodged complaint with Odhav Police Station, Ahmedabad, vide CR No. 252 of 2009.
Heard Mr.Ravani, learned counsel for the applicant. He has submitted that against the present applicant, offence under Sections 302 and 307 of the Indian Penal Code cannot be attracted. From the charge sheet papers also, prima-facie, case is not made out against the present applicant. He has contended that the nephew of the applicant, who is charge-sheeted as accused No.3 in the present case, was handling the business of petrol pump, accounts and performing all functions on behalf of the applicant, as owner of the petrol pump. He has contended that the applicant has never been involved in doing illegal act with other main accused in the said offence and looking to the charge-sheet papers, there is nothing to show that there was meeting of mind with the other members for hatching the conspiracy. He has contended that it is alleged by the prosecution that the applicant and his nephew have committed theft of chemical, but, neither the supply of chemical nor the owner of vehicles have filed any complaint against the present applicant for theft of chemical. He has contended that the accused Nos.1, 8 & 9 have committed the offence of mixing and manufacturing the chemicals, but, the applicant has never met other co-accused and he is not involved in the illegal act of poisoning of liquor which is supplied to others. He has contended that looking to the papers, the applicant cannot be considered as conspirator with those others who have, with the help of each others, have committed the offence. He has contended that from the papers of the charge-sheet, the prosecution has made the allegation against the present applicant that as per the say of Rakeshgiri and Subhashgiri, from 1.7.2009 to 6.7.2009, the applicant, through his persons, has committed the theft of methyl alcohol from the tankers of Agraval Transport and B.M. Transport, who, after loading the methyl alcohol in the tanker from Kutch, were supplying the same to different companies. But, the said transport companies have never lodged any complaint against the present applicant in connection with the alleged theft and even the police has not interrogated the driver and cleaners of the said vehicles for the allegations made against the applicant and even they have not been shown as witnesses in the alleged incident. He has contended that applicant is residing at Vadodara and looking to the number of witnesses shown in the charge sheet, the trial against the applicant may not be concluded within a short time. Mr. Ravani has placed reliance on the decision in the case of K.R. PURUSHOTHAMAN v/s STATE OF KERALA reported in (2005) 12 SCC 631, and contended that, prima-facie, the knowledge and intention is required to be considered. He has contended that even from the statement of the witnesses and the charge-sheet papers, main ingredient of Section 120B of I.P. Code - criminal conspiracy, agreement is required to be considered, prima facie. He has read the statement of the witnesses and contended that it is true that this Court has rejected the Bail Applications of co-accused, who were paused before this Court as main conspirators and that they have committed the offence under Section 302 of I.P. Code. He has contended that looking to the papers of charge-sheet, prima facie, the allegation of "meeting of mind" is not established against the applicant. He has contended that, no doubt, this Court has rejected the bail applications, viz. Criminal Misc. application No.5140 of 2010 and Criminal Misc. Application No.7859 of 2010, filed by other accused, but, looking to the allegations made against the applicant the present case is different than that of the applicants of the above Criminal Miscellaneous Applications. Mr. Ravani, therefore, prays that the applicant is a business man, wrongly involved with some ulterior motive and, therefore, he may be enlarged on bail.
Mr.Jani, learned A.P.P. has strongly opposed this application. He submitted that the provision of Sections 299(4) and 300(4) of the Indian Penal Code is straightway applicable in the present case. He has also contended that looking to the papers, prima-facie, case is made out against the present applicant. He has contended that against the present applicant, two FIR have been registered, being CR No. I - 161 of 2009 and CR No. I - 252 of 2009, both registered with Kagdapith Police Station, and in the offence being CR No. I - 161 of 2009, the trial has already began and more than 11 witnesses have been examined and the next date for hearing of the said case has been fixed on 21.9.2011. He has contended that in the offence being CR No. I - 252 of 2009, the trial is going to start immediately and the matter is kept for framing of charge on 29th September, 2011. He has read the provision of Section 299 and contended that, prima-facie, the knowledge about the illegal act is established against the present applicant. He has contended that looking to the papers, it appears that the present applicant is supplier of ethyl and methyl, and meeting of mind is also, prima facie, established. He has contended that the applicant and his nephew, both are the main accused and they are keeping methyl which is poisonous and very harmful for the public at large. He has also contended that the applicant has tampered with the evidence when he was released on temporary bail, and for that purpose, the complaint against him is lodged vide CR No. I - 92 of 2011 on 10.8.2011 before the Anand Police Station, for the offence under Section 379 & 114 of I.P. Code. It is further contended by him that this Court has refused bail to other two co-accused. He has relied upon judgment cited at AIR 1977 SC Page 45. In paragraph 20 of the said judgment, it is observed as under :
"20.
Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that cl.(4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid."
Relying upon the said judgment, he has vehemently argued that provision of Section 302 is prima-facie attracted and looking to the deaths of innocent persons, present application for regular bail may be rejected.
Heard learned advocates for the parties. It is contended by learned Advocate Mr. Ravani that no doubt this Court vide order dated 4.8.2010, passed in Criminal Misc. Application No. 7859 of 2010, has rejected the bail application filed by co-accused, but, the facts of present case is different. He has also read the observation made by this Court in Para - 5 of Criminal Misc. Application No. 7859 of 2010, which reads as under:
"The witness Manjuben Galjibhai Vaghela stated in her statement that the applicant sold the liquor in their area and when the Lathakand was occurred, at that time also, the applicant was selling liquor and, therefore, some persons also came there for consumption of liquor. She further stated that she knew Ajay Fulbahadur Nepali, who came there for consumption of liquor from time to time. The witness Sarojben Dasharathbhai Vaghela stated in her statement that the applicant sold the liquor in their area and when the Lathakand had occurred, at that time, also the application was selling liquor and, therefore, some persons also came there for consumption of liquor. She further stated that she knew Ajay Fulbahadur Nepali and Albert Meckwan, who came there for consumption of liquor from time to time. The witness Mohamad Harun Mohamad Hussain Rajput stated in his statement that he and his partners Harun Rajput, Natu Thokor and Ashif Pathan told Ravindra and his partners that methyl alchohol is poisonous and will create problem and cause death, if it is consumed and, therefore, they have not purchased the same. They have stated that irrespective of fate of the drinkers but the liquor consisting methyl will be cheaper and more profit can be earned from the same. Therefore, he, Asif and Harun, after stating that such type of liquor would not be purchased, they went away. The witness Natvarbhai Ambalal Thakor stated in his statement that he was doing the business of selling liquor. He went to the business place of Ravindra. At that time, Ravindra, his servants Bhagwan and Amit and his partners Najir and Nasir were present there as well as Meenaben Rajput, Mahendra Makwana, Dyansing @ Dhannu, Mohammad Tariq and his partner Nasaro, Nepali, Viruttamaben Madrasi, Sulaxnaben Marathi, Shantaben Thakore, Aspak Ansari, Harunbhai and Ashif Pathan were present there. Ravindra and his partners informed all of them that he and Dadu Chhara both had a talk with Vinod Dagari of Village : Vathwadi, District :
Mehsana regarding making of methyl alcohol and it was reasonable for us to sell. The witness Mohammad Aspak Mohammad Niyaz Ansari stated in his statement that Ravindra and his partners informed all of them that he and Dadu Chhara both talked with Vinod Dagari of Village : Vathwadi, District : Mehsana regarding making of methyl alcohol and it was reasonable for us to sell. Lastly, the witness Ashifkhan Chhotekhan Pathan stated in his statement that Ravindra and his partners informed all of them that he and Dadu Chhara both had a talk with Vinod Dagari of Village : Vathwadi, District : Mehsana regarding making of methyl alcohol and it was reasonable for us to sell. I have also perused the statements of the witnesses and the ingredients for provisions of Section 120(B) of the Indian Penal Code of criminal conspiracy. Looking to the ingredients of criminal conspiracy, there is main ingredients of crime and meeting of mind. Even I have perused Section 300(3) of the Indian Penal Code, it is also prima facie established that there was an offence of knowledge and when the knowledge is established beyond reasonable doubt then the ingredients of Section 300(3) can be attracted and it is covered within the meaning of murder."
Mr. Ravani has also read the order dated 7.7.2010 passed by this Court in Criminal Misc. Application No.5140 of 2010 and contended that the said application for bail was filed by another co-accused has also been rejected by this Court. The observation made by this Court in Para - 6 of the said order reads as under :
"Looking to the provision of Section 120B of the Indian Penal Code, main ingredient of conspiracy is must between all the co-conspirators and from the statements, prima-facie it is established on record that there was an agreement between all the conspirators. No doubt learned counsel for the applicant has already argued that there is no direct evidence in connection with the conspiracy, but circumstantial evidence is required to be considered and conspiracy can be inferred. In the present case, from the statements, which are on record, it is clearly established that there was an agreement between the present applicant and co-conspirators. Looking to the ingredient of Section 120B of the Indian Penal Code, main ingredient is agreement and when agreement is already established on record, then question of considering provision of Section 120B of the Indian Penal Code cannot arise at this stage. Section 300(4) reads as under:
"Section 300(4). If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
It is found from the police papers that applicant-accused has knowledge about the co-conspirators and and co-accused and in such type of offence, issue of intention cannot come in any way, but only act and knowledge can be seen.
Knowledge implies awareness. That awareness is necessarily of a future contingency, the happening of which may depend upon variety of circumstances all of which cannot possibly be present in the mind of an offender. The offender cannot be expected to foresee so far ahead, nor does the section requires it. It requires, however such knowledge as men in his position might be expected to possess. Knowledge is, of course, a mental act, merely a mental leap into the dark. Knowledge is, of course, a mental act and condition of the mind as such incapable of direct proof.
From the papers, it appears that from the case of the prosecution, knowledge of applicant is extremely probable which law requires. It also appears from the sample sent to Forensic Science Laboratory (FSL) for analysis that Methanol and Ethanol were found in the sample. Methanol and Ethanol are poisonous substance and if be added in the liquor, then person consuming that liquor receive adverse effect on the body and health also.
In the present case, from the perusal of charge-sheet, it is required to be considered the main ingredient of Section 299 "intent and knowledge", postulate the existence of positive mental attitude, and mental condition is the subject "mens-rea"
necessary for the offence. The guilty intention in the first two conditions contemplate the intended death of the person or intentionally causing injury likely to cause his death. The knowledge is a third condition of the knowledge like hurt or the death of the person. The "knowledge" is awareness on the part of the person concerned indicates is "state of mind".
"Reason to believe" is another facet of the state of mind. "Reason to believe" is not something as "suspicion", "doubt" and mere seeing also cannot be equated to believe "reason to believe" which is a higher level of state of mind. Likewise "knowledge"
will be small on higher place than "reason to believe". Methyl Alcohol is virtually a poison.
So far as entertaining the bail application, filed by the applicant is concerned, prima-facie, his role to connect him with the alleged guilt for the offence under Section 302 read with Section 120-B of I.P. Code for supply or manufacture of poisonous liquor is required to be considered. Looking to the ingredients of Section 299, there are three species of mens-rea in culpable homicide, viz. (i) an intention to cause death, (ii) an intention to cause a grievous injury, and (iii) knowledge that death is likely to happen. In the present case, it appears that the applicant is a business man, but, the said business was being looked after by his nephew and, therefore, naturally he would not have any knowledge about the dealing and transaction in his business.
I have also perused and verified the expert opinion of Medical officer through whom post-mortem has been carried out. It is true that in the report of Forensic Science Laboratory poisonous chemical is found, but, looking to the involvement of the applicant in the present case, the question of ingredient "meeting of mind"
and "agreement for criminal conspiracy" is required to be considered. Mr. Ravani has contended that the applicant is a business man, having petrol pump and also supplying ethyl and methyl chemical to different companies/firm. However, the whole transaction in said business of the applicant was looked after by his nephew, and now he has already disposed of the said petrol pump. I have also verified the said contentions from the papers produced before me. From the papers, it clearly appears that the nephew of the applicant was looking after the business of the applicant and, therefore, prima facie, the nephew of the applicant is involved in the matter. Looking to the facts of the case and also perusing the papers produced before me, there is substance in the contention of Mr. Ravani that looking to the role of the applicant, prima facie, ingredients of Sections 299 and 300(4) I.P. Code would not be attracted against the applicant.
Mr. Ravani has also contended that the present applicant has been released on temporary bail on the ground of ill-health of his wife and thereafter on his own medical ground and during that time no untoward incident has occurred. He has contended that it is true that for tampering with the evidence complaint has been filed against the applicant, but, the said complaint was filed with some ulterior motive.
Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the case and now the charge-sheet is filed, without entering into the merits of the matter, I am inclined to grant bail to the applicant.
Considering the above, this Application is allowed. The applicant is ordered to be released on bail in connection with CR No. I-252 of 2009 registered with Odhav Police Station, Ahmedabad, for the offence alleged against him in this application on his executing a Bond of Rs.25,000/- (Rupees twenty five thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall -
(a) not take undue advantage of his liberty or abuse his liberty;
(b) not to try to tamper or pressurize the prosecution witnesses or complainant in any manner;
c) maintain law and order and should cooperate the Investigating Officers;
d) not act in a manner injurious to the interest of the prosecution;
e) not leave the State of Gujarat till the disposal of Sessions case without the prior permission of the concerned Sessions Judge.
f) mark his presence before the D.C.B., Crime Branch, Ahmedabad twice in a month i.e. on 1st & 15th of every English calender month, between 11.00 AM to 2.00 PM, till the trial against the applicant is completed.
g) furnish address of his residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
h) surrender his passport, if any, to the lower Court within a week.
If breach of any of the above conditions is committed, the concerned Sessions Judge will be free to issue warrant or take appropriate action in the matter.
Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for.
Rule is made absolute. Direct service is permitted.
(Z.K.SAIYED,J.) sas Top