Gujarat High Court
Somiben vs State on 26 February, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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CR.MA/13809/2009 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13809 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SOMIBEN
MANILAL JAMAJI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
DHARMESH
D NANAVATY for
Applicant
MR TUSHAR MEHTA, ADDL.AG WITH MR JM PANCHAL, SPL.PUBLIC
PROSECUTOR for
Opponent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 26/02/2010
ORAL
JUDGMENT
This is an application preferred by the applicant under Section 439 of the Code of Criminal Procedure, 1973 [ Code for short], seeking regular bail in connection with I-CR No. 161 of 2009 registered with Kagdapith police station, Ahmedabad, for the offence punishable under Sections 120-B, 302, 307, 328, 272, 273, 201, 217, 221, 109 and 114 of Indian Penal Code, 1860 [ IPC for short] as well as under Sections 65[a][b][c][d][e][f], 66[1][B], 67[1][c], 68, 72, 75, 81 and 83 of Bombay Prohibition Act, 1949 [ Prohibition Act for short].
2. Learned advocate Mr. D.D. Nanavati, appearing for the applicant submitted that the applicant is an innocent person and he has been falsely implicated in the alleged commission of offence. On bare reading of the FIR as well as charge-sheet, the applicant is not at all involved in the offence alleged against him. The applicant came to be arrested only on the ground of suspicion. It is submitted that as per the FIR, when party took place in the house of the main accused, the applicant was not present and she has not given any poisonous liquid to any of the deceased. Even on perusal of the charge-sheet, it becomes clear that the applicant is not prima facie having any relation with other accused who prepared methyl alcohol. Even when the methyl alcohol was made, the applicant was not present and, therefore, she has been falsely implicated in the commission of offence.
3. One witness, namely, Lakhubhai Babubhai Parmar had given a statement that he had purchased country liquor from the applicant at Rs.80/- and when he took the liquor, there was some pain in his head and he was not feeling well. Therefore, he was hospitalized and after taking treatment, he was absolutely out of danger. Except the aforesaid statement, there is nothing on record against the present applicant. Thus, on perusal of the FIR and the role attributed to the applicant as well as statements of witnesses and affidavit filed by Police Inspector Shri M.D. Chaudhari, Crime Branch, the applicant is not having any direct role in the alleged commission of offence and, therefore, she deserves to be enlarged on bail.
4. Mr. Tushar Mehta, learned Additional Advocate General appearing with Mr. J.M. Panchal, Special Public Prosecutor, representing the opponent State, submitted that for the purpose of facilitating the work of the Court, detailed Chart is prepared. Considering the role of the present applicant who is working hand in glove with other accused and the fact that she has committed heinous crime punishable under Sections 120-B, 302,307, 328, 272, 273, 201, 217, 221, 109 and 114 of IPC as well as under Sections 65[a][b][c][d][e][f], 66[1][b], 67[1][C], 68, 72, 75, 81 and 83 of the Prohibition Act, no discretionary relief be granted to the applicant. Learned Additional Advocate General submitted that on perusal of statements of witnesses such as statements dated 10.7.2009 and 25.7.09, given by Lakhubhai Babubhai Parmar, statements dated 10.7.09 given by Balubhai Maganbhai Parmar, Soniben Lakhubhai Parmar, Bharatkumar Tulsibhai Parmar, statements dated 25.7.09 given by Nasirkhan Radatalikhan Pathan, Allauddin @ Lalbhai Dawoodbhai Ajmeri etc. as well as panchnama which is produced along with case papers and mobile phones which were used by the applicant and the talk that the applicant had with other accused, makes it clear that the present applicant is involved in serious offence punishable under Sections 120-B, 302,307, 328, 272, 273, 201, 217, 221, 109 and 114 of IPC as well as under Sections 65[a][b][c][d][e][f], 66[1][b], 67[1][c], 68, 72, 75, 81 and 83 of the Prohibition Act. Learned Additional Advocate General has also placed reliance on the report of the Forensic Science Laboratory in support of the submission that 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 her in tandem with other accused and seriousness as well as gravity of offence in which the applicant is involved in the offence, 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 winner in the family. 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 therefore, the application is meritless and deserves to be dismissed.
5. I have heard the submissions canvassed by the learned advocate Mr. D.D. Nanavaty for the applicant and Mr. Tushar Mehta, learned Addl. Advocate General as well as Mr. J.M. Panchal, learned Special Public Prosecutor, both appearing 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 FIR. The applicant is charged for the offence punishable under Sections Sections 120-B, 302,307, 328, 272, 273, 201, 217, 221, 109 and 114 of IPC as well as under Sections 65[a][b][c][d][e][f], 66[1][b], 67[1][c], 68, 72, 75, 81 and 83 of the Prohibition Act. FIR being CR No. 161 of 2009 has been filed by one Premjibhai Jethabhai Dabhi against Harishbhai and Pradipbhai Harishbhai on 7.7.09. It is alleged in the complaint that the complainant was having acquaintance with Harish and Pradip Harishbhai and liquor was provided to the complainant by the accused and even on the next day, liquor was provided to the complainant. Those who consumed the liquor were not feeling well and subsequently admitted to the hospital. Large number of persons after, consuming liquor also died and therefore, complaint was lodged against the accused.
6. I have considered the statements of witnesses referred to by learned advocates of both the sides, more particularly, statements dated 10.7.2009 and 25.7.09, given by Lakhubhai Babubhai Parmar, statements dated 10.7.09 given by Balubhai Maganbhai Parmar, Soniben Lakhubhai Parmar, Bharatkumar Tulsibhai Parmar, statements dated 25.7.09 given by Nasirkhan Radatalikhan Pathan, Allauddin @ Lalbhai Dawoodbhai Ajmeri etc. as well as panchnama of the place where raid was carried out in presence of panch witnesses. The treatment papers of V.S. Hospital are also perused by me. Muddamal which was recovered was sent to Directorate of Forensic Science for the purpose of analysis and 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 was found in the samples which were sent to FSL. Methanol is a poisonous substance 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.
7. 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 is an illegal activity in the State. In the present case, liquor is manufactured illegally and that too, by using poisonous substance of methanol which everyone knows that if anyone consumes it, it is likely to have a very adverse effect on the body. The nature of accusation against the accused is elaborated in the FIR and so far as the severity of offence if convicted is concerned, in substance, 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. 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, requires to be viewed seriously, as in all, 149 persons have lost their lives 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 Sections 120-B, 302,307, 328, 272, 273, 201, 217, 221, 109 and 114 of IPC as well as under Sections 65[a][b][c][d][e][f], 66[1][b], 67[1][c], 68, 72, 75, 81 and 83 of the Prohibition Act which are invoked in the present case. I have also considered criminal antecedents of the applicant. The applicant has been involved in 8 offences in the year 1988 to 2009 under the Bombay Prohibition Act and this aspect also cannot be overlooked by this Court while considering the bail application.
8. In view of the above facts and circumstances of the case, I am of the 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.
[H.B. ANTANI, J.] pirzada/-
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