Banti Singh v. State of C.G.

Sanjay K. Agrawal, J.

1. Invoking jurisdiction of this Court under Section 439 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') for grant of regular bail, the applicant has filed this application, who has been arrested in connection with Crime No. 682 of 2014 registered at Police Station Chhaoni, District, Durg (C.G.), for the offence punishable under Section 34(2) of the Chhattisgarh Excise Act, 1915 (in short 'the Act'). Case of the prosecution, in brief, is that, applicant was found in possession of 9 bulk liter of country made liquor without valid authority of law, which is offence punishable under Section 34(1)(a) of the Act.

2. Shri Rajesh Jain, learned counsel appearing for the applicant would submit that the applicant has been falsely implicated in the case as such, there are reasonable grounds for believing that he is not guilty of such offence and he is ready and willing to submit undertaking that he will not commit any such offence if privilege of regular bail is granted by this Court. He would further submit that applicant has no criminal antecedent as no excise offence has previously been committed by him, and therefore, he be released on regular bail.

3. On the other hand, Smt. Anusuiya Rajput, learned counsel appearing for the State/non-applicant would oppose the prayer for grant of bail and submit that the applicant was found in possession of more than 5 bulk liters country made liquor without any authority of law and therefore unless the condition mentioned in Section 59-A(ii) of the Act are satisfied, the applicant is not entitled to be released on bail.

4. I have heard learned counsel appearing for the parties and perused the case diary with utmost circumspection.

5. Before considering the submission of the applicant, it is useful to refer Section 34(1) and (2) of the Act, which reads as follows:-- "34. Penalty for unlawful manufacture, transport, possession, sale etc.--(1) Whoever, in contravention of any provisions of this Act, or of any rule, notification or order make or issued thereunder, or of any conditions of a licence, permit or pass granted under this Act,-- (a) manufactures, transports, imports, exports, collects or possesses any intoxicants; or (b) save in the cases provided for in Section 38, sells any intoxicant: or (c) cultivates Bhang; or (d) taps any toddy, producing tree/or draws toddy therefrom, or (e) constructs or works any distillery, brewery or vintnery; or (f) uses, keeps or has in his possession any materials, still utensil, implement or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy; or (g) removes any intoxicant from any distillery, brewery, vintnery or warehouse licensed, established or continued, under this Act; (h) bottles any liquor; shall subject to the provisions of sub-section (2), be punishable for every such offence with imprisonment for a terms [not less than [six months]] which may extend to [two years] and fine which shall not be less than [Ten thousand rupees] but which may extend to [Fifty thousand rupees]: Provided that when any person is convicted under this section of any offence for a second or subsequent time, he shall be punishable for every such offence with imprisonment for a terms [not less than [one year]] but which may extend to [five years] and whit fine which shall not be less than [Twenty thousand rupees] but which may extend to [two lac rupees]. (2) Notwithstanding anything contained in sub-section (1), if a person is convicted for an offence covered by clause (a) or clause (b) of Sub-section (1) and the quantity of the intoxicant being liquor found at the time or in the course of detection of the offence exceeds [five bulk liter], he shall be punishable with imprisonment for a terms which shall not be less than one year but which may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees: Provided that when any person is convicted under this Section for an offence for second or subsequent time, he shall be punishable for every such offence with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than fifty thousand rupees but may extend to two lac rupees."

6. A bare perusal of sub-sections (1) and (2) of Section 34 of the Act would show that the Chhattisgarh Excise Act, 1915 has provided two parameters for the first offence and also for the subsequent and second offence. When an offence is committed by a previous convict or accused is a habitual offender, the Court may consider his case separately and looking to the facts and circumstances of the case the court may not release him on bail.

7. At this stage, it would be appropriate to notice Section 59-A(ii) and (iii) of the Act, which reads as under:-- "59-A. Certain offence under the Act to be non-bailable.-- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (No. 2 of 1974) or Section 59 of the Act,

(i) * * * *

(ii) a person, accused of an offence punishable under Section 49-A or a person not being a person holding a licence under the Act or rules made thereunder who is accused or an offence covered by clause (a) or clause (b) of Sub-section (1) of Section 34 of with quantity of liquor found at the time or in the course of detection of such offence exceeding [five bulk liter], shall not be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and in case such an application is opposed by the Public Prosecutor, unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail: * * * *

(iii) the limitations for grant of bail specified in clause (ii) are in addition to limitations prescribed under the Code of Criminal Procedure, 1973 (No. 2 of 1974) or any other law for the time being in force regarding grant of bail."

8. From the close and careful perusal of the above- stated provision, it would appear that non obstante clause in Section 59-A(ii) of the Act and sub-section (iii) thereof that the power to grant bail to a person accused of having committed offence under the Act is not only subject to the limitations imposed under Section439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (ii) of Section 59-A of the Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative.

9. Their Lordships of the Supreme Court in Collector Of Customs, New Delhi v. Ahmadalieva Nodira. (2004) 3 SCC 549, while emphasizing the need for satisfying the twin requirements as provided in clause (b) of sub-section (1) of Section 37 of the N.D.P.S. Act held as under:-- "6. As observed by this Court in Union of India v. Thamisharasi [1995] 4 SCC 190] clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence."

10. In Union Of India v. Rattan Mallik Alias Habul (2009) 2 SCC 624, their Lordships of Supreme Court, again while considering the meaning of "not guilty" as employed in Section 37(1)(b)(ii) of the N.D.P.S. Act held as under: - "14. We may, however, hasten to add that while considering an application for bail with reference to section 37 of the ndps act, the court is not called upon to record a finding of "not guilty". At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail."

11. It is pertinent to note that section 37(1)(b)(i) & (ii) of the n.d.p.s. act is a pari-materia provision to Section 59-A(ii) of the Act, 1915. Thus, guided by the principles of law laid down by their Lordships of Supreme Court in Collector of Customs, New Delhi (2004) 3 SCC 549 and Union of India (2009) 2 SCC 624 (supra), it would appear that while hearing the application for regular bail, the court has to : " give a reasonable opportunity to oppose the application to the Public Prosecutor; see whether reasonable ground for believing that the accused is not guilty of such offence; see that applicant is not likely to commit any offence while on bail." So far as first condition is concerned, the court while hearing the bail application has to provide an opportunity to the public prosecutor to oppose the application by giving just, fair and reasonable opportunity of hearing. So far as the second condition is concerned, the Court can consider the totality of the material collected in the case diary for recording his satisfaction that accused is not prima facie guilty of such offence by considering the nature of offence, involvement of the accused in the commission of crime, recovery of any contraband material from him and its quantity; and that he is not a habitual offender or a previous convict; and his release on bail will not prejudice the case of the prosecution; and that charge-sheet has been filed. It has also to be kept in mind that the offence under Section 34(2) read with Section 49-A is triable by Magistrate First Class and the maximum punishment shall not be less than one year but may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees under Section 34. Under Section 49-A, sub-section (1) under Clause (iii) when death of human being is caused, the imprisonment which shall not be less than two years but may extend' to ten years and when any person is a previous convict under this section for a second or subsequent offence, he shall be punished to imprisonment for life or imprisonment which shall not be less than five years but extend to ten years. So far as the third condition that he is not likely to commit such offence while on bail, in cases where it is the first offence of the applicant while granting bail the Court may provide further safeguard and take a specific undertaking that he/she will not commit any offence while on bail and if there is any breach of the undertaking, the Court will consider the case for cancellation of his/her bail. This undertaking will also provide a safeguard not to commit any offence while on bail. The Courts are also empowered to impose other conditions as required under Sections 437 and 439 of the Cr.P.C.

12. Bearing in mind the principles of law laid down in aforesaid cases, if the facts of present case are examined, it is apparent that there is no criminal antecedent of the present applicant and only 9 bulk liters of country made liquor has been seized from him which is more than prescribed limit of 5 bulk liters, but looking to the fact that it is first offence of the applicant and he is in custody from 02.12.2014 and case is triable by the Judicial Magistrate First Class and trial is likely to take some more time and further taking into account the nature and gravity of offence and plea raised by the applicant that he has falsely been implicated in case, I am of the opinion that present is the fit case. in which, the applicant should be enlarged on regular bail.

13. Accordingly, the bail application filed under Section 439 of the Cr.P.C. is allowed. It is directed that on furnishing a personal bond in the sum of Rs. 25,000/- with one surety in the like sum to the satisfaction of the concerned Court for his appearance as and when directed, the applicant shall be released on bail, subject to following conditions: " That, the applicant shall furnish a specific undertaking that while on bail, he will not commit any excise offence, otherwise bail granted to him shall be liable to be cancelled and shall co-operate the prosecution during trial. That, the accused/applicant shall make himself available for interrogation before the concerned Investigating Officer as and when required and the accused/applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer. That, the accused/applicant shall not act. in any manner, which will be prejudicial to fair and expeditious trial." Certified copy as per rules. HEAD NOTE Parameters for considering the application for grant of bail under Section 439 of Cr.P.C. is laid down in view of Section 59-A(ii) of the Chhattisgarh Excise Act, 1915.

439 , 1915 59-(ii) ________________