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CR.MA/13319/2009 1/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13319 of 2009
=========================================================
RAVINDRASING
@ RAVI JAIRAMSING PAWAR
Versus
STATE
OF GUJARAT
=========================================================
Appearance :
MR
ND NANAVATI, SR. COUNSEL WITH MR MOUSAM R YAGNIK for Applicant.
MR
TUSHAR MEHTA, ADDL. ADVOCATE GENERAL for
Respondent.
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 06/04/2010
ORAL
ORDER
This
is an application preferred under section 439 of the Criminal
Procedure Code by the applicant who has been arrested in connection
with F.I.R. being C.R. No. I-252 of 2009 registered with Odhav Police
Station for offences punishable under sections 302, 328, 114, 272,
273, 109, 201 and 120-B of the Indian Penal Code read with sections
65(a)(b)(c), (d) and (e), 66(1)(b), 67 (1) (c), 68, 72, 75, 81 and 83
of the Bombay Prohibition Act.
It
is alleged in the FIR which was lodged on 07.07.2009 that husband of
the complainant had gone to his service and in the afternoon about
1.00 PM, he came back and stated that he was not feeling well, and
therefore he was taken to the hospital. It is further alleged in the
complaint that after some time, husband of the complainant said that
he cannot see anything, and therefore, he was taken to the hospital
where the Doctors, after examining him, declared him dead.
Mr.
N.D. Nanavati, learned senior counsel appearing with learned advocate
Mr. Mousham Yagnik for the applicant submitted that considering the
role attributed to the applicant, he is not the main culprit who is
involved in the commission of the alleged offence and therefore he
deserves to be enlarged on bail. He submitted that even as per the
prosecution case, the only allegation against the applicant is that
he has sold country made liquor and therefore the provisions of
sections 272 and 273 of Indian Penal Code is not prima facie made out
against the applicant as he is not responsible in adulterating the
liquor which is done at the stage of manufacturing. He submitted
that even the provisions of sections 302, 307 and 328 of IPC cannot
be attracted against the applicant as even the basic ingredients are
not satisfied in the case of the applicant. He submitted that at the
most, the applicant can be charged for offences punishable under the
Bombay Prohibition Act. He submitted that even on perusal of
statements of Naresh Dattatrey Gajjar dated 08.07.2009, 11.07.2009
and 26.07.2009, he does not indicate the involvement of the applicant
in the commission of offence. He submitted that the statement of
Naresh Dattatrey Gajjar dated 26.07.2009 mentions about the fact that
liquor was purchased from the applicant, and, save and except the
aforesaid statement, there is nothing on the record to indicate the
involvement of the applicant in the commission of offence. Likewise,
on perusal of the statement of Balvantbhai Vithalbhai Vaghela dated
09.07.2009, it is clear that the said witness has not mentioned the
name of the present applicant but thereafter on 15.07.2009, with a
view to implicating the present applicant in the aforesaid crime, a
further statement was recorded so as to implicate the applicant, but
even then, nothing turns out so as to indicate involvement of the
applicant in the commission of the offence. Learned advocate also
placed reliance on the statement of Manjulaben dated 08.07.2009 and
subsequent statement dated 08.08.2009 in support of the submission
that even prima facie case is not made out against the applicant,
and, therefore, the prayer as set out in the application deserves to
be granted.
On
the other hand, Mr. Tushar Mehta, learned Additional Advocate General
submitted that the applicant is facing charge for offences
punishable under sections 302, 328, 114, 272, 273, 109, 201 and 120-B
of the Indian Penal Code as well as under the provisions of the
Bombay Prohibition Act. He submitted that the applicant used to
purchase liquor from Vinod @ Dagri Chandubhai Chauhan along with two
other persons, viz. Nazir Ahmed Noormohammad and Nazir Hussien
Kadarbhai Sheikh and thereafter he used to sell the suprious liquor
to Mina Manjitsingh Rajput, Dhyansingh @ Dhatru, Mahendrabhai
Haribhai Macwana, Mohammad Tariff, Nassuriddin @ Nasro, Shantaben,
Vuiruttama, Puran Nepali and Sulakshana. Learned Additional
Advocate General has also placed on the analysis C.D.R.
of the mobile phone calls which was recovered from the possession of
the applicant and submitted that numerous mobile phone calls were
made with Nazir Hussien Kadarbhai Sheikh, Meenaben etc. Learned
Additional Advocate General has also placed reliance on the report of
the Forensic Science Laboratory in support of the submission that
the 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 him in tandem with other accused and seriousness
as well as gravity of offence in which the applicant is involved, 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 winners in the family. Learend Additional
Advocate General
also relied on the affidavit in reply filed on behalf of the State by
M.D. Chowdhary, Police Inpsector, Crime Branch in support of the
aforesaid contention as well as the fact that the applicant is
involved in 20 prohibition cases and some of them are pending before
the competent court. He, therefore, submitted that the 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 the application deserves to be
dismissed.
I
have heard learned counsel Mr. N.D. Nanavati for the applicant and
Mr. Tushar Mehta, learned Addl. Advocate General 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 302,
328, 114, 272, 273, 109, 201 and 120-B
of the Indian Penal Code read with sections 65(a)(b)(c), (d) and (e),
66(1)(b), 67 (1) (c), 68, 72, 75, 81 and 83 of the Bombay Prohibition
Act. The applicant used to purchase liquor from Vinod @ Dagri
Chandubhai Chauhan along with two other persons, viz. Nazir Ahmed
Noormohammad and Nazir Hussien Kadarbhai Sheikh and thereafter he
used to sell the spurious liquor to Mina Manjitsingh Rajput,
Dhyansingh @ Dhatru, Mahendrabhai Haribhai Macwana, Mohammad Tariff,
Nassuriddin @ Nasro, Shantaben, Vuiruttama, Puran Nepali and
Sulakshana. Even the analysis of the mobile phone calls submitted by
learned Additional
Advocate General
clearly indicates that the applicant used to talk on mobile phone
with other accused persons who are manufacturing and selling the
liquor. Thus, the entire link connecting the applicant with the
crime is prima facie established.
I
have considered the statements of witnesses referred to by learned
advocates of both the sides, more particularly, statements of Naresh
Dattatrey Gajjar and Balvantbhai Vithalbhai Vaghela.
Muddamal which was recovered was sent to Directorate of Forensic
Science Laboratory for the purpose of analysis, and the 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 and ethanol were found in the samples which were
sent to FSL. Methanol and ethanol are poisonous substances 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. 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 and supply
are an illegal activities in the State. In the present case, the
applicant has supplied liquor manufactured illegally and that too, by
using poisonous substance of methanol which everyone knows that if
anyone consumes it, he is likely to have a very adverse effect on the
body and can cause death or such bodily injury as is likely to cause
death. The nature of accusation against the accused is elaborated
in the FIR and so far as the severity of offence is concerned,
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. The applicant
is also involved in offences punishable under the Bombay Prohibition
Act. 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, it requires to be viewed seriously,
as in all, 149 lives have been lost 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 offences
punishable under sections 302, 328, 114, 272, 273, 109, 201 and 120-B
of the Indian Penal Code read with sections 65(a)(b)(c), (d) and (e),
66(1)(b), 67 (1) (c), 68, 72, 75, 81 and 83 of the Bombay Prohibition
Act which are invoked in the present case, I am of the
considered 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.
mathew [
H.B. ANTANI, J.]
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