DISTRICT MANDSAUR (MADHYA PRADESH) v. (BY SHRI AMIT RAWAL - GOVT. ADVOCATE)

(BY SHRI AMIT RAWAL - GOVT. ADVOCATE) .....RESPONDENT This application coming on for admission this day, the court passed the following: ORDER Principal Registrar of this Court has submitted a detailed report along with explanation of erring employee / officer and the papers of inquiry in compliance of order dated 27/09/2023 passed by this Court. He is directed to take disciplinary action against the erring employee / officer in accordance with the Rules.

2. The order of Hon'ble the Chief Justice regarding nomination of Bench has been obtained and this Court has been nominated to hear this matter.

3. Heard learned counsel for both the parties. Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/16/2023 11:10:22 AM 2

4. This is the second application filed by the applicant under Section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail relating to Crime No.300/2021 registered at Police Station Pipliyamandi, District Mandsaur (M.P.) for the offence under Sections 304 and 329 of Indian Penal Code, 1860 and Section 49-A of the M.P. Excise Act.

5. As per the prosecution story, ten persons had died and so many persons were badly infected on account of consuming spurious liquor. During the merg inquiry, it has been gathered that they consumed poisonous liquor, which was sold to them by co-accused Rajendra Singh. It is alleged that present applicant along with other co-accused persons had prepared illegal and poisonous liquor. Accordingly, aforementioned offence was registered.

6. Learned counsel for the applicant contended that applicant is innocent and has been falsely implicated in this offence. There is no legal evidence available on record to connect the applicant with the aforementioned offence. His contention is that earlier anticipatory bail application of the applicant was dismissed vide order dated 30/01/2023 passed in M.Cr.C.No.3702/2023, but after rejecting the earlier application co-accused Rajendra Singh has been enlarged regular bail v i d e order dated 30/06/2023 passed M.Cr.C.No.26555/2023 by the co-ordinate Bench of this Court. Co-accused persons namely Sonam, Nepal Singh, Pandit Bharti Vishwas, Shyam Singh and Lokendra have been enlarged on regular bail by this Court vide orders dated 22/05/2023, 15/06/2023, 22/05/2023, 04/11/2022 and 04/11/2022 passed in M.Cr.C.Nos.21237/2023, 14773/2023, 12068/2023, 49800/2022. Hence, he prays that present applicant be also enlarged on anticipatory bail.

7. Per contra, learned counsel for the respondent / State opposes the bail Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/16/2023 11:10:22 AM 3 application and prays for its rejection by submitting that five more criminal antecedents of similar nature have been found against the present applicant. He is a habitual offender, hence, not deserve for grant of anticipatory bail.

8. Perused the impugned order of the trial Court as well as the case dairy.

9. Considering all the facts and circumstances of the case, arguments advanced by both the parties, nature of allegation and also taking note of the fact that although some of the co-accused persons have been enlarged on regular bail, but the case of the present applicant is not identical with the case of other co-accused persons since they have been enlarged on regular bail and present applicant has preferred anticipatory bail. He was remained abscond for so many years.

10. On this aspect, the provisions of Section 59-A of M.P. Excise Act, 1915 is worth referable here 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) no application for an anticipatory bail shall be entertained by any court in respect of a person accused of an offence punishable under Section 49-A or in respect of a person not being a person holding a licence under the Act or rules made thereunder who is accused of an offence covered by clause (a) or clause (b) of sub-section (1) of Section 34 with quantity of liquor found at the time or in the course of detection of such offence exceeding fifty bulk-litres."

11. The co-ordinate Bench of this Court, in Miscellaneous Criminal Case Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/16/2023 11:10:22 AM 4 No.43856/2021 (Bherulal s/o Radheshyam Dhakad v. Central Government through Police Station C.B.N. Mandsaur District Mandsaur MP), vide order dated 23.09.2021, while relying upon a decision rendered by the Supreme Court in the case of Murleedharan vs. State of Kerala reported in 2001 SCC (Criminal) 795 has taken a view that such an application under Section 438 of Cr.P.C. cannot be allowed. In this case, while dealing with a similar provision, Section 41-A of the Kerala Abkari Act, the Supreme Court has held, that:- “According to the Sessions Judge “no material could be collected by the investigating agency to connect the petitioner with the crime except the confessional statement of the co-accused”. The above provision is in pari materia with the Narcotic Drugs and Section 37 of Psychotropic Substances Act. This Court has held, time and again, that Act shall be released on bail in contravention of the conditions laid down in the said Section. (vide Union of India v. Ram Samujh [1999 (9) SCC 429]. If the position is thus in regard to an accused even after arrest, it is incomprehensible how the position would be less when he approaches the court for prearrest bail knowing that he would also be implicated as an accused. Custodial interrogation of such accused investigating agency to unearth all the links involved in the criminal conspiracies committed by the persons which ultimately led to the capital tragedy. indispensably necessary Such a wayward thinking emanating from a Sessions Judge deserves judicial condemnation. No court can afford investigating agency would fail to trace out more materials to prove the accusation against an accused. We are at a loss to understand what to presume Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/16/2023 11:10:22 AM 5 this early would have prompted the Sessions Judge to conclude, at investigating agency would not be able to collect any material to connect the appellant with the crime.” (Emphasis supplied) stage,

12. In the case of Natwar Singh Vs. The State of M. P. passed in M.Cr.C.No.199/2023 on 06/01/2023, the co-ordinate Bench of this Court has declined the anticipatory bail of the applicant therein considering the embargo under Section 59-A of the M.P. Excise Act, 1915.

13. In light of the aforesaid, this Court is of the opinion that it is not a fit case for grant of anticipatory bail to the present applicant. Hence, the second anticipatory bail application filed under Section 438 of Cr.P.C. is hereby dismissed.

14. Let a copy of this order be forwarded to the Principal Registrar of this Court for necessary compliance. Certified copy as per rules. Tej (ANIL VERMA) JUDGE Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/16/2023 11:10:22 AM