The present 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 302, 307, 328, 272, 273, 201, 109, 114 and 120-B of the Indian Penal Code and under sections 65(A),(B),(C),(D),(E), 66(1)(b), 67(1)(a), 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.
It appears from the record that earlier the very applicant has filed Criminal Misc. Application No. 5088 of 2010 for enlarging him on bail. As this Court was not inclined to grant bail to the applicant, the said application came to be disposed of as withdrawn by the applicant, vide order dated 3.8.2010. Therefore, this is a successive bail application, filed by the applicant.
Learned Advocate Mr. Agrawal for the applicant has contended that the case of the prosecution is not covered within the meaning of Section 299 of I.P. Code. He has contended that, no doubt, this is a successive bail application, but, due to change of circumstances, the applicant has filed this application for bail. He has contended that the co-accused have been released on bail and, therefore, on the ground of parity the applicant may be released on bail. He has contended that the bail granted by this Court to two other co-accused are the main accused, who have supplied ethyl and methyl and one of the co-accused has been released on bail by the co-ordinate Bench of this Court and, therefore, on the ground of parity, the applicant may be released on bail. He has read the statements of (i) Vijaysing Vaghela, (ii) Feminben Samshersing, (iii) Babu Magan and others, and contended that looking to the statement of witnesses it clearly appears that the applicant is a small seller of liquor and he is not involved in the conspiracy with others and, therefore, prima-facie, main ingredients of Section 120-B of I.P. Code - agreement and meeting of mind with co-conspirators, is not established against the present applicant. He has contended that if the provision of Section 300(4) I.P. Code is considered, yet, on the ground of parity, the applicant may be released on bail.
Learned Special Prosecutor Mr. Devang Vyas has strongly opposed this application. He has contended that this is a successive bail application, filed by the present applicant. He has submitted that the provision of Sections 299(4) and 300(4) of the Indian Penal Code are straightway applicable in the facts of 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 from the statement of witnesses, it is clearly established that the applicant has knowledge about the result of the act done by him with the help of each others. It is further contended by him that this Court has refused bail application of other two co-accused. He has also read the statement of witnesses and contended that from the statement of witnesses the applicant was very much present in the meeting with the other co-conspirators. He has contended that the other co-accused, who are released on bail, were not present in the meeting and, therefore, the ground of parity is not applicable in the present case. He has contended that it was the intention and within the knowledge of the present applicant and other co-conspirators that after consuming the liquor (Lattha) a person consuming such liquor may fell ill seriously which may result into death. He has relied upon judgment cited at AIR 1977 Page 45.
Relying upon the said judgment, he has vehemently argued that the ingredients of Section 302 I.P. Code, prima-facie, are established against the applicant and looking to the large number of deaths of innocent persons, present application for regular bail may be rejected.
Heard both the parties and also perused the Police papers, statement of witnesses and the FSL Report produced on the record. Looking to the provision of Section 120B of the Indian Penal Code, main ingredient of conspiracy is must between all the co-conspirators and in the present case, from the statements of witnesses and police papers, prima-facie, it is established on the record that there was an agreement between all the conspirators. No doubt, learned counsel for the applicant has argued that there is no direct evidence to connect the present applicant 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 the 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 the record, then the question of considering provision of Section 120B of the Indian Penal Code would not arise at this stage. It has also transpired from the evidence on the record that the applicant and other co-conspirators were having knowledge that by consuming the liquor, the person may even die. Section 299 of I.P. Code reads as under :
"Section 299 - Culpable homicide - whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely by such act to cause death, commits the offence of culpable homicide.
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 co-accused and in such type of offence, issue of intention cannot come in any way, but, only act and knowledge can be seen.
I have also gone through the orders of releasing the co-accused on bail, passed by this Court as well as co-ordinate Bench of this Court. From the perusal of said orders, it clearly appears that, prima-facie, the issue of conspiracy is not proved against those co-accused, who are released on bail by this Court and co-ordinate Bench of this Court. Their case was on a different footing. In the present case, prima-facie, it appears that the applicant and other co-conspirators were having knowledge that by consuming the liquor (Lattha) the person may die, hatched the conspiracy for preparing the liquor (Lattha).
The Hon'ble Supreme Court in a decision reported in AIR 1977 SC Page 45, more particularly, in paragraph 20 of the said judgment, has 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."
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.
In the present case, from the perusal of charge-sheet, it is required to be considered the main ingredient of Section 299 of I.P. Code
-"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 his "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 poisonous chemical.
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 substances and if added in the liquor, then person consuming that liquor receive adverse effect on the body and health also.
I have considered the gravity and nature of offence and it can be said that it is an anti-social act of the applicant. In the State of Gujarat, manufacturing and supply of liquor is banned by law. From the perusal of the papers as well as circumstances, prima-facie case is made out against the present applicant. Even, bail application of co-accused persons are also dismissed by this Court. Over and above, this being a successive bail application, no change in circumstances is brought on the record warranting reconsideration of the case of the applicant. So, on this count also, bail application of the applicant requires to be dismissed. Considering the facts of the case, in my view, ground of parity is also not available and cannot be pressed into service in favour of the applicant and hence the same also requires to be rejected.
From the above observations, I have not found any substance in the present application and looking to the above observations, present application is required to be dismissed and is hereby dismissed. Rule is discharged.
(Z.K.SAIYED, J.) sas Top