1. This application under Section 439(1) of the Code of Criminal Procedure, 1973 is filed by the applicant/original accused No.27 as shown in the charge-sheet in connection with C.R. No.I-252 of 2009 and for which Sessions Case No.36 of 2010 for the offence punishable under Sections 302, 307, 328, 272, 273, 201, 109, 114 and 120B of the Indian Penal Code and under Section 65(a)(b)(c)(d)(e), 66(1)(b), 67(1)(a), 68, 72, 75, 81 and 83 of the Bombay Prohibition Act, 1949 after completion of investigation and filing of charge-sheet is filed.
2. The applicant a female accused aged around 72 years is in Central Prison, Sabarmati, Ahmedabad, pursuant to her arrest since 21st July, 2009.
2.1. The short facts of the prosecution are as under:
(1) That the FIR as above came to be registered with Odhav Police Station on 8.7.2009 by one widow of the victim who died after consumption of spurious/illicit liquor. Initially name of the applicant was not mentioned in the FIR but during course of investigation and statement recorded by the investigating officer it was found that two persons who consumed liquor from the residence of the applicant died and four other persons were hospitalized with complaint of serious ailment and thereafter the applicant was arrested on 21.7.2009. Initially, Section 304 read with Section 328 of Indian Penal Code were levelled and later on the applicant was charge-sheeted with Sections 302, 307 and other offences of IPC and Bombay Prohibition Act. As per charge-sheet filed on 5.9.2009 and till today even charge is not framed by the Competent Court.
3. In the above backdrop of allegations, learned advocate for the applicant submits that the applicant a female accused aged around 52 years is entitled to benefit of first proviso to Clause (I) (II) of sub-section (1) of Section 437 of the Code and further the allegations against the applicant are of purchasing and selling spurious liquor to which she had no knowledge about poisonous chemical viz. 'Methanol' added by the manufacturer and she cannot be charged under Section 302 of the Code along with other sections. It is submitted that at present even as per the prosecution the involvement of the applicant in the above crime surfaces on the record on the basis of a few statements of the persons who were hospitalized pursuant to consumption of such liquor and particularly after a gap of two years even charge is not framed and considering the number of witnesses and other documents which form the part of the charge-sheet, the trial is likely to take substantial long time, by imposing suitable conditions the applicant may be enlarged on bail.
3.1. So far as supply chemical namely 'methanol' it is alleged that persons from Vadodara dealing in such chemicals supplied to one Vinod @Dagri, Sunil Ghodurao More and Dilipbhai Kurjibhai Patel, while no allegations appears against the applicant of manufacturing such spurious liquor but her role is of vendor who sold such spurious liquor to a few consumers.
4. Per Contra, Ms.Manisha L .Shah, learned APP, for the respondent-State has vehemently opposed consideration of prayer of grant of bail on the ground that the applicant is not mere a purchaser or seller of the liquor but she was in fact knew the usage of chemical namely methanol in the manufacturing of spurious liquor and due to consumption of such spurious liquor two persons atleast died and four received serious ailment, for which, they were hospitalized and in the City of Ahmedabad around 147 persons died and 205 suffered minor or severe injuries/ailment and in such a wide state incident of unprecedented nature, when involvement of the applicant appears on the basis of statement recorded by the investigating officer and as a part of conspiracy with persons like Vinod @Dagri son of Chandubhai Chauhan, Sunil Ghodurao More (Marathi), Dilipbhai Kurjibhai Patel, Jayest Hiralal Thakkar, Rakesh Giri, Subhas Giri, Chirag Pajkaj Thakkar who manufactured, purchased and sold the spurious liquor and the applicant is part of such wide spread conspiracy and result of which number of persons have died and the poisonous substance namely methanol was found as per viscera report, the applicant is not to be granted bail. In support of her argument learned APP also placed reliance on the affidavit filed by investigating officer and submitted that this is not a case to consider the case of the applicant under proviso to Clause (I) (II) of sub-section (1) of Section 437 of the Code since applicant is a co-accused. It is further submitted that the case of the co-accused is also not considered by the coordinate Bench of this court. The statements of persons affected by purchaser and/or consumption of liquor from the applicant is a matter to be examined by the trial Court along with other evidence.
5. In the rejoinder learned advocate for the applicant has submitted that in the case of Chandran @ Manichan @Maniyan & Ors. v. State of Kerala [(2011) SCC (Cri.) 551], the Apex Court has considered a case having almost similar facts were learned Sessions Judge, (Kollam) by judgment dated 16.7.2002 for the various offence under Sections 120-B, 302, 307, 326, 328 and 201 read with Section 34 of Indian Penal Code and various other section of Kerala Abhari Act, 1077 where the Court has convicted accused for the above offence and in appeal the conviction and sentence so far as offence under Section 302 and 307 was set aside and however maintained the convictions of most of the appellants for the offence under Section 57-A (1) (ii) under the Abkari Act along with the convictions under Sections 324, 326, 328 and 201 IPC as also the other sections like Sections 55(h), (I) and 58 of the Abkari Act. It is submitted that in the above case around 31 persons died and 500 suffered injuries due to consumption of spurious liquor and because of mixing of chemical namely of poisonous substance caused death, blindness and other ailments to several persons. Therefore, it is humbly submitted that this a case where the applicant has prayed only a bail since the trial is not commenced and the applicant is behind the bar since last two years.
6. Having heard learned advocate appearing for the parties and on perusal of the material on record along with relevant police papers including the paper of charge-sheet and statements relied on by learned APP, I am of the opinion that the applicant-accused at this stage who is behind prison since 21st July, 2009 almost for about two years and even trial has not commenced deserves consideration for bail in exercise of powers under Section 439 (1) of the Code. The following aspects weighs this Court at this Stage for considering the bail of the accused.
that the applicant is a female accused aged around 72 years and in the facts and circumstances of the case deserves benefit of proviso to Clause (I) (II) of sub-section (1) of Section 437 of the Code;
on perusal of the papers prima facie it appears that the applicant may be one of the purchaser or seller to a few consumer and so far as conspiracy to manufacture and sell spurious liquor is concerned except the statement recorded no other material surfaces on record;
So far as supply of chemical namely 'methanol' by persons from Baroda to one [email protected], Sunil More and Harishankar @ Hario, and sold spurious liquor to the applicant The statements of the persons affected by purchase and or consumption of liquor from the applicant is a matter to be examined by the trial Court along with other evidence.
The charge-sheet is filed and investigation is over.
Other aspects can be looked into by the trial Court.
Trial is likely to be prolonged because of voluminous record and more than 1000 witnesses are to be examined by the trial Court.
7. That the Apex Court in the decision of Chandran @ Manichan @Maniyan & Ors. v. State of Kerala (supra) no doubt expressed sorry state of affairs of the authority in dealing with spurious liquor in the State of Kerala contrary to Kerala Act and in paras 131, 132 and 133 observed as under:
"131. Before we part with this case, we must note some very disturbing facts which have been revealed from the voluminous evidence by the prosecution. Here was a person who was unabashedly running his empire of spurious liquor trade and for that purpose had purchased politicians including public representatives, police officers and other officers belonging to the Excise Department. The trade was going unabated. Unfortunately, it is the elite of the society or the "haves" of the society who never purchase this kind of spurious liquor for obvious reason. It is only the poor section of the society which becomes the prey of such obnoxious trade and ultimately suffers. As many as 31 person have lost their lives, about 5 or more persons have lost their eyesight forever and several others have suffered in their health on account of the injuries caused to them. It is only by an accident that the mixing was not done properly on the fateful day in the sense that the liquor mixed did prove to be fatal or injurious. Bu that does not mean that when it was mixed on other days for months together that it was not injurious. The use of methanol was a dangerous proposition. It only shows that human avarice could create hell in God's own country, Kerala.
132. We are not only perturbed by the enormousness of the tragedy bu the enormousness of the liquor trade run by A-7 and that was under the so-called vigilant eyes of those who had duty to stop it. The avarice is not only on the part of the accused persons, but also on the part of those who benefit from this horrible business. Though 10 years have passed, the reverberations of this grim tragedy have not become silent.
133. We hope and expect that the Kerala Government takes up this issue and takes definite steps for overhauling the system. We are worried about the rotten system that allowed such trade not only to continue, but to thrive. It will be, therefore, for the administrators and the government to take positive steps, firstly to overhaul the system by weeding out the corrupt by punishing those who are responsible for the whole system looking sideways. We do not know as to whether such an exercise is taken up, but if it has not been taken up the Government is directed to take such steps. We do not think that things would come under control unless such exercise is taken, so as to save the poor man from such ghastly disaster."
7.1. However as noted and observed in earlier paragraphs of this order so far as applicant is concerned, due to sale of spurious liquor to few consumers, at this stage, two persons have died and other few suffered from various ailments and, therefore, at this stage knowledge about usage of 'methanol' for manufacturing spurious liquor and conscious participation in such activity except for selling such liquor prima facie do not appear against the applicant and, therefore, subject to scrutiny of other evidence by the trial Court, I am inclined to enlarge the applicant on bail.
8. Considering the above prima facie aspects of the matter, I find this is a fit case for granting bail since charge-sheet is also filed. Under the circumstances, the applicant is ordered to be released on bail in connection with C.R. No.I-252 of 2009 with Odhav Police Station, on his furnishing bond of Rs. 5000/-(Rupees Five Thousand) with one surety of like amount to the satisfaction of the lower Court and subject to following conditions :
not take undue advantage of her liberty or abuse her liberty;
not act in a manner injurious to the interest of the prosecution;
maintain law and order;
mark her presence before the concerned Police Station on every 1st and 15th day of English Calendar month between 11:00 am to 2:00 pm:
not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
furnish the address of her residence at the time of execution of the bond and shall not change the residence without prior permission of this Court;
surrender her passport, if any, to the Lower Court immediately.
9. The Authorities will release the applicant only if not required in connection with any other offence for the time being.
10. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
11. Bail bond to be executed before the lower court having jurisdiction to try the case.
12. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
13. Rule is made absolute to the aforesaid extent. D.S. Permitted.
(ANANT S. DAVE, J.) //smita// Top