1 This successive application is filed under Section 439 of the Code of Criminal Procedure in connection with first information report registered at C.R.No.I-252 of 2009 with Odhav police station, Ahmedabad, for the offences punishable under Sections 302, 307, 328, 272, 273, 201, 109, 114, 120B of the Indian Penal Code, and Sections 65(a)(b)(c)(d)(e), 66(1)(b), 67-1A, 68, 72, 75, 81, 83 of the Bombay Prohibition Act, 1949.
2 Learned counsel for the applicant submits that this bail application is preferred by the applicant on the change of circumstance, namely, the Apex Court, vide order dated 9.12.2011 passed in Special Leave to Appeal (Cri.) No.8401 of 2011, permitted the applicant to move a fresh application for bail pointing out the order granted to a
-co-accused particularly who is branded as 'seller' of the same spurious country liquor. It is further submitted that the co-accused persons have already been enlarged on bail by this Court vide order dated 29.9.2011 and 18.10.2011 passed in Criminal Misc. Application Nos. 12385/201, 14355/2011 and 14238/2011. Therefore, on the ground of parity, this application for bail may be considered by this Court.
3 The learned Special Public Prosecutor has opposed grant of bail looking to the nature and gravity of offence.
4 Earlier, this Court [Coram: H.B. Antani, J. (as His Lordship then was)], vide order dated 6.4.2010 passed in Criminal Misc. Application No.13319 of 2009 filed by the applicant, refused bail to the applicant by assigning following reasons:
"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."
5 It is not in dispute that, against the above order, Special Leave to Appeal (Cri.) No.4207 of 2010 preferred by the applicant came to be dismissed by the Apex Court as withdrawn by order dated 19.7.2010.
6 In the second round of litigation also, the trial court rejected the bail application vide order dated 7.2.2011 and this Court also rejected vide order dated 4.8.2011. In appeal, the Apex Court did not interfere with the order of this Court, but granted liberty.
7 The submission made by the learned Senior Counsel for the applicant that liberty is reserved by the Apex Court to consider the case of the applicant for bail on the ground that the seller of methanol used for manufacturing illicit liquor is enlarged on bail by a Coordinate Bench of this Court, would not persuade this Court to exercise discretionary power, when the facts and circumstances of the case would reveal that, because of manufacture, sale, transportation and supply of methanol which was used for manufacturing illicit liquor, distribution and consumption of which ultimately resulted into more than 148 death in the City of Ahmedabd and particularly when the role of the applicant in commission of crime, prima-facie, surfaces on record and the trial is to commence shortly, I am inclined to concur with the reasons recorded by this Court [Coram: H.B. Antani, J. (as His Lordship then was)], vide order dated 6.4.2010 passed in Criminal Misc. Application No.13319 of 2009 filed by the applicant, rather than considering the reasons recorded by Coordinate Bench while enlarging the co-accused branded as 'seller' of methanol, a poisonous and deadly chemical which was used for manufacturing illicit liquor. No parity can be granted to the applicant considering the gravity of the crime and involvement of the applicant in a serious offence punishable under Section 302,etc. of the Indian Penal Code. This third round successive bail application is rejected summarily.
(ANANT S. DAVE, J.) (swamy) Top