Ajay Kumar And Others vs State Of Himachal Pradesh

Satyen Vaidya, J

All these petitions are being decided by a common order, as common questions of law and facts are involved.

On 11.1.2022, a police party of Police Station, Khundian, District Kangra, H.P., during patrol, intercepted a vehicle (Tempo) No. HP29C- 8877 and found 200 boxes having 12 bottles of 750 ml in each of the boxes of country liquor of “Pure Santra” brand loaded therein. The vehicle was driven by one Abhishek, who handed over to police a permit No.11001223247796 with pass No. 1110122341577 and permit “Form L-34”, according to which, the consignment was being transported to M/s Durga Enterprises, Old Hoshiarpur Road Una H.P. from M/s Goverdhan Bottling Plant Pvt. Ltd, Jogindernagar, District Mandi, H.P. (for short Bottling Plant) via route Palampur, Sujanpur, Dhaneta, Bangana and Una. The Tempo, however, was intercepted on a different route. Cutting was also found on Form L-34, which revealed that vehicle No. HP29C-8877 was written by scoring of original writing. A case under Section 39 (1) (A) of the H.P. Excise Act and Sections 420 and 120B of IPC was registered vide FIR No. 5 of 2022 dated 11.1.2022, by police of Police Station, Khundian, District Kangra, H.P.

According to Investigating Agency, many persons, including bail petitioners had entered into a criminal conspiracy to commit the alleged offences and in pursuance thereof have committed the offences punishable under the aforesaid provisions of law.

Petitioners apprehending their arrest in the above noted cases have approached this Court for grant of pre-arrest bail to each of them. The common grounds, seeking bail by the petitioners are that they are not involved in any offence. According to them, their implication is false with ulterior purpose. It is contended on their behalf that they all are permanent residents of the State of Himachal Pradesh and there is no apprehension or likelihood of their fleeing from the course of justice. It is submitted that all the petitioners have already joined investigation as and when called upon to do so. As per them, for the last more than ten days none of petitioners have been called to join investigation. It is further submitted that the entire preliminary investigation is complete and no purpose shall be served by the arrest and custody of the petitioners. All the petitioners have undertaken to abide by all the conditions, as may be imposed by this Court.

Per contra, the petitions have been contested by the respondent-State. It is stated that during investigation, it has been found that a transit permit has been used more than once for transporting the manufactured liquor from Bottling Plant. In addition, status report which is pari-materia in all the cases, it has been stated that the bail petitioners have been questioned during investigation more than once. Records from the Bottling Plant as well as Excise Department have been considered and relevant records have been taken into possession and are being examined. Opinion as to handwriting of questioned documents is being sought from the experts. The petitioners are stated to be required for further interrogation and questioning.

I have heard the learned counsel for the parties and have also gone through the records carefully.

From the perusal of status report and also the submission made by the learned Additional Advocate General, it prima-facie appears to be a case of evasion of excise duty. On 24.1.2022, during the course of hearing of Cr.MP(M) No. 121 of 2022, it was alleged on behalf of the respondent that the investigations were required to be carried in the matter to ascertain whether the case in hand was part of some larger racket operating in the State? From the investigation carried so far, as is evident from the contents of status report filed on behalf of the respondent, the aforesaid apprehension has not been substantiated.

The offence under Section 39 (1) (A) of H.P. Excise Act is punishable with imprisonment upto three years whereas offence under Section 420 IPC is punishable with imprisonment upto seven years and offence under Section 120B of IPC, if proved, shall also not attract punishment of more than seven years of imprisonment in the given facts of the case.

The FIR was registered on 11.1.2022. Investigating Agency already had sufficient time to arrive at a definitive conclusion, based on its investigation, especially when all the bail petitioners have joined the investigation as and when required. No specific ground has been shown for requiring the custodial interrogation of the bail petitioners. From the material submitted on behalf of the respondent, it does not appear to be a case, warranting custodial interrogation of bail petitioners.

It is trite law that at the stage of deciding bail petition, a balance between the rights of an individual and interest of public order is to be maintained carefully. In the facts of instant case, no fruitful purpose shall be served by pre-trial incarceration of the bail petitioners. It is not the case of the respondent that recoveries are to be effected from the bail petitioners. All the relevant records are already in possession of the investigation agency. It has not been alleged on behalf of the respondent that in case of grant of pre-arrest bail to the petitioners, further investigation is likely to be affected adversely.

Petitioners in Cr.MP(M) Nos. 222 and 223 of 2022 are the owners of bottling plant and petitioners in Cr.MP(M) Nos. 189, 218, 219 and 220 of 2022 are its employees. Petitioner in Cr.MP(M) No. 121 of 2022 is not found to be directly connected with either the Bottling Plant or the transportation of product therefrom. Petitioner in Cr.MP(M) No. 224 is the Assistant Excise & Taxation Officer, deployed at the Bottling Plant.

All the petitioners are permanent residents of the State of Himachal Pradesh. There is no likelihood of their fleeing from the course of justice. The petitioners have roots in society. The interest of justice can be served by putting the petitioners to terms and conditions.

In view of peculiar facts and circumstances of the case, petitions are allowed and the petitioners are ordered to be released on bail in case FIR No. 5 of 2022 dated 11. 1.2022, registered at Police Station Khundian, District Kangra, H.P. under Section 39 (1) (A) of H.P. Excise Act and Sections 420 and 120B of Indian Penal Code, on their furnishing personal bonds in the sum of Rs. 25,000/- each with one surety each in the like amount to the satisfaction of the Investigating Officer. This order shall be subject to following conditions:-

i) That the petitioners shall join the investigation and when required.

ii) That the petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to the Police.

iii) That the petitioners shall not in any manner tamper with the prosecution evidence.

iv) That any indulgence of petitioners in criminal activities during the continuance of this order shall entail cancellation of the bail granted to the petitioners.

v) That the petitioners shall not leave India till conclusion of trial without permission of the Court.

vi) That in case of violation of any of the conditions, the bail granted to the bail applicants shall be liable to be cancelled.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.