Dismissed

Radheyshyam S/O Doodha v. State of Rajasthan

Rajasthan HC27 Aug 2024CRLMB/7742/2024

Case brief

AI extract

What is this about?

The Rajasthan High Court dismissed an anticipatory bail application under Section 438 Cr.P.C. held that Section 49(2) of the Rajasthan Excise Act imposes an absolute bar. The court rejected arguments regarding lack of initial material and distinguished other precedents due to the specific statutory prohibition.

What did the court decide?

Application for anticipatory bail dismissed as Section 49(2) of the Rajasthan Excise Act creates an absolute bar.

Radheyshyam S/O Doodha Vs State of Rajasthan — Anticipatory Bail | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous Bail Application No. 7742/2024

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Radheyshyam S/o Doodha, Aged About 52 Years, R/o Village Rajpura Police Station, Dabi District Bundi.

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----Petitioner

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Versus

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State Of Rajasthan, Through PP

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----Respondent

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For Petitioner(s) : Mr. Swadeep Singh Hora, Mr. Sahaj Veer Baweja

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For Respondent(s) : Mr. Tapesh Agarwal, PP Mr. Tarun Kant Somani, Dy. SP, Talera, District Bundi

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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27/08/2024

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This instant anticipatory bail application has been filed by the petitioner on 24.06.2024 under Section 438 of Cr.P.C. apprehending his arrest in connection with FIR No.188/2023 registered at Police Station Dabi, District Bundi for offences under Sections 19/54 and 54-D of the Rajasthan Excise Act.

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Heard learned counsel for petitioner as well as learned public prosecutor and perused the material available on record.

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Counsel for petitioner has vehemently argued that the petitioner is not named in the FIR and no concrete material has been found against the petitioner to rope him in the present criminal case. He submits that in absence of any material to involve the petitioner, the bar to grant the anticipatory bail as envisaged under Section 49(2) of the Excise Act, does apply to the

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facts of the present case. In support thereof reliance has been placed on the judgment of the Hon’ble Supreme Court passed in case of Shajan Skaria Vs. The State of Kerala: Criminal Appeal No.2622 of 2024 decided on 23.08.2024 and judgment passed by the High Court of Chhattisgarh in case of Bhima Vs. State of Chhattisgarh [2020 SCC OnLine Chh 2479] .

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Counsel for petitioner states that petitioner has prayed for transfer of the investigation, however, thereafter, a notice under Section 41-A CrPC has been served upon the petitioner, which is of no avail, therefore, in totality of facts and circumstances, the privilege of anticipatory bail to the petitioner be granted.

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Per contra , learned Public Prosecutor along with the Investigation Officer has opposed the bail application and pointed out that in the present case 760 Petti of illicit liquor has been recovered from two persons namely Nanda and Girraj, who were arrested at the spot. Thereafter, it transpired that both worked on instance of one Bheru Lal in whose name, the license of liquor was issued. Bheru Lal was also arrested. All three persons have been released on bail after their arrest.

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It has been pointed out that in further investigation, it has transpired that in fact Mahipat Singh, petitioner and few other persons are the main culprit, who runs the racket and involvement in operating the business of illicit liquor by procuring license in different name and petitioner is also involved in such conspiracy, as such custodial investigation of petitioner is required in the present case. It has been pointed out that the petitioner is not cooperating with the investigation and despite serving notice

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under Section 41-A Cr.P.C. on 16.03.2024, he has not turned up, therefore, in such circumstances, the anticipatory bail may not be extended to the petitioner.

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Heard counsel for both parties at length and perused the material available on record.

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This Court, prima facie, finds that the petitioner has been sought to be involved in the present case with the aid of Section 54-D of the Rajasthan Excise Act on account of having close nexus and in association with one Mahipat Singh, who is one of accused involved in the present case. This Court finds that the anticipatory bail application of Mahipat Singh has already been rejected by this Court vide order dated 22.07.2024.

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Under Section 49(2) of the Rajasthan Excise Act, there is specific bar for grant of anticipatory bail, which apply to the case of the petitioner as well. For ready reference, the provision of Section 49(2) reads as under:-

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“Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under the proviso to Section54, or under Sections 54-B, 54-D or 56 of this Act.”

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The Coordinate Bench of this Court in case of Jai Prakash @ Jepi Vs. State of Rajasthan: Criminal Misc. Bail Application No.4201/2020 decided on 01.05.2020, dismissed the anticipatory bail application stepping on Section 49 of the Rajasthan Excise Act and it has been clearly observed that there is an absolute prohibition against the anticipatory bail in a case

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pertaining to the offence under Section 19/54 of the Rajasthan Excise Act.

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As far as judgment referred by counsel for petitioner in case of Shajan Skaria (supra) is concerned, no prima facie case in respect of offences under SC/ST Act was found against the petitioner, therefore, in such circumstances, the Hon’ble Supreme Court observed that when no prima facie case exists, the bar envisaged under Section 18 of the SC/ST Act does not apply to grant benefit of anticipatory bail. The facts of the present case are altogether different and offence is under Excise Act.

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In case of Bhima (supra), the Hon’ble High Court of Chhattisgarh concluded that there is no material in the case diary to rope the petitioner in the offences under the Excise Act and therefore, in that situation, the benefit of anticipatory bail was granted in the present case. In the present case, connection of petitioner with other co-accused has revealed and further investigation is underway.

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In the case at hand, this Court does not find that without any, prima facie, material against the petitioner, he has been roped in the present case. There is bar to grant anticipatory bail for offences under Sections 19/54 and 54-D of the Excise Act. The Investigation in the present matter is pending and despite issuing notice under Section 41-A, petitioner has not appeared before the Investigation Officer. Otherwise also, it is settled proposition of law that the remedy of anticipatory bail can be granted only in exceptional circumstances. The present case does not fall within such exceptional category of cases, more particularly, taking into

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consideration the nature of offence of conspiracy wherein petitioner has been involved herein.

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As a result, this Court does not find the present case to be a fit case to grant the privilege of anticipatory bail to the petitioner and accordingly the bail application is hereby dismissed.

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(SUDESH BANSAL),J

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NITIN /8

Radheyshyam S/O Doodha v. State of Rajasthan

Case brief

What is this about?

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Radheyshyam S/O Doodha v. State of Rajasthan

Case brief

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