Vipin Kumar vs. State Of U.P.

1 Reserved on : 10 February 2020 Delivered on: 13 February 2020 Court No. - 81 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29246 of 2019 Applicant :- Vipin Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Bhanu Prakash Verma, Shri Dinesh Kumar Goswami,Sr. Adv. Counsel for Opposite Party :- G.A. And Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26853 of 2019 Applicant :- Amit Gupta Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kakkar,Anurag Shukla Counsel for Opposite Party :- G.A. And Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42038 of 2019 Applicant :- Amit Gupta Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kakkar,Anurag Shukla Counsel for Opposite Party :- G.A. And Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42054 of 2019 Applicant :- Amit Gupta Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kakkar,Anurag Shukla

2 Counsel for Opposite Party :- G.A. And Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33090 of 2019 Applicant :- Vipin Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Bhanu Prakash Verma,Shri Dinesh Kumar Goswami,Sr. Adv. Counsel for Opposite Party :- G.A. And Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33096 of 2019 Applicant :- Vipin Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Bhanu Prakash Verma,Dinesh Kumar Goswami, Sr. Adv. Counsel for Opposite Party :- G.A. Hon'ble Yashwant Varma,J. Prayers addressed on respective Bail Applications: (1). Criminal Misc. Bail Application No. 29246 of 2019 (Vipin Kumar Vs. State of U.P.): The present bail application has been filed by the applicant in Case Crime No. 128 of 2019, under Section 60 (A) of the Excise Act and Sections 304, 328, 272, 273 and 120-B I.P.C., Police Station Deoband, District- Saharanpur with the prayer to enlarge him on bail. (2). Criminal Misc. Bail Application No. 33090 of 2019 (Vipin Kumar Vs. State of U.P.): The present bail application has been filed by the applicant in Case Crime No. 27 of 2019, under Section 60 (A) of the Excise Act and Sections 304, 328, 272, 273 and 120-B I.P.C., Police Station Gagalhedi, District- Saharanpur with the prayer to enlarge him on bail. (3). Criminal Misc. Bail Application No. 33096 of 2019 (Vipin Kumar Vs. State of U.P.): The present bail application has been filed by the applicant in Case Crime No. 34 of 2019, under Section 60 (A) of the Excise Act and Sections 304, 328, 272, 273 and 120-B I.P.C., Police Station Nagal, District- Saharanpur with the prayer to enlarge him on bail. (4). Criminal Misc. Bail Application No. 26853 of 2019 (Amit Gupta Vs. State of U.P.): The present bail application has been filed by the applicant in Case Crime No. 27 of 2019, under Section 60-A of the Excise Act and Sections 272, 273, 304, 328 and 120-B I.P.C., Police Station Gagalheri, District- Saharanpur with the prayer to enlarge him on bail. (5). Criminal Misc. Bail Application No. 42038 of 2019 (Amit Gupta Vs. State of U.P.): The present bail application has been filed by the applicant in Case

4 Crime No. 34 of 2019, under Section 60-A of the Excise Act and Sections 272, 273, 304, 328 and 120-B I.P.C., Police Station Nagal, District- Saharanpur with the prayer to enlarge him on bail. (6). Criminal Misc. Bail Application No. 42054 of 2019 (Amit Gupta Vs. State of U.P.): The present bail application has been filed by the applicant in Case Crime No. 128 of 2019, under Section 60-A of the Excise Act and Sections 272, 273, 304, 328 and 120-B I.P.C., Police Station Deoband, District- Saharanpur with the prayer to enlarge him on bail. Proprietor/Partner of Shree Enterprises. The applicant in Criminal 2019 (Amit Gupta Vs. State of U.P.) and Criminal Misc. Bail U.P.) is stated to be the Proprietor/Partner of Aay Cee Cellullose Industries Pvt. Ltd. Since the allegations against the two applicants are common in the sense of being the alleged suppliers of Isopropyl Alcohol and the substances that were used to manufacture spurious liquor, their applications, with the consent of parties, are taken up for disposal together. The Case Crimes from which these Bail Applications emanate arise out of an incident where numerous persons died after drinking spurious and illicit liquor in the territory of P.S. Jhabreda, District Haridwar in the 5 State of Uttarakhand. As these people travelled further and into the State of U.P. many others also died resulting in the registration of Case Crime No. 128 of 2019 before P.S. Deoband, District Saharanpur, Case Crime No. 27 of 2019, P.S. Gagalhedi, District Saharanpur and Case Crime No. 34 of 2019 in P.S. Nagal, District Saharanpur. The allegation in the First Information Report is that spurious liquor was sold and supplied by all the accused resulting in the death of almost 144 persons. The Police has already submitted a charge sheet against all the accused and the trial in the State is ensuing. Insofar as the trial in the State of Uttarakhand pertaining to Case Crime No. 22 of 2019 registered in that State is concerned, the trial has progressed some distance and almost 29 prosecution witnesses examined. Insofar as the applicants whose applications are being disposed of by this order are concerned, they are stated to be duly registered and authorized traders in Isopropyl Alcohol. As per their case Aay Cee Cellullose Industries Pvt. Ltd. is stated to have sold certain quantity of Isopropyl Alcohol to Shree Enterprises. Shree Enterprises in turn sold those goods to Sparshi Enterprises. The prosecution case essentially rests on the statement of a co-accused Arjun who in his statement is stated to have initially purchased 4 drums of Isopropyl Alcohol from Shiv Shakti Compound where the godown of Aay Cee Cellullose is situate. The Court is apprised that the transfer of Isopropyl Alcohol between Aay Cee Cellulose Industries Pvt. Ltd., Shree Enterprises and Sparshi Enterprises was effected under cover of GST invoices which have been enclosed along with the paper book. In the first transaction, four drums of Isopropyl Alcohol are stated to have moved between the three entities aforementioned on 5 February 2019. In the second transaction two further drums of Isopropyl Alcohol are stated to have been transferred amongst the three entities. According to the statement of co-accused from the 4 drums of Isopropyl Alcohol which were initially purchased, when efforts were made to convert that substance into potable liquor expected results

6 were not achieved. The co-accused states that he accordingly returned two drums and thereafter purchased two additional drums from the godown of Aay Cee Cellulose which was thereafter utilised to prepare the illicit liquor which was ultimately sold and supplied.

Sri Goswami, the learned Senior Advocate appearing for the applicant Vipin Kumar has contended that Shree Enterprises is a firm validly registered in law and duly authorized and empowered to trade in Isopropyl Alcohol. Sri Goswami, learned Senior Advocate contends that presently and despite closure of investigation, no material has been gathered which may establish the complicity of the applicant in either the preparation, sale or distribution of spurious liquor. Sri Goswami, learned Senior Advocate has also referred to the valid GST registration certificates which are held by Shree Enterprises. Sri Goswami, the learned Senior Advocate states that no recoveries have been effected from Shree Enterprises and that the applicant is entitled to be enlarged on bail. Sri Gopal Swaroop Chaturvedi, learned Senior Counsel appearing for the applicant Amit Gupta, Proprietor/Partner of Aay Cee Cellulose submits that presently the entire prosecution case rests upon confessions allegedly recorded by the Investigating Officer and that these statements are wholly inadmissible in law. He submits that continued incarceration of the applicant in light and based upon these confessional statements alone is wholly illegal and that the applicants consequently are entitled to be enlarged on bail. Sri Chaturvedi has also referred to the report submitted by the Forensic Science Laboratory, Dehradun which upon a testing of the samples which were provided to it, has found that they tested positive for Methanol and negative for Isopropyl Alcohol. Sri Chaturvedi on the basis thereof contends that this also and since Aay Cee Cellulose is not shown to have supplied Methyl Alcohol is a circumstance which must be read in favour of the applicant.

7 Sri Vikas Sahai, the learned A.G.A. opposing the submissions addressed in support of the bail has contended that a heinous crime was committed by the applicants and other accused acting in concert and as part of a common conspiracy to sell and supply illicit liquor. Sri Sahai, the learned A.G.A. submitted that no material has been brought on the record to establish the actual movement of the alleged Isopropyl Alcohol sold and transferred between the three entities under cover of the invoices which have been referred to. He submits that the invoices only represent paper transactions and do not constitute a genuine sale of Isopropyl Alcohol. Sri Sahai, the learned A.G.A. contends that a despicable crime was committed resulting in the death of as many as 144 persons. From the material placed on the record, it was pointed out that the Investigating Authorities undertook post mortem of as many as 99 persons falling within the juri iction of three police stations situate in the State of U.P. Sri Sahai has also laid stress upon the report of the Forensic Science Laboratory, Dehradun which upon testing of the 56 drums which were seized from the godown of Aay Cee Cellulose Industries Pvt. Ltd. has opined that they contained Methanol poison. In view of the aforesaid it was contended that what was actually sold was methanol a poisonous substance and that the transactions of transport of Isopropyl Alcohol were mere sham transactions. At the outset and before proceeding to evaluate the submissions noticed above, it becomes pertinent to note that despite repeated queries and opportunities given by the Court to establish the actual movement of goods comprised in the invoices, Sri Goswami, the learned Senior Advocate, was unable to draw the attention of the Court to any evidence, documentary or otherwise, which may have established that the goods were in fact consigned or delivered under cover of the invoices. Before proceedings to deal with the contentions addressed, it is 8 pertinent to bear in mind that both Isopropyl Alcohol and Methyl Alcohol/Methanol are classified as hazardous chemicals under the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1981 1 framed under the Environment Protection Act, 1986 2. Methyl Alcohol/Methanol is also classified as a dangerous inflammable liquid under the provisions of the Inflammable Substances Act, 1952 3. The Government of U.P. under the Uttar Pradesh Poisons (Regulation of Possession and Sale) (Third Amendment) Rules, 2014 4 has classified Methyl Alcohol/Methanol to be a poisonous substance and to which consequently the provisions of the Poisons Act, 1990 5 would apply. Neither Aycee Cellulose nor Shree Enterprises in whom the applicants are proprietors/partners were shown to be authorised to deal in Methyl Alcohol/Methanol or to hold appropriate registrations/licenses to store that poisonous substance. The Court at the outset notices from the seizure memo that as many as 56 drums of Methyl Alcohol/Methanol were recovered from the godown of Aay Cee Cellulose. This fact was not challenged before this Court. These 56 drums though containing Methyl Alcohol/Methanol bore markings of different products including that of Isopropyl Alcohol. As was pointed out by the learned A.G.A., the FSL upon testing the seized stock of 56 drums has opined that it contained Methanol poison. Sri Goswami, the learned Senior Advocate proffered no explanation in this respect. This aspect assumes significance since none of the three entities were shown to be licensed to possess or deal in Methyl Alcohol/Methanol. The statement of the co-accused clearly refers to the drums in question being utilised for manufacture of spurious liquor and having been procured from the godown of Aay Cee Cellulose. No explanation in 1 1981 Rules 2 1986 Act 3 1952 Act 4 2014 Rules 5 1990 Act

9 respect of this aspect was preferred either by Sri Chaturvedi or Sri Goswami learned senior counsels appearing for the respective applicants. In fact the seizure was not even assailed. Nor was the fact that the godown belonged to Aycee Cellulose denied. Regard must also be had to the fact that the spurious liquor which was seized from co accused also upon testing by FSL was found to have the presence of Methyl Alcohol/Methanol. It therefore prima facie appears that the illicit liquor was possibly manufactured using Methyl Alcohol/Methanol alone. The similar contention held thus:

“25. In the order of the High Court dated 5th November, 2001 in Crl. Misc. No. 22243 of 2001, it is seen that an argument was addressed on behalf of the respondent that except the statement of Rajan Tiwari, a co-accused, there is no other material against him and since the confession of co- accused cannot be used as substantive evidence and there being no other material on record there is no possibility of his conviction in the case. Therefore, he should be enlarged on bail. It was also argued by the counsel for the respondent that the confessional statement made before the Metropolitan Magistrate, Delhi was later retracted and while recording the confessional statement the Magistrate concerned did not observe the required formalities envisaged in Section 164 of the Criminal Procedure Code. It was also argued that the maker of the confession Rajan Tiwari was brought from custody, hence the Magistrate erred in recording the confessional statement without observing the necessary formalities. Therefore, the so-called confessional statement must be ignored for the purpose of finding out the existence of a prima facie case. The said learned counsel also argued that, at any rate, confession of co-accused not being a substantive piece of evidence, it can only be used in aid of other evidence and there being no such other evidence the confessional statement by itself cannot lead to conviction. The learned counsel for the respondent-accused in those proceedings had relied upon on number of judgments of this Court in support of his contention as could be seen from the said order of the High Court. Having noticed the said argument, the High Court recorded its findings as follows : “None of the abovesaid decisions, in my opinion, is of any help to the petitioner for the simple reason that all of them were rendered after trial. In the instant case the evidence is yet to see the light of the day. While the principles laid down in those cases about the nature of the confessional statement and the safeguards contained in section 164 Cr.P.C.

are unexceptionable, for the purpose of section 437

(1)(i)

of the Code what the Court has to see is

whether there are reasonable grounds to believe that the accused has been guilty of an offence punishable with death and imprisonment for life. Where circumstances exist which provide grounds to believe the guilt of the person the Court is not required to speculate as to quantum and nature of the evidence which would be led by the prosecution at the stage of trial".

11 ...... 29.Apart from the observations made by the High Court in regard to the existence of prima facie case as follows:- 19."The next argument of the learned counsel for the respondent is that prima facie the prosecution has failed to produce any material to implicate the respondent in the crime of conspiracy. In this regard he submitted that most of the witnesses have already turned hostile. The only other evidence available to the prosecution to connect the respondent with the crime is an alleged confession of the co-accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept. The admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial.” .....