Gujarat High Court
Mohammadbhai Adambhai Gawariya vs State Of Gujarat on 24 September, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/13482/2012 ORDER DATED: 24/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13482 of 2012
With
R/CRIMINAL MISC.APPLICATION NO. 13483 of 2012
With
R/CRIMINAL MISC.APPLICATION NO. 13484 of 2012
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MOHAMMADBHAI ADAMBHAI GAWARIYA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR SHUBHAM PRAJAPATI, ADVOCATE FOR MR BOMI H SETHNA(5864)
for the Applicant(s) No. 1
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 24/09/2021
COMMON ORAL ORDER
1. Rule. Learned APP waives service of notice of rule on behalf of respondent-State.
2. Mr.Shubham Prajapati, learned advocate for Mr.Bomi Shethna, learned advocate for the applicants states that in all the three matters, petitioner is common and FIR being CR.NO.-III-610 of 2012 registered with Mahuva Police Station, District-Surat, under Sections 66(1)(B), 65 (B) (C) (E) (F), 81 and 83 of the Prohibition Act, FIR being CR.NO.-III-609 of 2012 registered with Mahuva Police Station, District-Surat, under Sections 66 (1) (B), 65 (B) (C) (E) (F), 81 and 83 of the Prohibition Act and FIR being CR.NO.- III-608 of 2012 registered with Mahuva Police Station, District- Surat, under Sections 66 (1) (B), 65 (B) (C) (E) (F) of the Prohibition Act are registered against the present petitioner.
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3. Mr.Shubham Prajapati, learned advocate for the applicants stated that as per the prosecutions case, an information being received of prohibitory liquor being prepared at the bank of Ambika river complainant along with the Police Officials and Panchas had planned a trap and had reached the spot and as alleged accused no.1 was found preparing some prohibitory article and when the accused was asked for the license and permit, she could not provide so. Mr.Shubham, learned advocate stated that the statement of this accused was recorded and she alleged that she had purchased the goods as Jaggery from accused no.3 and Navsar from accused no.4 and it is alleged that Navsar and Jaggery was purchased from accused no.2 which in turn Jaggery was supplied by the accused no.3 and Navsar was supplied by accused no.4.
4. Mr.Prajapati, learned advocate stated that the applicant accused is running a grocery shop in the name and style of Adambhai Hasanbhai Gawariya at taluka Mauva since last 30 years from the time of his father and they are selling grocery, agriculture products and bi-products like wheat grains, pulses, fruits and vegetables and Mr.Prajapati, learned advocate states that muddamal Jaggery which was recovered by the Police is a edible item for cooking and the petitioner would have no knowledge of any of its misuse for preparation of any prohibited articles. The sale of Jaggery was by way of legal bills and further says that though allegation is made of having sold Navsar but no such article was recovered as muddamal. Mr.Prajapati, learned advocate relies on judgment passed by this Court in Criminal Miscellaneous Application No.13588 of 2011 dated 18.03.2016, Criminal Miscellaneous Application No.15372 of 2012 dated 24.11.2017, Criminal Miscellaneous Application No.14782 of 2012 dated 28.12.2017 Page 2 of 6 Downloaded on : Sun Jan 16 18:26:47 IST 2022 R/CR.MA/13482/2012 ORDER DATED: 24/09/2021 and Criminal Miscellaneous Application No.8633 of 2012 dated 04.03.2020, to fortify the submissions, that on the statement of co- accused the petitioner cannot be prosecuted and further, to state that Sections under Prohibition Act cannot be invoked against the petitioner in all the matters.
5. Mr.Prajapati, learned advocate states that prima facie from the FIR, it could be culled out that the Jaggery was not rotten and he states that the Jaggery may have been purchased by the accused, it would be edible Jaggery and therefore, the petitioners case would not be hit by Section 70(A) of the Bombay Prohibition Act, 1949, which is for the prohibition of the possession of the rotten Jaggery and Section 81 of the said Act is for the penalty for attempt for an illegal possession of rotten Jaggery, Mr.Prajapati submits that except bare sentence of the co-accused there is nothing against the present petitioner. The sale of Jaggery as such would not be any offence and in absence of any evidence on record to connect the petitioner for any sale of rotten Jaggery the proceedings against him would be onerous and creating hardships to face the unwarranted trial.
6. Learned APP states that the investigation would always proceed on the basis of statement of the co-accused and it is only during the investigation that further evidence could be gathered, thus there is no case for quashing.
In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not Page 3 of 6 Downloaded on : Sun Jan 16 18:26:47 IST 2022 R/CR.MA/13482/2012 ORDER DATED: 24/09/2021 possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised.
In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court made the following observations:-
"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;Page 4 of 6 Downloaded on : Sun Jan 16 18:26:47 IST 2022
R/CR.MA/13482/2012 ORDER DATED: 24/09/2021
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
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7. The statement of the co-accused would suggest that jaggery was purchased from petitioner but there is nothing to suggest that rotten jaggery was sold by the petitioner in all these matters. The petitioner states that it was a sale of edible jaggery. For the case of 'Navsar' sale nothing is procured against the petitioner nor the alleged Navsar has been made the muddamal of the cases. There is no case against the petitioner.
8. In view of the aforesaid facts, the FIR being CR.NO.-III-610 of 2012 registered with Mahuva Police Station, District-Surat, under Sections 66(1)(B), 65 (B) (C) (E) (F), 81 and 83 of the Prohibition Act, FIR being CR.NO.-III-609 of 2012 registered with Mahuva Police Station, District-Surat, under Sections 66 (1) (B), 65 (B) (C) (E) (F), 81 and 83 of the Prohibition Act and FIR being CR.NO.- III-608 of 2012 registered with Mahuva Police Station, District- Surat, under Sections 66 (1) (B), 65 (B) (C) (E) (F) of the Prohibition Act, chargesheet and subsequent proceedings qua the present petitioner is quashed. Rule is made absolute. Direct service is permitted.
(GITA GOPI,J) URIL RANA Page 6 of 6 Downloaded on : Sun Jan 16 18:26:47 IST 2022