Gujarat High Court
Hareshbhai Bhimjibhai Valani vs State Of Gujarat on 29 March, 2023
Author: Samir J. Dave
Bench: Samir J. Dave
NEUTRAL CITATION
R/CR.MA/5422/2023 ORDER DATED: 29/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5422 of 2023
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HARESHBHAI BHIMJIBHAI VALANI
Versus
STATE OF GUJARAT
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Appearance:
MR S.N. MEHTA, SR. ADVOCATE WITH MR MAULIK R SHAH(6385) for the
Applicant(s) No. 1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 29/03/2023
ORAL ORDER
1. This is a successive bail application after the filing of charge-sheet in connection with the complaint being FIR No. 11199006220751 registered with Ankleshwar Rural Police Station, Bharuch for offences under sections 8(C), 22(c) and 29 of the N.D.P.S. Act.
2. Learned Senior Advocate Mr. Mehta appearing for the applicant submitted that the applicant is a sleeping partner / investor in the Firm named - Infinity Research and Development and didn't take any active part in the day-to-day affairs or business of the said company. He submitted that though the applicant is holding 15% share in the partnership firm as per the Partnership Deed, he did not derive any Page 1 of 8 Downloaded on : Sun Sep 17 23:07:38 IST 2023 NEUTRAL CITATION R/CR.MA/5422/2023 ORDER DATED: 29/03/2023 undefined income from the said Firm and to make good his point, he took the Court through the Income Tax Returns of the applicant for the relevant years. In fact, the applicant is running his own business in the name of M/s. Paradise Agro Industries Ltd., which is engaged in the manufacture and trading of Fertilizers and has nothing to do with the day-to- day business of the Firm in question.
2.1 The learned Senior Advocate took the Court through the charge-sheet papers to submit that general and vague allegations have been made against the applicant as he is a Partner in the Firm. He pointed out that as per the charge- sheet papers, specific allegations have been made against accused No.1 - Ramendra Dixit as he is the person who was actively involved in the day-to-day affairs of the Firm. He also took the Court through the Affidavit filed by the investigating officer before the Court below to submit that the allegations made therein are a reiteration of the allegations made in the charge-sheet and that nothing incriminating is found against the applicant herein.
2.2 The learned Senior Advocate further submitted that the Court below has rejected the bail application in a mechnical manner, without applying mind to the evidence on record. The reason that weighed with the Court for rejecting the bail Page 2 of 8 Downloaded on : Sun Sep 17 23:07:38 IST 2023 NEUTRAL CITATION R/CR.MA/5422/2023 ORDER DATED: 29/03/2023 undefined application was that the case involves narcotic drugs valuing around Rs.1300 Crores and did not appreciate the individual roles attributed to each of the accused persons and the allegations made against them. It was, accordingly, urged to exercise discretion in favour of the applicant by releasing him on regular bail.
2.3 In support of his submissions, learned Senior Advocate Mr. Mehta placed reliance upon the decision of Apex Court in the case of Lalankumar Singh & Ors. v. State of Maharashtra, 2022 (14) SCALE 698. It was a case of quashing of an FIR filed under the provisions of the Drugs and Cosmetics Act, 1940. In paragraphs - 18, 21, 23 and 28, it has been observed as under;
"18. It could thus clearly be seen that this Court has held that merely reproducing the words of the section without a clear statement of fact as to how and in what manner a director of the company was responsible for the conduct of the business of the company, would not ipso facto make the director vicariously liable.
21. Recently, in the case of Ashoke Mal Bafna vs. Upper India Steel Manufacturing and Engineering Company Limited8, this Court observed thus:
"9. To fasten vicarious liability under Section 141 of the Act on a person, the law is well settled by this Court in a catena of cases that the complainant should specifically show as to how and in what manner the accused was responsible. Simply because a person is a Director of a Page 3 of 8 Downloaded on : Sun Sep 17 23:07:38 IST 2023 NEUTRAL CITATION R/CR.MA/5422/2023 ORDER DATED: 29/03/2023 undefined defaulter Company, does not make him liable under the Act. Time and again, it has been asserted by this Court that only the person who was at the helm of affairs of the Company and in charge of and responsible for the conduct of the business at the time of commission of an offence will be liable for criminal action. (See Pooja Ravinder Devidasani v. State of Maharashtra [Pooja Ravinder Devidasani v. State of Maharashtra, (2014) 16 SCC 1 : (2015) 3 SCC (Civ) 384 : (2015) 3 SCC (Cri) 378 : AIR 2015 SC 675] .)
10. In other words, the law laid down by this Court is that for making a Director of a Company liable for the offences committed by the Company under Section 141 of the Act, there must be specific averments against the Director showing as to how and in what manner the Director was responsible for the conduct of the business of the Company."
23. It can thus be seen that there are no specific averments insofar as the present appellants are concerned. It is further to be noted that the present appellants are neither the managing director nor the whole-time directors of the accused company.
28. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation9, which reads thus:
"51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate 9 (2015) 4 SCC 609 taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred Page 4 of 8 Downloaded on : Sun Sep 17 23:07:38 IST 2023 NEUTRAL CITATION R/CR.MA/5422/2023 ORDER DATED: 29/03/2023 undefined under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction."
3. Heard learned advocate for the applicant and perused the material on record. As per the allegations made in the impugned FIR, the complainant, who is serving as Police Inspector, Ankleshwar Rural Police Station, had received an information on 15.08.2022 that in the factory premises of Infinity Research and Development, in which the applicant herein is one of the Partners, the Anti-Narcotics Cell of Mumbai Crime Branch had conducted a raid on 12.08.2022 and had recovered certain quantity of Mephedrone (MD Drug) and other chemical substances; however, still, some more quantity of the said drug / chemical substances is suspected to be lying in the said premises. Upon such information being received, a raiding party was constituted and thereafter, a raid was conducted at the factory premises of the said Firm on 16.08.2022. It is alleged that at the time of such raid, original Page 5 of 8 Downloaded on : Sun Sep 17 23:07:38 IST 2023 NEUTRAL CITATION R/CR.MA/5422/2023 ORDER DATED: 29/03/2023 undefined accused Nos.1 & 2 were present in the factory premises of the Firm and about 82.387 Kgs. of solid MD Drug estimated to be valued around Rs.82.38 Crores and about 1300 Litres of liquid chemical / MD Drug estimated to be valued around Rs.1300 Crores were found to be present in the premises, which were confiscated.
4. From the aforesaid allegations, it is clear that huge quantity of contraband substance has been found from the factory premises of the Firm in which the applicant herein is one of the Partners. It is the say of the applicant that he is a "sleeping" Partner in the Firm and is not involved in the day- to-day affairs of the Firm and hence, he is not aware about the alleged production / storage of the contraband substances in the factory premises of the Firm.
5. It is pertinent to note that in connection with the seizure of alleged contraband substances from the factory premises of the Firm by the Anti-Narcotics Cell of Mumbai, a complaint was registered before the concerned police station at Mumbai having jurisdiction vide C.R. No.25/2022 u/s. 8(c) r/w. 22(c) and 29 of N.D.P.S. and two of the accused persons, i.e. (i) Ramendrakumar Giriraj Kishor Dixit and (ii) Premprakash Parasnath Singh were arrested in connection with the said complaint. The aforesaid two accused persons came to be Page 6 of 8 Downloaded on : Sun Sep 17 23:07:38 IST 2023 NEUTRAL CITATION R/CR.MA/5422/2023 ORDER DATED: 29/03/2023 undefined arrested in connection with the impugned FIR after obtaining their custody from the concerned Sessions Court at Mumbai.
6. From the report submitted by the Investigating Officer, it appears that accused-Ramendrakumar Giriraj Kishor Dixit was the person who had ordered different types of chemical substances for the production of the contraband substance. Accused-Premprakash Parasnath Singh is alleged to have the role of providing the formulae for producing the contraband substance. During the period of police remand of the above accused, it has come out that the supply, production and delivery of the contraband substance has its nexus in the State of Maharashtra as well, which is evident from the raid conducted by the Anti-Narcotics Cell, Mumbai. It appears from the report of the Investigating Officer that the accused have not divulged much information before the police so as to unearth the larger conspiracy of production and distribution of drugs in two States.
7. At this stage, on the mere say of the applicant that he is a "sleeping" Partner of the Firm and has not taken active part in the day-to-day affairs of the Firm, his involvement in the commission of alleged offence could not be ruled out. Considering the huge quantity of substances recovered and the manner and method in which the substances were stocked in Page 7 of 8 Downloaded on : Sun Sep 17 23:07:38 IST 2023 NEUTRAL CITATION R/CR.MA/5422/2023 ORDER DATED: 29/03/2023 undefined the factory premises, it could not be believed that the applicant was not aware about the stocking, manufacture and distribution of the contraband substances from the factory premises. Hence, the decision relied upon by the learned Senior Advocate would not apply to the facts of the present case.
8. Considering the allegations made in the impugned FIR, the charge-sheet papers and the facts and circumstances of the case, this Court does not find this to be a fit case where discretion deserves to be exercised in favour of the applicant. Hence, the application is rejected.
(SAMIR J. DAVE,J) PRAVIN KARUNAN Page 8 of 8 Downloaded on : Sun Sep 17 23:07:38 IST 2023