Gujarat High Court
Pratik Dilipbhai Chorwadiya vs State Of Gujarat on 12 December, 2022
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi, A. P. Thaker
R/CR.A/1947/2022 ORDER DATED: 12/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1947 of 2022
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PRATIK DILIPBHAI CHORWADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR DHRUVIN N DOSSANI(10528) for the Appellant(s) No. 1
NOTICE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 2
MR. L.B.DABHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE DR. JUSTICE A. P. THAKER
Date : 12/12/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. The present appeal has been filed by the appellant - original accused No.1 under Section 21(4) of National Investigation Agency Act, 2008 (NIA Act) read with Section 439 of the Code of Criminal Procedure, 1973 (Cr.PC) with a prayer that the appellant be enlarged on Regular Bail in connection with an F.I.R initially registered vide I-C.R. No. 20/2019 with DCB Police Station, Surat and subsequently re-registered vide RC No. 25/2019/NIA/DLI with the National Investigation Agency, for alleged offences punishable under Sections 489A, 489B, 489C, 489D, 120B and 34 of the Indian Penal Code (IPC).
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2. Heard Mr. Dhruvin Dossani, learned advocate appearing for the appellant, Mr. Kshitij Amin, learned Central Government Standing Counsel for respondent No.2 and Mr. L.B. Dabhi, learned APP appearing for respondent No.1- State.
3. Learned advocate for the appellant submitted that the FIR being C.R. No. I-20/2019 came to be initially registered with DCB Police Station, Surat City on 24.11.2019 under the aforesaid provisions of the IPC. Thereafter, the said case was re-registered with National Investigation Agency as RC No. 25/2019 /NIA/ DLI. It is submitted that as per the allegations levelled in the FIR, on an information that was received by PSI, DCB Police Station, the Car of the appellant was intercepted at Sarthan-Kamrej Road and during the personal search, a bundle of 203 Fake Indian Currency Notes of 2000 denomination of face value of Rs.4,06,000/- as well as one Mobile Phone was recovered. However, on being asked about the said Notes, it is alleged that the appellant revealed names of 5 more persons, who are joined as co- accused in the said FIR. It is alleged that the appellant has committed in connivance with the co-accused, offence punishable under Section 489A, 489B, 489C, 489D read with Sections 120B and 34 of the IPC.
4. Learned advocate for the appellant thereafter Page 2 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022 R/CR.A/1947/2022 ORDER DATED: 12/12/2022 submitted that after the investigation, the Investigating Agency filed a charge-sheet against the appellant as well as other co-accused on 20.2.2020. The appellant thereafter filed Criminal Misc. Application No. 44 of 2020 before the concerned Special Court with a prayer that he may be released on Regular Bail in connection with alleged offences. However, the concerned Special Court rejected the said Application vide order dated 3.12.2020. At this stage, it is also submitted that thereafter, the appellant filed Criminal Appeal No. 141 of 2021 before this Court. However, the appellant withdrew the said appeal on 1.2.2021. A copy of the said order is placed at Page-81 of the compilation.
5. At this stage, learned advocate for the appellant pointed out from the record that once again the appellant filed Criminal Misc. Application No. 22 of 2021 before the concerned Special Court with a similar prayer. However, the said application was dismissed on 9.8.2021.
6. Learned advocate further submits that thereafter the trial commenced and prosecution has examined 4 witnesses out of total witnesses of 130. It is further submitted that now the appellant once again filed NIA Criminal Misc. Application No. 63 of 2022 before the Special Court. However, vide impugned order dated 23.8.2022, the Special Judge NIA rejected the said Page 3 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022 R/CR.A/1947/2022 ORDER DATED: 12/12/2022 application. Against the said order, now the appellant has preferred the present Appeal.
7. Learned advocate Mr. Dossani assailed the impugned order passed by the Special Court mainly on the ground that though the Appellant filed application before the Special Court on the ground of change of circumstances, the concerned Court has not properly considered the said aspect. It is contended that the prosecution has examined only 4 witnesses out of the 130 witnesses and the trial is likely to take long time and, therefore, when the appellant is in jail since last 3 years, the appellant is required to be enlarged on regular bail.
8. Learned advocate for the appellant would further submit that from the papers of the charge-sheet, at the most, prosecution can establish the case against the appellant for the alleged offence punishable under Sections 489C of IPC. The maximum punishment prescribed for the offence punishable under Section 489C is 7 years and, therefore, when the appellant is in jail since last 3 years, he may be enlarged on bail on any reasonable terms and conditions.
9. The learned advocate would further submit that general principles of bail shall apply to the case registered under the NIA Act also, and therefore, when Page 4 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022 R/CR.A/1947/2022 ORDER DATED: 12/12/2022 the appellant is in jail since last 3 years, this Court may exercise discretionary powers in favour of the appellant by enlarging him on bail.
10. Learned advocate for the appellant has referred the allegations levelled against the appellant in the counter of the charge-sheet. The said papers are separately supplied by learned advocate during the course of hearing of this Appeal. Learned advocate, therefore, urge that this Appeal be allowed and thereby the appellant be released on bail.
11. On the other hand, learned Central Government Standing Counsel Mr. Kshitij Amin has vehemently opposed this appeal and mainly contended that this is a successive appeal filed by the appellant and, therefore, in absence of any change of circumstances, this court may not consider the case of the appellant on merits. Learned Central Government Standing Counsel has referred the order dated 1.2.2021, a copy of which is placed on record at Page-81 of the compilation and thereafter submitted that the learned advocate who was appearing for the appellant at the relevant point of time had withdrawn the appeal filed by the present appellant and, therefore, this successive application/ appeal may not be entertained by this Court.
Page 5 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022R/CR.A/1947/2022 ORDER DATED: 12/12/2022 11.1 Learned advocate further referred the impugned order passed by the Special Court (NIA) and thereafter contended that the concerned Court has after considering the papers of the charge-sheet as well as the affidavit filed by the respondent No.2 vide Exh-7 before the Special Court, has rejected the application filed by the appellant and in absence of any new ground or circumstances, the concerned Special Court has rightly dismissed the application filed by the appellant and, therefore, this Court may not interfere with the impugned order passed by the Special Court.
12. At this stage, learned advocate for the respondent No.2 has also produced on record the relevant material from the charge-sheet papers including the statement of one Govardhanbhai Kadvabhai Savaliya, Mitul Ashokbhai Zalavadiya and Hetul Gordhanbhai Ghava. After referring to the relevant statements of the witnesses, it is contended that there is ample material against the appellant in the papers of the charge-sheet from which it can be established during the course of trial that the appellant has committed the alleged offences. Learned advocate thereafter contended that there is ample material against the appellant herein from which it can be said that the appellant has committed the offence punishable under Section 489D also. The maximum punishment for the offence under Section 489A, 489B and Page 6 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022 R/CR.A/1947/2022 ORDER DATED: 12/12/2022 489D is life-imprisonment. It is also pointed out from the record that the total fake currency notes worth more than one crore have been seized from the accused persons. Learned advocate, therefore, urged that looking to the seriousness of the offence and punishment prescribed for the alleged offences, this Court may not exercise discretion in favour of the Appellant, simply on the ground that the appellant is in jail since last 3 years.
13. Mr. L.B. Dabhi, learned APP has also supported the submissions canvassed by Mr. Kshitij Amin, learned Central Government Standing Counsel. Learned APP has also urged that this appeal be dismissed.
14. Having considered the submissions canvassed by learned advocate appearing for the parties and having gone through the material placed on record as well as papers of the charge-sheet, which are supplied by the learned advocates during the course of hearing of this Appeal, it has emerged that the FIR for the alleged offence punishable under Sections 489A, 489B, 489C, 489D, 120B and 34 of the IPC has been filed against the appellant and other co-accused. It is pertinent to note that the appellant was found with fake currency Notes worth Rs.4,06,000/- when it was transported from Sarthan-Kamrej Road, Surat. The appellant is shown as accused No.1 in the FIR and even in the papers of the Page 7 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022 R/CR.A/1947/2022 ORDER DATED: 12/12/2022 charge-sheet. It would further revealed from the record that the appellant filed Criminal Appeal No. 141 of 2021 before this Court after filing of the charge-sheet against him. When this Court was not inclined to entertain the appeal on merits, learned advocate who was appearing at the relevant point on behalf of the appellant withdrew the said appeal. Thus, this court was not inclined to entertain the case of the appellant on merits when it was withdrawn in the year 2021. Learned advocate for the appellant has failed to point out any change of circumstance after withdrawal of the said appeal in February, 2021. The only submission canvassed by learned advocate for the appellant is that the appellant is in Jail since last 3 years and out of 130 witnesses, only 4 witnesses have been examined during the course of trial and, therefore, trial is likely to take long time. It is, therefore, urged that the appellant be released on bail. However, it is pertinent to note that the maximum punishment prescribed for the alleged offence is life- imprisonment. Therefore, merely because the appellant is in jail since last 3 years, on the aforesaid ground urged by the learned advocate for the appellant, the appellant cannot be released on bail.
15. Learned advocate for the appellant submitted the case of the appellant on merits and contended that from the papers of the charge-sheet, the prosecution can Page 8 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022 R/CR.A/1947/2022 ORDER DATED: 12/12/2022 establish at the most case punishable under Section 489C of IPC only, for which maximum punishment prescribed is 7 years imprisonment, however, the said submission is also misconceived. This Court has gone through the papers of the charge-sheet as well as impugned order passed by the Special Court. Learned advocate appearing for the appellant insisted that this Court may examined the case of the appellant on merits and pass reasoned order and, therefore, this Court has considered the material available in the papers of the charge-sheet against the appellant from which it can prima-facie be said that there is material against the appellant from which it can be said that the ingredients of the alleged offence punishable under Sections 489A, 489B and 489D of IPC are also made out against the appellant.
16. From the papers of the charge-sheet it is revealed that during the course of investigation, the investigating agency has collected the material to show that as per the conspiracy hatched between the appellant and other co- accused, on 17.11.2021, the appellant used a fake currency note as genuine at Ambika Mobile and Electronics at Surat though his friend Mitul Zalavadiya. However, on suspicion raised by shopkeeper, Katargam Police detained Mr. Mitul Zalavadiya, friend of the appellant. Thereafter, the appellant who was present at the said shop, left the place immediately and switched off Page 9 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022 R/CR.A/1947/2022 ORDER DATED: 12/12/2022 his mobile phone. The said currency note, which was tried to be used as genuine by the appellant through his friend Mitul Zalavadiya, has been taken over by the Katargam Police Station and sent to Forensic Science Laboratory, Gandhinagar for comparison with Fake Indian Currency Note initially recovered from the possession of the present appellant. Thereafter, on 23.11.2019, appellant was intercepted at Public place on road, Sarthan-Kamrej Main road, towards Gadhpur Township, Near Lake village Farm, Surat in his Skoda Car and during personal search, one bundle of 203 Fake Indian Currency Note of 2000 denomination of face value of Rs.4,06,000/- and one Mobile was recovered from the appellant. During the course of investigation, the investigating agency has further collected the material that the present appellant conducted meeting with the original accused No.3 and accused No.6 at Bike Point Showroom at Surat and they used to sit there for many hours during June to September, 2019. It is further revealed from the papers of the charge-sheet that in furtherance of the conspiracy hatched between all the accused, the present appellant along with accused No.6, purchased screen printing frame, TVA liquid screen, Sonakate Screen Coating, butter paper, etc. from shop namely 'Vinayak Paper Company' at Surat before Diwali festival 2019 i.e. before 27.10.2019. Thereafter, in the month of October, 2019, the present appellant and the Page 10 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022 R/CR.A/1947/2022 ORDER DATED: 12/12/2022 original accused No.6 obtained colour Xerox machine from a shop namely 'Aarav Enterprises' Gokulam Arcade, Surat after paying the mortgage loan of Rs.35,000/-. The said colour Xerox machine was kept with one Alpeshbhai by accused No.6 against loan of Rs.35,000/-. The said machine was initially purchased by accused No.3 and accused No.6 from shop 'K.B. Copier Solution' of Ashokbhai Muljibhai Patel and installed by Anilbhai Vinubhai Patel on 18.2.2019. The said colour Xerox machine was recovered during the search of room used by accused No.5 at Swaminarayan Ashram, Ambav, Kheda, Gujarat. It is also revealed from the charge-sheet papers that all the accused persons transported printing material from Surat to Swaminarayan Ashram, Ambav in the Skoda Car of the present appellant and also in private transport. In furtherance of the conspiracy hatched by all the accused, the appellant as well as accused No.2 to 6, stayed at Swaminarayan Ashram, Ambav during September to November, 2019 and printed Fake Indian Currency Notes of 2000 denomination by using various printing process/ modus operandi. In support of the aforesaid allegations levelled against the appellant and other accused, the Investigating Agency has recorded statements of number of witnesses including one Govardhanbhai Kadvabhai Savaliya, owner of Vinayak Paper Company, statement of Mitul Ashokbhai Zalavadiya, friend of appellant and Statement of Ms. Page 11 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022 R/CR.A/1947/2022 ORDER DATED: 12/12/2022 Divyaben Rajeshbhai Gajera (Girlfriend of the appellant) and statement of one Hetul Gordhanbhai Ghava, (shop owner of Aarav Enterprise) . This Court has also perused the Mobile Analysis Report, including CDR of Appellant and other co-accused. It is revealed from the papers of the charge-sheet that the appellant was in contact with accused Nos.5 and 6 and from CDR of Mobile of the Appellant it is further revealed that he has travelled from Surat to Ambav on 30.9.2019 to 2.10.2019 and his stay from 7.10.2019 to 12.10.2019, from 14.10.2019 to 24.10.2019 and from 7.11.2019 to 15.11.2019.
17. Thus, from the material collected by the Investigating Agency during the course of investigation and from the papers of the charge-sheet, this Court is prima-facie of the view that the submissions canvassed by the learned advocate for the appellant that there is no material in the papers of the charge-sheet against the appellant that he has not committed offence punishable under Section 489A, 489B and 489D of IPC, is misconceived. This Court is prima-facie of the view that there is sufficient material in the papers of the charge- sheet from which it cant be said that prima-facie prosecution can establish that the appellant has committed the alleged offence punishable under Sections 489A, 489B and 489D read with Section 120B and 34 of the IPC.
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18. This Court has also considered the nature and gravity of the offence alleged against the appellant and punishment prescribed for the alleged offences. Once against, it is pertinent to note that this is successive bail filed by the appellant. Inspite of that, this Court has considered the case of the appellant on merits as learned advocate for the appellant has requested this Court to examine the case of the appellant on merits. We are also of the view that the appellant has failed to point out any change of circumstances after the withdrawal of the earlier appeal.
19. Looking to the overall facts and circumstances of the present case, we are not inclined to entertain the present appeal. Accordingly, same is dismissed. It is clarified that the observations made in this Order are tentative and shall not come in the way of Appellant at the time of trial.
(VIPUL M. PANCHOLI, J) (DR. A. P. THAKER, J) SAJ GEORGE Page 13 of 13 Downloaded on : Sat Dec 24 02:48:07 IST 2022