Gujarat High Court
Vipinchandra Omprakash Agrawal, ... vs State Of Gujarat on 30 July, 2024
NEUTRAL CITATION
R/CR.MA/18169/2019 ORDER DATED: 30/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 18169 of 2019
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VIPINCHANDRA OMPRAKASH AGRAWAL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. JIT P PATEL(6994) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 30/07/2024
ORAL ORDER
1. The respondent No.2, although served with the notice issued by this Court, has chosen not to remain present either in person or through an advocate and oppose this application.
2. By this application under section 482 of the Code of Criminal Procedure,1973, the applicant seeks to invoke the inherent powers of this Court praying for quashing of the first information report being C.R. No.III-427 of 2019 registered before the Santrampur Police Station, for the offence punishable under sections 65(a)(e), 116-B, 98(2), 81 and 83 of the Gujarat Prohibition Act.
3. The controversy involved in the present case pertains to the prohibition offence. It is alleged in the complaint that all the accused persons named in the FIR are indulged in the business illegal trafficking of prohibited Indian Made Foreign Page 1 of 8 Downloaded on : Fri Aug 16 21:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/18169/2019 ORDER DATED: 30/07/2024 undefined Liquor from outside the State of Gujarat and have kept the same at the premises owned by them and then supplied it at the different places situated within the State of Gujarat, and there committed the offence under the provisions of the Prohibition Act.
4. Learned advocate Mr. Mitul K Shelat assisted by learned advocate Mr. Jit P. Patel appearing for the applicant submits that the present applicant-accused has been falsely implicated in the present offence on the basis of the statement made by the co-accused. He is not directly or indirectly connected with the commission of the offence. He further submits that the applicant-accused is a Director of Starlight Bruchem Ltd. and indulged in the business of manufacturing and distributing liquor in the name, style and brand as Prince-Country Liquor having a valid license to supply the liquor within the territory of State of Rajasthan. Learned advocate Mr. Shelat also submits that liquor trading is permissible in the State of Rajasthan and, therefore, the applicant-accused cannot be prosecuted solely on the basis of the statement made by the co-accused that they have brought the prohibited liquor into the State of Gujarat from the wine shop of the applicant-accused. Even if looking to the said statement of one of the co-accused, namely, Pankajkumar Kalal, he has only stated that accused Dharmendrasinh, who was working at the wine shop of the applicant-accused at Anandpuri, used to supply the contraband liquor into the State of Gujarat and except this, no other incriminating material whatsoever is there against the applicant-accused. Learned advocate Mr. Shelat further submits that the applicant-accused is a manufacture of liquor Page 2 of 8 Downloaded on : Fri Aug 16 21:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/18169/2019 ORDER DATED: 30/07/2024 undefined having a company and he does not have any retail shop. The said company is participating in tender process for getting the contract of supply of liquor to the big corporate houses. The applicant-accused company is not selling the liquor on retail basis. One of such tender was awarded to the applicant- accused by one Rajasthan State Ganganagar Sugar Mills Limited on being successful in the bidding process. He further submits that as per the tender policy, it was the Rajasthan State Ganganagar Sugar Mills Ltd., which supplies the products of the applicant-company to the various other licensee vendors and the applicant-accused does not have any control over the distributor of liquor by the above referred Sugar Mills Ltd. to various other vendors. Learned advocate Mr. Shelat submits that after the liquor being supplied to the distributor company, the liability of the applicant-company comes to an end. He also submits that the applicant-accused does not have any Wine Shop (Theka) near or at Banswada District and a certificate to that effect has also been issued by the concerned District Excise Officer. Learned advocate Mr. Shelat further submits that there is no question of doing any illegal activity by the applicant-accused as the entire process of manufacturing of liquor and its packaging is being monitored by the Excise Department, Rajasthan. He also submits that even the name of the applicant-accused has also been wrongly mentioned as Rahul @ Vicky @ Vipin Agarwal as he has never been referred or known as Rahul or Vicky and the applicant-accused is a senior citizen. Therefore, when the applicant-accused was doing his legally permissible business in the State of Rajasthan, he cannot be prosecuted in another State only on Page 3 of 8 Downloaded on : Fri Aug 16 21:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/18169/2019 ORDER DATED: 30/07/2024 undefined the basis of statement made by the other accused that he has brought the liquor within the territory of State of Gujarat from the shop of applicant-accused. To substantiate his submissions, learned advocate Mr. Shelat relies upon certain decisions rendered by different Coordinate Benches, which are as follows
i) In the case of Mahendrabhai Dahyabhai Patel vs. State of Gujarat, Criminal Misc. Application No.6705 of 2013;
ii) In the case of Subhashbhai Mohanbhai Patel vs. State of Gujarat, Criminal Misc. Application No.11560 of 2013;
iii) In the case of Bhupatbhai Patel vs. State of Gujarat, Criminal Misc. Application No.15610 of 2013;
iv) In the case of Yogeshbhai Bhikabhai Chaudhari vs. State of Gujarat, Criminal Misc. Application No.18791 of 2014;
v) In the case of Sabmiller India Limited vs. State of Gujarat, Criminal Misc. Application No.19722 of 2013;
vi) In the case of Kantilal G. Tandel vs. State of Gujarat, Criminal Misc. Application No.15693 of 2013;
5. In such circumstances, referred to above, Mr. Shelat prays that since the case of the applicant-accused is on far better footing than the cases referred to above, the present application be allowed and the impugned FIR be quashed and set aside.
6. On the other hand, this application has been vehemently opposed by Mr. Soham Joshi, the learned Additional Public Page 4 of 8 Downloaded on : Fri Aug 16 21:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/18169/2019 ORDER DATED: 30/07/2024 undefined Prosecutor appearing for the respondent - State of Gujarat. Learned APP Mr. Joshi submits that the allegations levelled in the FIR pertains to the illegal trafficking of liquor which is prohibited in the State of Gujarat. He further submits that the name and specific role of the applicant-accused is clearly mentioned in the body of the complaint. However, the learned APP Mr. Joshi fairly concedes that during the course of investigation, the concerned investigating officer had paid visit to the factory premises of the applicant-accused and collected certain documents which clearly shows that the shop from where the Muddamal liquor was purchased does not belong to the applicant-accused and is not the owner of the said shop and, therefore, he does not want to make any further submissions and left it to the discretion of the Hon'ble Court to pass appropriate order.
7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether I should quash the complaint.
8. My attention is drawn to a decision of this Court in the case of Mahendrabhai Dahayabhai Patel (supra), decided on 06.12.2013). More or less, very similar issue was considered by a learned Single Judge of this Court. I may quote the relevant observations made by a learned Single Judge as under:
"7. From the facts and contentions noted hereinabove, it is apparent that the applicant who holds a licence for retail sale of liquor has sold the liquor which has been seized by the concerned authority in connection with the Page 5 of 8 Downloaded on : Fri Aug 16 21:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/18169/2019 ORDER DATED: 30/07/2024 undefined first information report in question from his shop at Daman. The provisions of the Bombay Prohibition Act are not applicable to the Union Territory of Daman and Diu. Evidently, therefore, sale of liquor within the limits of the Union Territory of Daman under a licence issued in that behalf, does not constitute any offence. However, on behalf of the respondents, reliance has been placed upon a notification dated 23.12.2010, issued by the U. T. Administration of Daman & Diu. It would, therefore, be necessary to refer to the contents of the said notification. A plain reading of the said notification shows that the same has been issued in the exercise of powers under section 5 of the Goa, Daman and Diu Excise Duty Act, 1964 and prescribes the maximum quantity of liquor which can be transported from one place to another within the District of Daman and Diu by any person without a permit issued in accordance with the provisions of the said Act. The said notification nowhere prescribes for the maximum quantity of liquor that can be sold by a person holding a licence for retail sale of liquor within the District of Daman and Diu. Under the circumstances, the said notification would not be applicable in the facts of the present case, where the allegation against the present applicant is that he has sold liquor from his shop at Daman. Besides, even if there is a breach of such notification, at best, action can be taken against such person for breach of such notification. However, the same would not in any manner constitute an offence under the provisions of the Bombay Prohibition Act.
9. In the light of the aforesaid discussion, it is apparent that insofar as the applicant herein is concerned, he was selling the liquor under a licence for retail sale of liquor at Daman which was issued by the Department of Excise, Daman. Therefore, the sale of liquor under a licence duly issued by the competent authority, viz. the Department of Excise, Daman, cannot in any manner be said to constitute an offence under the provisions of the Bombay Prohibition Act. Under the circumstances, having regard to the role attributed to the applicant in the offence in question, no offence under the provisions of the Bombay Prohibition Act can be said to have been made out qua Page 6 of 8 Downloaded on : Fri Aug 16 21:40:03 IST 2024 NEUTRAL CITATION R/CR.MA/18169/2019 ORDER DATED: 30/07/2024 undefined him. This is, therefore, a fit case for exercise of inherent powers under section 482 of the Code."
9. My attention is also drawn to another judgment of this Court in the case of Bhupatbhai Mohanbhai Patel (supra). I may quote the observations made by a learned Single Judge in paras 5, 6 and 7 as under:
"5. Considering the FIR as a whole, the contentions raised by the applicant in the application and the affidavit in reply which is filed in this proceeding, it is an admitted position that the applicants firm holds a valid licence for retail sale of a liquor and the goods which are seized by the authorities are found to have been purchased from the shop of the applicant at Daman. The provisions of Bombay Prohibition Act are not applicable to the Union Territory of Daman and Diu and therefore, any sale of liquor within the territory of Diu and Daman does not constitute any offence. The reliance placed for by the learned Additional Public Prosecutor on the notification dated 23.12.2010 issued by the authorities of the Union Territory of Diu and Daman is, with respect, misplaced as the same relates to the maximum quantity of liquor which can be transported from one place to another within the Districts of Daman and Diu by any person who does not have any permit issued under the provisions of Goa, Daman and Diu Excise Duty Act, 1964.
6. It may be noted that as observed by this Court (Coram: Harsha Devani, J.) in Criminal Misc. Application No.6705 of 2013 that a notification does not prescribe for maximum quantity of liquor that can be sold by a person holding a licence for retail sale of liquor within the Districts of Daman and Diu and therefore, as held by this Court in the aforesaid decision, the notification would not be applicable in the facts of the present case and even if there is any breach of the said notification, the same would not constitute an offence under the provisions of the Act.Page 7 of 8 Downloaded on : Fri Aug 16 21:40:03 IST 2024
NEUTRAL CITATION R/CR.MA/18169/2019 ORDER DATED: 30/07/2024 undefined
7. Considering the foregoing, therefore, and even the affidavit filed by the investigating agency, the role which is attributed to the present applicant is that he sold the liquor under licence for retail sale of liquor at Daman and the same cannot, in any manner, be said to constitute an offence under the provisions of the Act. In view of the aforesaid discussion, therefore, as the applicant who is Manager of a firm having a valid licence for retail sale of liquor in Daman and as no other role can be culled out from the impugned FIR, any further continuance of the impugned FIR and the consequential proceedings would amount to abuse of process of law and Court and hence, in order to secure the ends of justice, this is a fit case to exercise inherent powers conferred under Section 482 of the Code."
10. In view of the above, this application is allowed qua the applicant herein. The First Information Report vide C.R. No.III-427 of 2019 registered before the Santrampur Police Station is ordered to be quashed qua the applicant herein. Consequently, all further proceedings pursuant thereto stand terminated. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J) VAHID Page 8 of 8 Downloaded on : Fri Aug 16 21:40:03 IST 2024