Gujarat High Court
Dineshbhai Versibhai Thakor vs State Of Gujarat on 21 April, 2022
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/SCR.A/3186/2022 ORDER DATED: 21/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3186 of 2022
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DINESHBHAI VERSIBHAI THAKOR
Versus
STATE OF GUJARAT
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Appearance:
MR NIRAV K PADHIYAR(5678) for the Applicant(s) No. 1
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 21/04/2022
ORAL ORDER
1. Rule. Ld. APP waives Rule for the respondent State.
2. Considering the issue involved in the petition, which is in narrow compass and with the consent of learned counsel for the respective parties, matter is taken up for final disposal.
3. By way of present petition under Articles 226 and 227 of the Constitution of India read with section 482 of the Criminal Procedure Code, the petitioner herein questions the legality and validity of the impugned order dated 04.12.2021 passed below Exh:9 in Special Case (NDPS) No. 2/2021 by learned Additional Sessions Judge, Radhanpur, Dist. Patan.
4. Brief facts are that, the petitioner herein has been chargesheeted for the offence punishable under Sections 8(c), 20(b) (ii)(c), 22(c) of the Narcotic Drugs Psychotropic Substances (NDPS for short) Act. Since 19.01.2021, the petitioner is in jail. Chargesheet was submitted before the Special Court at Radhanpur and it has been registered as Special (NDPS) Case No.2/2021. Special Court, took cognizance of the offence and Page 1 of 4 Downloaded on : Sat Dec 24 15:20:09 IST 2022 R/SCR.A/3186/2022 ORDER DATED: 21/04/2022 issued summons vide its order dated 16.03.2021. It is pertinent to note that, vide Exh:9, in-charge Additional Public Prosecutor moved an application for addition of Section 447 of IPC and Section 4(1)(2), 4(3), 5(c) of Gujarat Land Grabbing (Prohibition) Act, 2020. The ld. Special Judge issued notice to the investigating officer directing him to file an affidavit. After submitting the affidavit, the learned Special Judge passed the final order below Exh:9, observing that, prima facie offence under Sections 4(1)(2), 4(3),5(C) of the land Grabbing (Prohibition) Act and Section 447 of IPC is made out and returned back the chargesheet filed under the provisions of NDPS Act and directed the investigating officer to file the chargesheet before the Special Judge (Land Grabbing). The Special Judge, Patan vide order dated 08.12.2021 took cognizance of the provisions of NDPS Act as well as Land Grabbing Act and accordingly, issued summons.
5. Aggrieved with the impugned order dated 04.12.2021 passed below Exh:9 by Additional Sessions Judge, Radhanpur, the accused herein preferred present petition invoking extraordinary jurisdiction of this Court.
6. This Court has heard Mr.N.K.padhiyar, learned counsel for the petitioner and Mr. Manan Mehta, learned APP for the State.
7. Mr. Padhiyar reiterating the contentions raised in the petition, would submit that, once the cognizance is taken by the Special Judge, Radhanpur, the Court has no jurisdiction to add the provisions of Land Grabbing Act. In this context, he submitted that, the provisions of the Land Grabbing Act are not attracted in the facts of present case and therefore, learned Sessions Judge, Page 2 of 4 Downloaded on : Sat Dec 24 15:20:09 IST 2022 R/SCR.A/3186/2022 ORDER DATED: 21/04/2022 Radhanpur has illegally exercised jurisdiction while passing the order below Exh:9, which requires interference by this Court.
8. On the other hand, learned APP Mr. Manan Mehta for the State fairly submits that, in the interest of justice, the Court may pass necessary order.
9. Having heard learned counsel for the respective parties and upon perusal of the material placed on record, this Court is of considered view that, the learned Sessions Judge, Radhanpur failed to appreciate the facts of affidavit filed by the investigating agency. It is clearly mentioned by the investigating officer in his affidavit that, the Collector, Patan, being a Chairman of the Committee is empowered to direct the police to file FIR for the offences under the Gujarat Land Grabbing (Prohibition) Act, 2020 and therefore, at this juncture, the investigating agency cannot opine whether offence under the Land Grabbing Act is made out or not. It is required to be noted that, specific procedure provided for registration of the offence under the Gujarat Land Grabbing Act. It is provided that, application for registration of the offence shall be presented in the prescribed form to the District Collector having jurisdiction over the area where the disputed land is situated. Upon receipt of the application, the Collector shall entrust the inquiry to the concerned officer as may be deemed fit. Even in the case of Government land, the Collector or the State Government may take suo motu cognizance. After receiving the inquiry report as provided under Rule 5.8, the Committee shall direct police to file FIR. The committee means, a notified by the State Government under the Chairmanship of the Collector for the purposes of the Act.
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10. In the facts of the present case, no such approval being granted by the committee duly constituted under the Act and Rules, 2020 thereunder. Even after reference to the police authority, sanction as provided under the Act has not been granted. The learned Additional Sessions Judge, Radhanpur, should have considered the mandatory provisions of the Act and Rules thereunder. This Court is of firm view that, in absence of any approval as discussed hereinabove, the learned Additional Sessions Judge, Radhanpur has no jurisdiction to hold that, offences under the provisions of the Gujarat Land Grabbing (Prohibition) Act, 2020 have been made out. If the learned Additional Sessions Judge would have properly read the affidavit of the investigating officer, then, the Court could not have passed the order. The impugned order passed below Exh:9 dated 04.12.2021, is not sustainable in the eye of law and same deserves to be quashed.
11. For the foregoing reasons, the impugned order passed below Exh:9 dated 04.12.2021 by learned Additional Sessions Judge, Radhanpur, is hereby quashed. Consequently, the order passed by the Sessions Judge, Patan dated 08.12.2021 below Exh:1 is also quashed and set aside. Special (NDPS) Case No.2/2021 is restored on the file of Additional Sessions Judge, Radhanpur, for its further proceedings in accordance with law. This Court has not examined the merits of the case. Registrar, District Court, Patan shall execute the order forthwith.
(ILESH J. VORA,J) SUCHIT Page 4 of 4 Downloaded on : Sat Dec 24 15:20:09 IST 2022