Gujarat High Court
Pramod Rama Tandel vs State Of Gujarat on 11 September, 2023
NEUTRAL CITATION
R/CR.MA/17040/2018 ORDER DATED: 11/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17040 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 17020 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 17050 of 2018
==========================================================
PRAMOD RAMA TANDEL
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
BHAGIRATH N PATEL(9016) for the Applicant(s) No. 1
MR TEJAS P SATTA(3149) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/09/2023
COMMON ORAL ORDER
Since the issues involved in the present applications are identical in nature, Criminal Misc. Application No.17040 of 2018 is considered as lead matter and all the petitions are heard and decided together with the consent of the learned advocates for the respective parties.
1. The present application is filed for seeking following main reliefs:
"B. The Hon'ble Court may be pleased to Quash and set aside the FIR registered vide No. III/03/08 dated 02.01.2008 at Jalapore Police station for the offence punishable under Page 1 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023 NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined Section 66(1)(B), 65(E)(A), 81, 116(1)(B), of the Bombay Prohibition Act, 1949 qua the Petitioner and charge-sheet No.II 306/2008.
C. The Hon'ble Court be pleased to restrain the respondent authorities from taking any coercive action or arrest the petitioner with regard to the FIR registered vide No. III- 03/08 at dated 02.01.2008 Jalapore Police Station for the offence punishable under Section 66(1)(B), 65(E)(A), 81, 116(1)(B), of the Bombay Prohibition Act, 1949 and charge- sheet No.II 306/2008.
D. Pending hearing and final disposal of this petition. stay the further investigation and proceedings with respect to the FIR registered vide No. III-03/08 dated 02.01.2008 at Jalapore Police station for the offence punishable under Section 66(1)(B), 65(E)(A), 81,116(1)(B), of the Bombay Prohibition Act, 1949 qua the Petitioner."
2. The brief facts of the case of the applicant are epitomized as under :
One FIR is registered vide No. III-03/2008 at Jalapore Police Station District: Navsari dated 02.01.2008 for the offences punishable under Section No. 66(1)(B), 65(A)(E), 81, 116(2), of the Bombay Prohibition Act 1949, qua the Petitioner wherein allegedly the petitioner has been shown as absconding though the main accused has been already Page 2 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023 NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined acquitted long ago by the concerned Trial Court on 22.04.2010 and only with the malafide intention, prejudiced and misusing the process of law, the proceedings against the petitioner were kept pending by the respondents. The original complaint lodged by one Digvijaysinh Jagatsinh, unarmed police constable on 02.01.2008 with Jalalpore Police Station bearing CR. No.III- 03/2008 under section 66(1)B), 65(A) (E), 116(1)(2) of the Bombay Prohibition Act, 1949 against the main one accused Dayalbhai Chhaniyabhai Tandel. The name of the present petitioner has not been mentioned anywhere in the said complaint. However, the Petitioner has come to know about the said FIR only in the year 2017 i.e. after say Nine years from the said complaint being filed in the year 2008. Upon inquiring, the Petitioner, to his great shock, came Petitioner is being arrayed as an accused under the provision of Bombay Prohibition Act and is declared "wanted" in the case. The Petitioner holds a valid liquor license issued by the competent authority for the retail sale of foreign liquor/Indian made foreign liquor/country liquor in sealed bottles in the territory of Diu-Daman, which is a Union Territory of India.
And, the Petitioner runs his liquor business in his shop situate at Devka Road, Tin Batti, Nani Daman. Inspite of that after carrying out inquiry and investigation, chargesheet bearing No.III/306/2008 has been filed on 26.02.2008 wherein also, the name of the petitioner has not been mentioned. Page 3 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023
NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined Thereafter, the supplementary chargesheet is said to be filed on 17.08.2010.
Certain government and police authorities have been demanding huge extortion money from the petitioner and other like people who hold license for selling liquor, since past one/two years, these authorities have started demanding such money from all the people in the territory of Daman holding valid license to sell liquor. These authorities had also approached rather threatened the petitioner to pay a huge amount of money and failing to do so may lend up the petitioner in penal offence, the petitioner raised strong objections against such unfair practice and means and getting infuriated, these authorities have recourse to abusing the process of law. The name of the petitioner came to be arrayed in the FIR's which were registered at least 6 to 9 years back, and now the petitioner is being arrayed as absconding accused, and now the police authorities are behind the petitioner for only reason the petitioner denied to pay money.
A proceeding under the PML Act, 2002 has been initiated against the petitioner in the compliant bearing ECIR/48/AZO/2010 on 14.05.2010, under the Provisions of Money Laundering Act, 2002 by the Enforcement Directorate: Page 4 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023
NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined as the offences u/s 120B and 471 of the Indian Penal Code, 1860 are scheduled offences in terms of Section 2(1)(y) of PMLA Act, 2002 falling under paragraph-1 of Part-A of the Schedule to the PMLA Act, 2002 and subsequently investigation was initiated to identify the proceeds of crime. Under the aforesaid proceedings i.e. ECIR/48/AZO/2010, the concerned authority has also passed provisional attachment order No.5/2017 on 28.07.2017 which has been issued under Sub-Section (1) of Section 5 of the said Act. In the aforesaid order, the initially, the concerned authority provisionally attached the properties and bank accounts for period of 180 days. Upon the aforesaid order i.e. provisional Attachment Order No.5/2017 which is required to be confirmed as per the provision of the Act and therefore, the concerned Authority preferred original complaint bearing No.810/2017 before the Adjudicating Authority which is the appellate bench set up under the provisions of the said Act at New Delhi who accordingly adjudicated the aforesaid original complaint no.810/2017 and finally concluded that the aforesaid original complaint no.810/2017 is not sustainable and required to be dismissed and also not confirmed the provisional attachment order no.5/2017 dated 28.07.2017 by its order dated 19.01.2018.
Thereafter it was learnt by the present petitioner Page 5 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023 NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined that the concerned authorities have went into the Appeal before the aforesaid order dated 19.01.2018 passed by the Adjudicating Authority, New Delhi in the concerned Tribunal under the provisions of the Act, wherein the Learned Appellate Tribunal had granted interim stay in favor of the respondent authorities directing the respondent authorities for not to obstruct the petitioner in carrying out his business activities. Hence, the present application. 3.1 Heard learned advocates.
3.2 Rule. Learned APP waives service of notice of rule on behalf of the State.
4.1 Learned advocate for applicant has submitted that the learned trial Court has not properly appreciated the facts of the applicant. He has submitted that the learned trial Court has not applied its mind and solely relied upon the investigating officer and issued warrant under Section 70 as well as granted application under Section 82 of the Code of Criminal Procedure, 1973 against the applicant. He has submitted that the applicant was never served with any notice qua the proceedings in question. He has submitted that the applicant is residing with his family and living his routine life. He has submitted that he was never absconded. Page 6 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023
NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined He has submitted that applicant was running a registered licensed liquor shop in the Union territory i.e. Diu-Daman since long.
4.2 He has submitted that the alleged incident is of the year 2008 and the process is under Section 82 of the Code in the year 2017. He has submitted that the applicant is selling liquor in the territory of Daman and therefore, he cannot be held liable under the provisions of the Prohibition Act.
4.3 He has submitted that this Court has, time and again, observed that any person who is having liquor shop in the Union territory cannot be held liable under the provisions of the Prohibition Act.
4.4 He has submitted that the investigation officer, with ulterior motive, has dragged the applicant in the offence in question. He has submitted that the learned trial Court has no jurisdiction to issue such warrant in the present case in the aid of investigation. He has submitted that since the applicant did not succumb to the illicit demands of the authorities, he is dragged in the offence in question. 4.5 He has submitted that this application may be Page 7 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023 NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined allowed by quashing and setting aside the warrant issued under Section 70 as well as the proceedings under Section 82 of the Code of Criminal Procedure, 1973. 5.1 Learned APP for the State has strongly objected this application. He has submitted that applicant is involved in the commission of offence. He has submitted that his name is given by the co-accused. He has submitted that the applicant is absconded and did not cooperate the investigation and therefore, warrant under Section 70 was issued by the learned trial Court.
5.2 He has submitted that the applicant was the supplier of liquor and therefore, his presence is necessary to reach to the root of the offence in question. He has submitted that the muddamal - liquor was huge in quantity and therefore, it is necessary for the police authority to reach to the root of the offence. He has submitted that there are other complaints lodged against the applicant and the applicant was not available at the address shown in the complaint. He has submitted that the applicant is not responded the process of the learned trial Court and therefore, process under Section 82 was issued against him. 5.3 He has submitted that the leaned trial Court has Page 8 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023 NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined ordered to attach the property of the applicant and directed the Collector, Daman regarding the same. He has submitted that the applicant is a head-strong person and is not available and not cooperating the investigation and therefore, this application may be dismissed.
6.1 I have heard learned advocates for the respective parties. I have also considered the material on record. I have also perused the police papers available with the learned APP. I have gone through the earlier orders passed by this Court in this matter.
6.2 It is noted that this Court, on 11.9.2018, has stayed the execution of warrant issued under Section 70 and proclamation under Section 82 of the Code of Criminal Procedure, 1973.
6.3 Considering the entire facts of this case, the following points are considered by this Court for coming to the conclusion :
The offence, as alleged, is of the year 2008. The process is of the year 2017.
The complaint is under the Prohibition Act only. The applicant is having a registered licensed liquor shop Page 9 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023 NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined at Daman - Union territory.
The offence is occurred at Jalalpore - Navsari. The applicant is residing at Daman - Union territory with his family throughout.
The co-accused has given name of the applicant during the interrogation.
Neither any notice from the investigation officer nor any notice from the learned trial Court was served to the applicant.
There is no independent eye-witness to the incident though the incident has occurred in the public place. The main accused/s is acquitted by the learned competent Criminal Court.
6.4 It is noted that this Court has, time and again, decided the issue as to whether any person can be booked for the offence on the basis of the statement of co-accused or not and it is very clear from the observations of this Court time and again that on the basis of the statement of co-
accused, no one can be dragged into criminal compliant, keeping in mind the provisions of the Indian Evidence Act.
7. It is relevant to refer to the judgment of Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Page 10 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023 NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the Page 11 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023 NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined purview of sec.155(2) of the Code.
(3) 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.
(4) 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 sec.156(2) of the Code.
(5) 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.
(6) 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.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for Page 12 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023 NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8. It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under :
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:
[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]
24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'.
Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."
9. In addition, it should be noted that other accused Page 13 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023 NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined individuals whose names were included in the First Information Report (F.I.R.) and were apprehended at the scene of the incident have undergone trial proceedings in their respective cases. It is important to highlight that all of them have been acquitted. It is worth mentioning that the applicant's name was not initially included and was later added as an accused, primarily because he owns a wife shop in Daman. Taking this into consideration, it would not be fruitful to continue with the proceedings against the present applicant.
10. In view of above and under the circumstances, having regard to the role attributed to the applicant in the offence in question, no offence under the provisions of the Prohibition Act can be said to be constituted. Therefore, arraigning the applicant for the above offences under the Prohibition Act is totally misconceived and amounts to abuse of the process of law. This is, therefore, a fit case for exercise of inherent powers under Section 482 of the Code to prevent the abuse of the process of Court. This application therefore needs to be allowed and the warrant issued under Section 70 as well as the process under Section 82 of the Code of Criminal Procedure, 1973 are required to be quashed and set aside.
Page 14 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023
NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined
11. For the reasons recorded above, the following order is passed.
11.1 The present applications are allowed. 11.2 The warrant under Section 70 as well as the process under Section 82 of the Code of Criminal Procedure, 1973 issued by the learned trial Court at Navsari are hereby quashed and set aside in all the captioned applications. 11.3 The proceedings, if any, arising out of the impugned FIR being CR-III 03 of 2008 dated 2.1.2008 are hereby quashed and set aside qua the applicant only in Criminal Misc. Application No.17040 of 2018. 11.4 Furthermore, the proceedings, if any, arising out of the impugned FIR being CR-III 587 of 2009 dated 9.8.2009 are hereby quashed and set aside qua the applicant only in Criminal Misc. Application No.17050 of 2018. 11.5 Furthermore, the proceedings, if any, arising out of the impugned FIR being CR-III 564 of 2009 dated 2.8.2009 are hereby quashed and set aside qua the applicant only in Criminal Misc. Application No.17020 of 2018. Page 15 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023
NEUTRAL CITATION R/CR.MA/17040/2018 ORDER DATED: 11/09/2023 undefined 11.6 Rule is made absolute accordingly.
Direct service is permitted.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 16 of 16 Downloaded on : Mon Sep 18 20:32:52 IST 2023