Satish Chand Shivhare vs State Of Gujarat
2021 Latest Caselaw 1865 Guj

      R/SCR.A/9084/2020                                         ORDER



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
   R/SPECIAL CRIMINAL APPLICATION NO. 9084 of 2020
=====================================================
                SATISH CHAND SHIVHARE
                         Versus
                   STATE OF GUJARAT
=====================================================
Appearance:
MS VIDITA D JAYSWAL(6730) for the Applicant(s) No. 1
 for the Respondent(s) No. 2
MS MAITHILI MEHTA, ADDITIONAL PUBLIC PROSECUTOR(2)
for the Respondent(s) No. 1
=====================================================
 CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                          Date : 09/02/2021
                              ORAL ORDER

1. Ms. Vidita Jayswal, learned advocate for the

applicant tenders draft amendment. The same is

allowed. To be carried out forthwith.

2. Heard learned Advocate Ms. Vidita D. Jayswal on

behalf of the applicant and Ms. Maithili D. Mehta,

learned Additional Public Prosecutor on behalf of the

respondent­State.

3. By way of this application, the present

applicant prays for quashing of criminal complaint

registered with J.P. Road Police Station, Vadodara

City being FIR No.II­10/1998 dated 5th January, 1998

for offences punishable under Section 20(b)(ii) and

27 of the Narcotics Drugs & Psychotropic Substances

R/SCR.A/9084/2020 ORDER

Act, 1985 (NDPS) qua the applicant herein.

4. Learned Advocate Ms. Vidita Jayswal for the

applicant submits that pursuant to filing of the

complaint, charge­sheet had been filed by the

investigating officer in the year 1998 and whereas

the applicant herein had been shown as an absconding

accused as regards in the said charge­sheet. She

further draws the attention of this Court to the fact

that trial had been conducted against accused No.1

and whereas the Special Judge, Vadodara in N.D.P.S.

Case No.3 of 1998 had convicted the said accused for

offence punishable under Section 20(b)(ii) of the

Narcotic Drugs & Psychotropic Substances Act, 1985

and sentenced the said accused for ten years rigorous

imprisonment and fine of Rs.1,00,000/­ [Rupees One

Lac Only) and in default to undergo further simple

imprisonment for one year. She further submits that

the said judgment of the Special Court, Vadodara had

been set aside by the Division Bench of this Court in

Criminal Appeal No.94 of 2001 vide judgment and order

dated 27th September, 2002. It is also submitted by

learned Advocate Ms. Jayswal for the applicant that

the applicant is a permanent resident of Agra and

R/SCR.A/9084/2020 ORDER

whereas at the relevant point of time, the applicant

was managing a Hotel and as of now the applicant has

retired. She further submits that from 1998 till very

recently the applicant was not made aware about the

fact of the criminal complaint having been filed

against him in the year 1998 and the fact of the

trial as well as the appeal having been conducted

showing the applicant as an absconding accused. She

further submits that the applicant does not have any

antecedent of being involved in any criminal activity

of the like nature or for that matter any other

criminal activity. Considering the same, she submits

that the criminal complaint deserves to be quashed

and in the interregnum the present applicant may be

protected by this Court.

5. This application is strongly opposed by learned

Additional Public Prosecutor Ms. Maithili D. Mehta,

who has submitted that the applicant himself had

absconded for 22 long years and thereafter the

applicant is trying to take advantage of the same

period by submitting that the investigation has not

been carried out as regards the applicant. She

further points out to the fact that warrant under

R/SCR.A/9084/2020 ORDER

Section 70 of the Criminal Procedure Code had come to

be issued in the month of February, 1998 against the

applicant and whereas efforts have been made to

trace out the applicant, but the same was not

successful. Under such circumstances, she submits

that no indulgence deserves to be granted in favour

of the applicant.

6. Heard the learned Advocates for the parties.

Considering the submissions made by the learned

advocates, this Court is of the opinion that while

warrant under Section 70 of the Cr.P.C. may have been

issued against the present applicant but there is no

prima­facie material to show that any attempts has

been made to execute the warrant as regards the

present applicant. From the complaint, charge­sheet

as well as judgment of this Court is become evident

that the case against the applicant was that he had

supplied the contraband material to the co­accused in

whose case that trial had been conducted, and whereas

he has been acquitted by this Court.

7. Perusal of the judgment of this Court revels

that this Court had acquitted the said co­accused

R/SCR.A/9084/2020 ORDER

inter­alia giving him benefit of doubt in as much as

the fact of the contraband being recovered from the

house of the said accused had been doubted by this

Court. That since the fact of recovery from the co­

accused, being disputed and not been believed by this

Court resulting in his acquittal, the allegations of

the applicant having supplied also becomes highly

doubtful.

8. Considering the same and considering the fact

that for 22 years the applicant had not been

apprehended by the investigating agency and more

particularly, since the co­accused has been acquitted

by this Court in Appeal and further more the fact

that there are no antecedent against the applicant,

therefore, this matter deserves consideration. Issue

Rule. Learned APP waives service of rule on behalf of

the respondent­State.

9. Interim relief in terms of paragraph No.8(C) is

granted. Direct service through electronic mode is

permitted.

(NIKHIL S. KARIEL,J) Pallavi