Manubhai Najbhai Dhandhal vs State Of Gujarat
2022 Latest Caselaw 5210 Guj

    R/CR.MA/5553/2020                             JUDGMENT DATED: 16/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 5553 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        MANUBHAI NAJBHAI DHANDHAL
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR AMRISH S BAROT(3551) for the Applicant(s) No. 1
MR PAWAN A BAROT(6455) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. M. D. MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 16/06/2022

                             ORAL JUDGMENT

1. With the consent of learned advocates appearing for the parties, the present application is taken up for final disposal today.

R/CR.MA/5553/2020 JUDGMENT DATED: 16/06/2022

2. Rule. Learned APP Ms. M. D. Mehta waives service of notice of rule for and on behalf of the respondent - State.

3. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (for short, the 'Code'), the applicant has prayed for quashing and setting aside the FIR being C.R.No. 11190001200093 of 2020 registered with Barwala Police Station, District:- Botad for the offence punishable under Sections 65 (E), 81 and 116 of the Prohibition Act.

4. Heard learned advocate Mr. Pawan A. Barot appearing for the petitioner and learned APP Ms. M. D. Mehta for the respondent - State.

5. It is the case of the petitioner that the petitioner is an agriculturist and that a complaint was filed by one S.Y. Zala, PSI, Barwala Police Station alleging that the complainant received a secret information that stock of English liquor is stored in a fallow land in the babool tree next to the field of the Gorabhai Valabhai Bharvad in the outskirt of village Chachriya. According to the information, the aforesaid stock of the English liquor was stored by Pruthavi @ Muno Pravinbhai Khachar and Manubhai Najbhai Dhadhal. When the raid was carried out at the place mentioned, the police seized total 660 bottles of Indian made Foreign liquor amounting to Rs.1,98,000/- and registered the complaint under

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sections 65 (E), 81 and 116 of the Prohibition Act. The petitioner was not caught from the place of offence. It is alleged in the petition that the petitioner has been falsely implicated in the entire offence and there is nothing on record to indicate that the present applicant was involved in the alleged crime.

6. Learned advocate Mr. Barot submitted that the present complainant was implicated on the basis of the secret information which was without any basis. Ultimately, pursuant to the registration of FIR, charge-sheet was also filed and hence, the present applicant was named in the charge-sheet.

7. Learned advocate Mr. Barot has by way of additional affidavit submitted before this Court which is already on record that in respect of the co-accused viz. Pruthavirajbhai @ Munnabhai Pravanibhai Khachar, trial was commenced and ultimately at the end of the trial, he has been acquitted by the JMFC, Barwala vide order dated 20.05.2021 in Criminal Case No. 7 of 2021.

8. By pointing out at the aforesaid judgment, acquiting the co-

accused, learned advocate Mr. Barot placed the reliance upon the decision of this Court dated 02.03.2017 in Special Criminal Application (Quashing) No. 489 of 2015 as well as decision dated 07.07.2016 in Criminal Misc. Application No. 10722 of 2016.

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9. By relying upon the two judgments, it was contended by the learned advocate Mr. Barot that when the co-accused has been acquitted and there is no evidence against the present applicant, except for the secret information, it can be said that there is no evidence as such against the present applicant and therefore, asking the present applicant to face the trial would be a futile exercise and therefore, he requests that the complaint qua the present applicant also may be quashed and set aside.

10. Learned APP Ms. M. D. Mehta appearing for the respondent - State though vehemently opposed the petition by stating that the present applicant was arrested and the case was registered on the basis of secret information received in respect of the liquor stored by the present applicant. She could not point out from the charge-sheet papers any evidence against the present applicant, except for the statement of co- accused.

11. She also could not point out any distinguishing facts which would compel this Court to take a different view than the view taken by Coordinate Benches in the case of Santoshsinh Narendrasinh Chauhan V/s State of Gujarat in Special Criminal Application (Quashing) No. 489 of 2015 decided on 02.03.2017 in the case of Pankajbhai Chetabhai Rabari V/s State of Gujarat & Ors. and Criminal Misc. Application No. 10722 of 2016 decided on 07.07.2016, upon which reliance was placed by learned advocate Mr. Barot.

R/CR.MA/5553/2020 JUDGMENT DATED: 16/06/2022

12. I have heard the learned advocates for the respective parties. I have considered the submissions advanced by learned advocates for the respective parties and also gone through the decisions relied upon by the learned advocate Mr. Barot for the applicant. While allowing the Special Criminal Application (Quashing) No. 489 of 2015 on 02.03.2017, the Coordinate Bench of this Court has observed as under:-

"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 the FIR should be quashed.

Ms.Thakore, the learned APP, after taking instructions from the Investigating Officer, submitted that except the statement of the co- accused, there is no other legal evidence to connect the applicant herein with the alleged offence. She further confirms the acquittal of the co-accused by the trial Court.

I am afraid, antecedents would not constitute legal evidence to prosecute a person. The statement of the coaccused would also not constitute legal evidence to put the accused to trial. In the aforesaid context, I may refer to a decision of the Supreme Court in the case of Satish Mehra v. State (NCT of Delhi) and another, (2012)13 SCC

614. I may quote the observations made in paragraph 21 thus :

"A criminal trial cannot be allowed to assume the character of fishing and roving enquiry. It would not be permissible in law to permit a prosecution to linger, limp and continue on the basis of a mere hope and expectation that in the trial some material may be found to implicate the accused. Such a course of action is not contemplated in the system of criminal jurisprudence that has been evolved by the courts over the years. A criminal trial, on the contrary, is contemplated only on definite allegations, prima facie, establishing the commission of an offence by the accused which fact has to be proved by leading unimpeachable and acceptable evidence in the course of the trial against the accused. We are, therefore, of the view that the criminal proceeding in the present form and on the allegations levelled is clearly not maintainable against either of the accused - appellant G.K. Bhat and R.K. Arora."

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I am left with no other option but to quash the First Information Report.

In the result, this application is allowed. The First Information Report being Prohibition C.R.No.5265 of 2014 registered at the Odhav Police Station, Ahmedabad, is hereby ordered to be quashed. Rule made absolute. Direct service is permitted.

13. Similarly while allowing Criminal Misc. Application No. 10722 of 2016, the Coordinate Bench of this Court has observed as under:-

"3. Learned advocate appearing for the applicants has urged that except the statement of the co-accused there is no other evidence. This has not been disputed by the prosecution. The communication addressed to the Office of the Public Prosecutor dated 7.7.2016, gives details as to how the present petitioner, according to the co-accused is involved. As there is no other legally admissible evidence and the statement of the coaccused alone is relied upon for the purpose of prosecution, the request is required to be acceded to.

4. This Court in the case of Ramnani Hareshkumar Ramchandra vs. State of Gujarat and another passed in Criminal Miscellaneous Application No.21115 of 2015 held and observed as under:-

"6.Heard both the sides at length.The Honble Apex Court in NATHU VS. STATE OF U.P (Supra) has held that confessions of co-accused are not evidence as defined in Section 3 and no conviction can be founded, thereon, but, if,there was other evidence on which a conviction can be based, they can be referred to as leading assurance to that conclusion and for fortifying it. Similarly, in UNION OF INDIA VS. BAL MUKUND AND OTHERS (Supra), the Apex Court observed and held that conviction should not be based merely on the basis of a statement without any independent corroboration, especially when retracted. The Apex Court, further, held that confessional statement of co-accused cannot be used as substantive evidence against other co-accused in the absence of independent corroboration. In SMT. LAXMI CHAKRABORTY AND ETC. VS. STATE OF TRIPURA (Supra), also similar view is taken by the Apex Court holding that the statement of co-accused, in absence of independent evidence, cannot be treated as substantive evidence to hold such other co-accused guilty of alleged offences.

7.In the case on hand,admittedly, there is no evidence against the present petitioner, except, the statement of the co-accused.

Therefore,in view of the ratio laid down by the Apex Court in the aforesaid decisions, the impugned complaint cannot be permitted

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to be continued against the present petitioner and same deserves to be quashed.

8.In the result, this application is allowed and the impugned complaint is QUASHED qua the present petitioner only with all consequential proceedings, whereas, against rest of the accused persons,it shall CONTINUE. Papers be returned to the learned APP for her onward communication."

5. In view of the aforesaid decision, the complainant being C.R.No.III-49 of 2015 registered with Dolvan police station at Tapi is quashed and set aside qua the applicant only. All consequential proceedings arising from the said complaint are also quashed qua the applicant.

6. Application is allowed in above terms. Disposed of accordingly.

14. Considering the fact that in the instant case also co-accused has already been acquitted and there is no material against the present applicant except for the statement of co- accused as stated by learned APP Ms. Mehta, considering the fact that the decisions cited by learned advocate Mr. Pawan Barot are also delivered and FIR quashed in those respective petitions taking into consideration that the co-accused was acquitted and the complaint against the applicant in those cases also registered on the basis of the statement of co- accused, the facts of the present case being similar to those facts, the ratio of both the decisions would applied in case on hand as well. Therefore, this Court is of the view that the FIR qua the present applicant is also required to be quashed and set aside.

15. Resultantly, this application is allowed. The impugned FIR being C.R.No. 11190001200093 of 2020 registered with Barwala Police Station, District:- Botad is hereby quashed and set aside.

R/CR.MA/5553/2020 JUDGMENT DATED: 16/06/2022

16. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(NIRZAR S. DESAI,J) VARSHA DESAI