Gujarat High Court

Maneesha Kiishore Jaishwal vs State Of Gujarat on 19 December, 2023

                                                                                             NEUTRAL CITATION




      R/SCR.A/2537/2014                                        ORDER DATED: 19/12/2023

                                                                                              undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2537 of 2014

==========================================================
                           MANEESHA KIISHORE JAISHWAL
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR KARTIK V PANDYA(2435) for the Applicant(s) No. 1
MR. SOAHAM JOSH, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1,2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 19/12/2023
                                   ORAL ORDER

1. The present petition is filed by the applicant seeking

prayer to quash and set aside F.I.R. being C.R. No. 13

of 2012, registered at Godhara Town Police Station,

Panchmahal, for the offences the provisions of Sections

65(B), 65 (A) (E), 81, 82, 82 and 116 (B) of the Bombay

Prohibition Act, 1949 ("the Prohibition Act") and all other

proceedings including charge sheet and Criminal Cases

registered pursuant thereto.

2. The subject matter of deliberation before the Division

Bench of this Court in Criminal Misc. Application

No.17790 of 2017 was whether a person holding a valid

license for consumption, selling, storage and

NEUTRAL CITATION

R/SCR.A/2537/2014 ORDER DATED: 19/12/2023

undefined

transportation etc. of liquor can be prohibited under the

provisions of the Prohibition Act, more particularly, when

such person carrying a business in accordance with the

terms and conditions of his license. In the aforesaid case,

it is an undisputed fact that the applicant was holding a

license for carrying on his business. He was involved in

the family business of sale of liquor and having wine

shop namely, Stone Bar & Restaurant situated at

Dabhel, Nani Daman, Daman & Diu (Union Territory).

3. In the aforesaid case, the Division Bench, after

examining the provisions of the Prohibition Act, has

passed the order dated 10.04.2019 and observed thus in

paragraph No.11:

"11. At the stage of investigation of the FIR, even the statement of a co-accused at times can be looked into by the Court. This Court in its judgment dated 11/04/2017 has in clear terms observed that at the end of the investigation, if chargesheet is filed and there is no legal evidence to connect the accused with the alleged offence, except the statement of the co-accused, then it is always open for the accused to challenge the charge-sheet before the appropriate forum in accordance with law. We may at this stage add that ultimately, it is for the Investigating Agency should

NEUTRAL CITATION

R/SCR.A/2537/2014 ORDER DATED: 19/12/2023

undefined

apply its mind so far as the position of law is concerned. If the Investigating Agency is convinced that except the statement of the co-accused, there is no other legal material to connect the accused with the crime, then it should exercise its discretion in filing appropriate report before the Competent Court rather than mechanically filing chargesheet even in such type of cases."

4. In the present case, the applicant is arraigned as

accused in the impugned F.I.R. only on the basis of the

statement of the co-accused. It is also the case that the

applicant is doing business of selling English made liquor

under the license issued by competent authority of

Madhya Pradesh bearing No.(DHR/F-10) since long and it

is renewed from time to time. Learned advocate

appearing for the applicant has submitted that impugned F.I.R. as well as consequential proceedings are required

to be quashed and set aside in view of the observations

made by the Division Bench, as aforesaid. He has placed

reliance on the judgment of this Court dated 23.07.2019

passed in Criminal Misc. Application No.20155 of 2014 in

the case of Valliullakhan Inayatkhan Pathan Vs. State of

Gujarat & Ors. He has also submitted that trial is

concluded and main accused is already acquitted by

learned trial Court.

NEUTRAL CITATION

R/SCR.A/2537/2014 ORDER DATED: 19/12/2023

undefined

5. Learned Additional Public Prosecutor, Mr. Dhawan

Jayswal has submitted that the investigation is over and

the same reveals that the applicant has violated the

terms of agreement of the license. He has submitted that

since the applicant is also having antecedents, the

impugned F.I.R. may not be quashed.

6. The Division Bench in paragraph No.11 of the

aforesaid order dated 10.04.2019 has observed that if at

the end of investigation, charge-sheet is filed and there

is no legal evidence to connect accused with the alleged

offence, except the statement of co-accused, then it is

always open for accused to challenge charge-sheet before appropriate forum in accordance with law. The Division

Bench has further observed that if Investigating Agency

is convinced that except statement of co-accused, there is

no other legal material/ evidence to connect accused with

crime, then it should exercise its discretion in filing

appropriate report before the competent authority rather

than mechanically filing charge-sheet even in such type

of case.

NEUTRAL CITATION

R/SCR.A/2537/2014 ORDER DATED: 19/12/2023

undefined

7. This Court has observed in the case of Valliullakhan

Inayatkhan Pathan (supra) in paragraph No.8, which

reads as under:

"47. A confession made to a Police Officer is clearly inadmissible. The statement relied on by respondent is dated 11.04.1996 and the appellant was arrested on 11.04.1996. This is pursuant to the F.I.R. registered on 10.04.1996. The statement dated 11.04.1996 is made to a Police Officer. This is clear from the statement as also letter dated 10.08.1996 (Annexure R/ ) produced by the respondent. It is clearly during the course of the investigation. Even if it does contain admissions by virtue of Section 162 and as interpreted by this Court in V.C.Shukla and others (supra), such admissions are clearly inadmissible.

48. If the statement made by the appellant on 11.04.1996 is inadmissible, then, there will only be the statement of the co-accused available to be considered in deciding whether the charge has to be framed against the appellant or not. It is here that the law laid down by this Court in Suresh Budharmal Kalani Alias Pappu Kalani (supra) becomes applicable.

49. We also notice the following statement in

NEUTRAL CITATION

R/SCR.A/2537/2014 ORDER DATED: 19/12/2023

undefined

judgment rendered by Bench of seven learned Judges in Haricharan urmi v. Stat of Bihar, AIR 1964 SC 1184:

"As a result of the provisions contained in S.30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered bythe Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S.30, the fact remains that it is not evidence as defined by S.3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Thus, the confession of a coaccused person cannot be treated as substantive evidence and can be

NEUTRAL CITATION

R/SCR.A/2537/2014 ORDER DATED: 19/12/2023

undefined

pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusions deducible from the said evidence. In criminal case where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt."

8. Unquestionably, in the present case, except the statement of the co-accused, no further material /

evidence indicates any complicity of the applicant in the

offence, either abating same or in any other manner and

merely, because the applicant has committed has violated

the terms of agreement of the license, would not make

him liable for offence under the Prohibition Act. It is

also submitted trial is concluded and main accused is

already acquitted by learned trial Court and hence,

impugned F.I.R. is liable to be quashed.

NEUTRAL CITATION

R/SCR.A/2537/2014 ORDER DATED: 19/12/2023

undefined