Gujarat High Court

Manubhai Sitaram Patel vs State Of Gujarat on 15 June, 2023

Bench: Sandeep N. Bhatt

     R/CR.MA/6374/2017                             JUDGMENT DATED: 15/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 6374 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                          MANUBHAI SITARAM PATEL
                                   Versus
                         STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR TEJAS M BAROT(2964) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 15/06/2023

                               ORAL JUDGMENT

1. This application is filed under the provisions of

Section 482 of the Code of Criminal Procedure, 1973

(`the Code' for short) praying to quash and set aside the

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FIR being III-C.R.No.21 of 2017 registered with

Chanasma Police Station for the offences punishable

under Sections 66(b) and 65(e) of the Gujarat Prohibition

Act.

2. The brief facts leading to filing of this

application are such that the applicant is an agriculturist

and sells agricultural produce grown by him and he is

the co-owner of shop no.8 and 14-A in City Plaza,

Chanasma and therefore is a Rajavi sports club on the

upper floor with which the applicant is not connected. It

is submitted that the applicant uses the shop no.8 for

storing and dealing with his agricultural produce and

uses Shop no.14A as office. It is submitted that the

officers of Chanasma police station conducted raid operations in the club premises on 24.2.2017, however, as

nothing incriminating was found, but with an intention

to lodge a prosecution anyhow, they broke open the locks

of shop no.8 of the applicant, took away the cash kept

in the said shop, also showed a 375 ml bottle containing

125 ml liquor as recovery from shop no.14-A and tried to

aggravate the offence of gambling against the office

bearers of the club, by showing the possession of liquor

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without any permit. It is this complaint which is filed

for possessing liquor without any permit, is sought to be

quashed in this application.

3. Heard learned advocate Mr.Tejas Barot for the

applicant, learned APP Mr.Jayswal for the respondents.

4. Learned advocate Mr.Barot for the applicant

has submitted that though he is having valid permit

which is issued by the Superintendent, Prohibition and

Excise, Patan which is valid, FIR is registered under the

offences under Sections 66B and 65E of the Gujarat

Prohibition Act. He has submitted that such provisions of

the said Act cannot be applicable when the present

applicant has permit. He has drawn my attention towards the FIR whereby it is shown that one bottle of

125 ml liquor worth Rs.100/- is found during the visit of

the shop of the present applicant by the police. He has,

therefore, submitted that this is nothing but non

application of mind by filing the present FIR. That in

FIR, it is mentioned that the police inspector has asked

about the permit of the present applicant and the

applicant has not produced the same and therefore the

FIR is filed. It is submitted that be that as it may,

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such complaint should not be proceeded further as he

has a valid permit and the provisions of the Gujarat

Prohibition Act invoked in the FIR are not prima faice

made out.

5. He placed in view of the judgment of State of

Haryana V/s Bhajan Lal reported in AIR 1992 SC 604 and prayed to allow the present application and quash

the impugned FIR.

6. Learned APP Mr.Jayswal submitted that, on

bare reading of FIR, when the applicant failed to

produce the permit at the relevant point of time, the

police authority has no option but to register the FIR.

However, when the Court has inquired whether applicant is having valid permit, learned APP has submitted that

the applicant has it and therefore considering the

averments made in the FIR, this Court may pass

appropriate order.

7. I have considered the rival submissions made

by the parties and also considered the FIR and permit

which is produced on record. It transpires that the

applicant named as Patel Manubhai Sitaram is having

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permit from 19.11.2016 to 31.10.2017 which is issued by

the Superintendent of Prohibition and Excise, Patan and

the liquor was found from his private shop which cannot

be said to be a public place.

8. Otherwise also, from reading of the FIR, it

transpires that somehow the concerned officer has

recorded that the applicant has not produced the permit

when it was inquired. Considering the fact that the

applicant has produced permit which is part of the

record of the applicant, and considering the fact that the

bottle of liquor is found from the shop of the present

applicant, which cannot be considered as public place, it

cannot be said that the offences as mentioned in the

FIR are made out. Therefore, no fruitful purpose will be served to continue carry with the proceedings, which is

nothing but abuse of process of law.

9. Further, it will also be fruitful to mention 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 Supreme Court has observed thus -

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"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

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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.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

10. 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]

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[(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."

11. In view of above settled position of law and

after considering the facts as alleged in the FIR and

circumstances of the present case, it transpires that

continuation of further proceedings pursuant to the said

FIR will cause greater hardships to the petitioners and

no fruitful purpose would be served if such further

proceedings are allowed to be continued. The Court must

ensure that criminal prosecution is not used as

instrument of harassment or for seeking private vendetta

or with ulterior motive to pressurise accused or to settle

the score.

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