Pramod Rama Tandel vs State Of Gujarat
2023 Latest Caselaw 6673 Guj

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     R/CR.MA/17040/2018                                        ORDER DATED: 11/09/2023

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             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
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                              PRAMOD RAMA TANDEL
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
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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
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 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

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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

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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.

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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:

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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

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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.

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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

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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

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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

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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

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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

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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.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

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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

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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.

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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.

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11.6 Rule is made absolute accordingly.

Direct service is permitted.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA