Hathisinh Bhagvanbhai Mori vs State Of Gujarat
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Gujarat High Court

Hathisinh Bhagvanbhai Mori vs State Of Gujarat on 21 April, 2025

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                              R/SCR.A/10928/2019                             ORDER DATED: 21/04/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10928 of 2019

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                                                   HATHISINH BHAGVANBHAI MORI
                                                              Versus
                                                     STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
                       MR. MANAN MAHETA, APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                         Date : 21/04/2025

                                                          ORAL ORDER

1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant has prayed to quash and set aside the FIR being C.R. No. III-468 of 2019 registered registered with Vartej Police Station, Bhavnagar for the offences under Sections 65(E), 81, 83, 98(2), 99 of the Prohibition Act and all the consequential proceedings arising therefrom.

BRIEF FACTS OF THE CASE:-

2. As per the prosecution case, the first informant, upon receiving information from higher authorities, conducted a raid at Siddhivinayak Hotel and Party Plot, allegedly owned by the petitioner, where prohibited liquor worth Rs.3,600/- was found in possession of one Kishorebhai Shyamjibhai Chauhan, the caretaker of the premises.

2.1. The petitioner, however, claims to be innocent and alleges

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that the impugned FIR is a product of political vendetta. It is submitted that the petitioner's brother, Dansangbhai Mori, is the former Sarpanch of Budhel Gram Panchayat, and the petitioner's nephew, Bhavanibhai Mori, is the present Sarpanch. It is further submitted that Komalben Sanjaybhai Sachpara--the first informant in the FIR--had contested elections against the petitioner's family members, and a series of FIRs have allegedly been filed by her supporters against the petitioner and his relatives as an act of political vengeance.

2.2. It is, therefore, the petitioner's case that the impugned FIR is actuated by malice and registered with a mala fide intention, with wholly false and baseless allegations. Hence, the present petition is filed seeking appropriate relief from this Hon'ble Court.

SUBMISSIONS OF THE PETITIONER:-

3. Seeking quashment of the FIR, learned Senior Counsel Mr. Sudhir Nanavati, assisted by learned Counsel Mr. P. P. Majmudar for the petitioner, having adverted to the contents of the FIR, submitted that the petitioner, being the erstwhile owner of Siddhivinayak Hotel and Party Plot--which has remained non-operational for a considerable period--cannot be construed to be in conscious possession of the Indian Made Foreign Liquor allegedly discovered from the premises.

3.1. It was further contended that the petitioner has been falsely implicated in the matter owing to political vendetta. The contraband in question was allegedly recovered from an open area within the compound of the Siddhivinayak Hotel and Party Plot, which,

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according to learned Senior Counsel, negates any inference of conscious possession on the part of the petitioner.

3.2. Learned Senior Counsel placed reliance on the decision of the Hon'ble Apex Court in Patel Jethabhai Chatur v. State of Gujarat, reported in (1976) 4 SCC 522, with particular emphasis on paragraph 6 thereof. It was submitted that, as held by the Hon'ble Supreme Court, mere recovery of Indian Made Foreign Liquor from a particular premises, in the absence of knowledge or conscious awareness on the part of the occupant, does not ipso facto establish that the said person was in "conscious possession" of the contraband. Accordingly, if the liquor is stored or found at the premises without the knowledge of the person concerned, such person cannot be held liable for possession under the relevant penal provisions.

3.3. In view of the above, the learned Senior Counsel prays that the impugned F.I.R. and all consequential proceedings arising therefrom may kindly be quashed in the interest of justice.

SUBMISSIONS OF RESPONDENT:-

4. The learned Additional Public Prosecutor appearing for the respondent-State respectfully opposes the present petition and submits that the FIR being C.R. No. III-468 of 2019, registered at Vartej Police Station, Bhavnagar, discloses a prima facie cognizable offence under Sections 65(E), 81, 83, 98(2), and 99 of the Gujarat Prohibition Act.

4.1. It is submitted that as per the prosecution case, a raid was conducted based on credible information received from the superior

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officers, and during the said raid, prohibited liquor was found on the premises of Siddhivinayak Hotel and Party Plot, allegedly owned by the present petitioner. The seizure was made from the caretaker of the premises, one Kishorebhai Shyamjibhai Chauhan, and the necessary panchnama was duly drawn on the spot. The allegations are not bald or baseless but are supported by material collected during the course of preliminary investigation and further prayed to dismiss the present petition.

4.2. Upon above submissions, it is submitted to dismiss the petition.

FINDINGS OF THE COURT:-

5. I have heard learned advocates for the parties and considered record.

5.1. The powers conferred upon the High Courts under Section 482 of the Code of Criminal Procedure are of a very wide amplitude, and the very plenitude of such powers demands great caution in their exercise. The Court must ensure that the invocation of such jurisdiction is founded upon sound principles. Undoubtedly, no rigid or inflexible formula can be prescribed governing the cases in which the High Court may exercise its extraordinary inherent jurisdiction.

5.2. In Som Mittal v. Government of Karnataka, 2008 3 SCC 753, the Hon'ble Supreme Court held that the exercise of powers under Section 482 of the Code of Criminal Procedure is not the rule, but an exception. Such powers must be exercised sparingly, with great circumspection, and only in the rarest of rare cases. However, it is

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important to clarify that the expression "rarest of rare cases" should not be construed in the same context as the parameters applied for imposing the death penalty, which are far more stringent and specific.

5.3. In State of Karnataka vs L. Muniswamy, AIR 977 SC 1489 it was observed power under Section 482 of the Cr.P.C. should be exercised sparingly and with great caution, particularly in cases where continuing the proceedings would result in an injustice or misuse of the judicial process. The Court further clarified that such power is not to be invoked merely because an accused person feels aggrieved, but only in exceptional cases where there is clear evidence of abuse or mala fide intentions. Reference may also be made to the decision of the Hon'ble Supreme Court in Central Bureau of Investigation v. A. Ravishankar, reported in (2009) 6 SCC 351, wherein the Hon'ble Apex Court succinctly summarized the legal position as under:-

"Inherent powers of High Court under section 482 Cr PC are meant 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 court. These inherent powers can be exercised in the following category of cases: (1) to give effect to an order under the Code; (il) to prevent abuse of the process of court; and (lil) to otherwise secure the ends of justice. Extraordinary power under section 482 Cr PC should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the power to prevent injustice and secure ends of justice. India has largely inherited provisions of inherent powers from English jurisprudence, and therefore principles decided by the English courts are of relevance. Crown Court has inherent power to protect its process from abuse. The English courts have also used inherent power to achieve the same objective.

Exercise of inherent powers would entirely depend on the facts and circumstances of each case. The object of

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incorporating inherent powers in Cr PC is to prevent abuse of process of court or to secure ends of justice. Both English and the Indian courts have consistently taken the view that inherent powers can be exercised in those exceptional cases where the allegations made in FIR or the complaint, even if are taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused."

5.4. Now, adverting to the facts of the case, it is the case of the petitioner that although he is the owner of Siddhivinayak Hotel and Party Plot--within the compound of which Indian Made Foreign Liquor (IMFL) was discovered--he was not in conscious possession thereof and, therefore, cannot be held liable for the alleged offence narrated in the FIR.

5.5. Upon perusal of the FIR, it becomes manifest that the Local Crime Branch (LCB) received confidential information indicating that Indian Made Foreign Liquor was being stored within the compound of Siddhivinayak Hotel and Party Plot for the purpose of illicit distribution. Acting upon the said information, the police conducted a raid at the premises in the presence of panchas and allegedly recovered IMFL from the open land situated within the compound belonging to and owned by the petitioner. This fact emerges clearly upon a bare reading of the FIR.

5.6. The petitioner's primary line of defence is that he was not in conscious possession of the contraband, as he was not personally found in physical custody of the liquor at the time of the raid. However, such a contention amounts to a factual defence which may be evaluated during the course of trial. At this preliminary stage, while adjudicating a prayer for quashment of the FIR under Section 482 of the CrPC, it is an admitted position that the

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contraband was recovered from the premises owned by the petitioner.

5.7. In the absence of any material demonstrating that the petitioner had no knowledge or control over the said premises, it would be premature to hold that the petitioner was not in conscious possession of the liquor merely because he was not physically present at the time of recovery. Accordingly, the petitioner's plea appears to be a matter of defence, which cannot be adjudicated conclusively in proceedings seeking quashment of the FIR.

5.8. Furthermore, the plea of political vendetta, as raised by the petitioner, is a matter of defence and cannot be adjudicated at the stage of quashing. The investigation is at a nascent stage, and the police must be permitted to complete the probe and bring the truth before the court of law. Whether or not the petitioner had knowledge or control over the premises and whether there exists a mens rea are questions of fact that can only be determined during trial based on evidence.

5.9. Settled position of law states that disputed question of facts needs trial, cannot be addressed and decided in proceeding under Section 482 of the Cr.PC.

5.10. The Hon'ble Supreme Court in the landmark judgment of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, (2021) 6 SCC 116, has categorically held that while exercising jurisdiction under Section 482 Cr.P.C. or under Article 226 of the Constitution, the courts should not embark upon an enquiry as to the reliability or genuineness of the allegations in the FIR. The Court has

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emphasized that:-

"When a prayer for quashing the FIR is made, and if the FIR discloses the commission of a cognizable offence, the court should not normally interfere and quash the same. The power under Section 482 Cr.P.C. is to be exercised sparingly and with circumspection. Interference at the threshold should be avoided unless the complaint does not disclose any offence or is frivolous or vexatious on the face of it."

5.11. At initial stage, where cognizable offence is disclosed in FIR, whether investigation can be thwart by exercising inherent power under section 482 of Cr.P.C., the Hon'ble Apex Court in the case of Skoda Auto Volkswagen India Private Ltd. v/ s. State of Uttar Pradesh [2020 SCC Online SC 958], in para 41 has held as under :-

"41. It is needless to point out that ever since the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18, the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta v. State of Gujarat (2001) 7 SCC 659 this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere."

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5.12. Applying the said ratio to the present case, it is evident that the FIR discloses the commission of cognizable offences and cannot be said to be manifestly false on its face. The presence of liquor on the premises and the ownership aspect, among other facts, require thorough investigation and cannot be scuttled at this preliminary stage by invoking the extraordinary jurisdiction of this Hon'ble Court.

ORDER:-

6. In light of the above discussion and the facts presented, this Court finds no merit in the present petition. The petition is accordingly DISMISSED. The proceedings in the FIR/chargesheets are allowed to continue in accordance with law. No further orders are required to be passed. The petition stands disposed of.

(J. C. DOSHI,J) MANISH MISHRA