Vijaybhai Ravubhai Boricha @ Vijay ... vs State Of Gujarat
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Gujarat High Court

Vijaybhai Ravubhai Boricha @ Vijay ... vs State Of Gujarat on 27 January, 2025

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                             R/SCR.A/9185/2019                                    ORDER DATED: 27/01/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                            R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 9185 of 2019
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                                       VIJAYBHAI RAVUBHAI BORICHA @ VIJAY KATHI
                                                        Versus
                                               STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR PAWAN A BAROT(6455) for the Applicant(s) No. 1
                       NOTICE SERVED TO CONCERNED POLICE STATION HOWEVER,
                       SERVICE REPORT NOT FILED BY POLICE STATION for the Respondent(s)
                       No. 2
                       PUBLIC PROSECUTOR for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
                                          Date : 27/01/2025
                                           ORAL ORDER

1. The respondent No.2, although served with the notice of rule issued by this Court, has chosen not to remain present either in person or through an advocate and oppose this application.

2. By this application under section 482 of the Code of Criminal Procedure,1973, the applicant seeks to invoke the inherent powers of this Court praying for quashing of the first information report being Prohibition C.R. No.III-281 of 2019 registered before the Babra Police Station at Amreli for the offence punishable under sections 65(A)(E), 66(B), 81, 98(2) and 116(B) of the Prohibition Act.

3. The facts in brief leading to the filing of the present application are that the impugned FIR has been lodged by one Varjangbhai Rambhai Madiyasiya, Unarmed Lok-Rakshak, Buckle No.1660, inter alia, alleging therein that on 06.10.2019, when he along with other police personnel were on patrolling in their government vehicle, had received a secret information

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that on 06.10.2019, at around 21:00 hours, one person namely Harpal Pratapbhai Khachar, a resident of village Taivadar had kept a prohibited liquor in one Scorpio in his agricultural field, and as such, after following due procedure, they went to the said agricultural field and raided the place, where they found one Scorpio Car in the said agricultural field and one person was standing near the Scorpio car, who upon seeing the police, tried to ran away, however, the police chased and caught him. Thereafter, upon search being made in the said Scorpio Car, the prohibited Indian made foreign liquor worth Rs.77,960/- was found from the back side of the said Car, and as such, after drawing initial Panchnama in this regard, the said car and liquor came to be seized. There are in all total 153 bottles of Indian made Foreign liquor, amounting to Rs.77,960/- were found. Hence, the impugned FIR came to be lodged.

4. Thereafter, while the accused who was caught red- handed was in custody and upon he being interrogated, the name of the applicant-accused has been revealed by the said co-accused and that is how the applicant-accused has been implicated in the present offence.

5. Learned advocate Mr. Pawan Barot appearing for the applicant submits that it is a clear cut case of abuse of process of law. Learned advocate Mr. Barot has submitted that the impugned FIR came to be lodged against two persons and the applicant-accused has not been named in the FIR on the basis of the statement made by the co-accused, who was caught red-handed by the police along with the prohibited liquor as the supplier. He has also submitted that not a single piece of

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evidence has been collected by the investigating officer, connecting the applicant-accused with the present offence. Learned advocate Mr. Barot has further submitted that during the pendency of the present proceedings, trial qua other co- accused, who was caught red-handed by the police along with the prohibited liquor, was commenced, and ultimately, at the end of the trial, the accused No.1 who came to be arrested from the spot, has been acquitted by the trial court vide judgment and order dated 08.01.2024, and a copy of the order of acquittal has also been produced by the learned advocate Mr. Barot, which is ordered to be taken on record. Thus, when the co-accused who was caught red-handed by the police from the spot along with the prohibited liquor has already been acquitted by the trial court after appreciating all the materials available on record, on the basis of whose statement, the applicant-accused has been implicated in the present offence, asking the applicant-accused now to face the trial, would be nothing but a futile exercise. Learned advocate Mr. Barot has also submitted that even if the entire case of the first informant is accepted as true, none of the ingredients to constitute the offence as alleged are spelt out and, therefore, the continuation of the criminal proceedings against the applicant-accused would be nothing, but an abuse of the process of law.

6. On the other hand, this application has been vehemently opposed by Mr. Soham Joshi, the learned Additional Public Prosecutor appearing for the respondent - State of Gujarat. Learned APP Mr. Joshi has submitted that the Muddamal seized

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in the present case is prohibited in the State of Gujarat and is an offence. He has also submitted that specific role of the applicant-accused has come out during the course of investigation, and on the basis of the statement made by the co-accused that the applicant-accused was the supplier of the prohibited article, he has been arraigned as an accused. Learned APP Mr. Joshi has also produced the report submitted by Police Inspector G.R. Vasaiya and submitted that prima facie, sufficient material has been found against the applicant- accused to be implicated him as the accused, and after collecting more concrete evidence against the applicant- accused, charge-sheet would also be filed against him. He has submitted that not only that there are 10 antecedents against the applicant-accused of the similar nature. Merely the applicant-accused has been arrested on the basis of the statement of the co-accused, cannot be made a ground for quashing of the FIR as the trial would take its own course at the end of the trial. Under the circumstances, learned APP Mr. Joshi prays that, therefore, at this stage, the First Information Report should not be quashed and the trial should be permitted to proceed further. Hence, the present application deserved to be rejected.

7. 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 I should quash the complaint.

8. I am conscious of the restrictions to be exercised by the Court of Law while considering the petition under Section 482

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of the Code of Criminal Procedure. However, in the matter on hand, I find that it is a clear cut case of abuse of process of law. The records prima facie reveal that it is a prohibition case. It is true that trafficking or selling or purchasing of liquor is prohibited in the State of Gujarat and is an offence. However, considering the overall materials placed on record, it appears that the applicant-accused was not found along with the prohibited liquor from the spot. The applicant-accused has been arrested in the present offence on the basis of the statement of the co-accused, who was caught red-handed on the spot. Even the co-accused person who was caught red- handed and named in the FIR with his specific role, has already been acquitted by the trial court after a full-fledged trial, and as such, when the co-accused, having more graver role than that of the applicant-accused has already been acquitted by the trial court, now asking the applicant-accused to face the trial on the same set of materials and evidences, would be nothing but a futile exercise. Moreover, at the time of issuing rule, vide order dated 14.11.2019, a Coordinate Bench of this Court granted ad-interim relief thereby directing the Investigating Officer to carry out the investigation, but not to take any coercive steps against the applicant accused. Today, a pertinent query has been raised by this Court to the learned APP whether except the statement of the co-accused, there is any other material collected by the Investigating Officer against the applicant-accused connecting him with the commission of the crime, whereupon, the learned APP has very fairly conceded that except the statement of the co-accused, no other material is found out or collected by the investigating

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officer against the applicant-accused. Thus, considering the overall facts and circumstances of the present case, I am inclined to exercise extraordinary jurisdiction in favour of the applicant-accused.

9. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by the Supreme Court in the case of State of Haryana vs. Bhajan Lal, reported in (1992) Supp (1) SCC 335. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and is maliciously instituted with an ulterior motive, the high court shall not hesitate in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure to quash the proceeding. Under category seven (7) as enumerated in Bhajan Lal (supra), it is held thus, "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". There cannot be any dispute that the inherent power given to the High Court under Section 482 of the Code of Criminal Procedure is with a purpose and object of advancement of justice. Similar observations are also made by the Apex Court in the case of Vineet Kumar and Others vs. The State of Uttar Pradesh and Another, reported in (2017) 13 SCC 369. The facts and circumstances of this case clearly attract category No.7 as

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quoted supra.

10. In the result, the application succeeds and is allowed. The first information report being Prohibition C.R. No.III-281 of 2019 registered before the Babra Police Station at Amreli is hereby ordered to be quashed qua the applicant. All consequential proceedings arising from the same also stands terminated. Rule is made absolute.

Direct service is permitted.

(DIVYESH A. JOSHI,J)

VAHID