Ravi Shyamlal Dhobi vs State Of Gujarat

Dr. A. P. Thaker, J

Heard Mr.Nisarg Jain, learned advocate for the petitioner and Ms.Maithili Mehta, learned Additional Public Prosecutor for the respondent â€" State

through Video Conferencing.

RULE. Ms.Mehta, learned Additional Public Prosecutor waives service of notice of rule for respondent â€" State. With the consent of learned

advocates for both the sides, rule is fixed forthwith.

The petitioner has filed the present petition under Section 482 of the Criminal Procedure Code for quashing and setting aside the FIR being

C.R.No.11196027200072 of 2020 registered with Karelibaug Police Station, District: Vadodara for the offences under Sections 65(E), 98(2) and 81 of

the Gujarat Prohibition Act qua the present petitioner as well as all consequential proceedings thereof.

Mr.Jain, learned advocate for the petitioner has vehemently submitted that the FIR being C.R.No.11196027200072 of 2020 has been registered with

Karelibaug Police Station, District: Vadodara for the offences under Sections 65(E), 98(2) and 81 of the Gujarat Prohibition Act. According to him, the

allegation against the petitioner is that the co-accused of the alleged crime was found with the possession of the contraband liquor in the vehicle and,

therefore, the complaint came to be registered. It is submitted by the learned advocate for the petitioner that looking to the FIR, no allegations are

made against the present petitioner which can constitute the offence of Gujarat Prohibition Act qua the present petitioner. He has further submitted

that the petitioner has arraigned as an accused solely on the basis of the statement of the co- accused and on the ground of presumption and unreliable

evidence. He has submitted that the petitioner is not concerned with the vehicle involved in the alleged offence.

4.1 Mr.Jain, learned advocate for the petitioner has submitted the present petitioner has been shown as an accused only on the basis of the statement

of the co- accused and the same is inadmissible under Section 25 of the Indian Evidence Act. He has submitted that the presence of the petitioner at

the place of the incident is not established and except the statement of the co-accused, there was no material against the present petitioner for

prosecuting him. According to him, there is no evidence against the present petitioner for the alleged offence and he has been implicated only from the

statement of the co- accused. He has urged to allow the present petition and to quash and set aside the impugned FIR.

Per contra, Ms.Mehta, learned Additional Public Prosecutor for the respondent â€" State has submitted that considering the materials placed on

record, the present petition may not be entertained and the same may be dismissed.

It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the

complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are

likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers

are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The

Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court

would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice.

The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the

averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do

not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be

quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be

examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal

ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.

A Court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary

for the offence.

It is pertinent to note that the legal bar under Section 25 of the Indian Evidence Act that a statement of a co- accused is not admissible in evidence

and, therefore, cannot be relied on, cannot be construed to mean that such statement cannot be even considered or treated as a clue or a piece of

information to initiate and conduct inquiry / investigation or to direct the investigation / inquiry in a particular direction. Such a statement can be treated

as a clue or piece of information and not evidence for initiating and conducting investigation / inquiry so as to find out as to whether there is any

independent, satisfactory and reliable material which may support or justify or provide reason for continuing inquiry / investigation for initiating further

investigation. Thus, the rule is well settled that the person facing charge of any offence can be proceeded with if there is other material available on

record in addition to the statement of the co-accused. The statement of the co- accused can be used as clue for implicating the person concerned as

an accused. However, at the same time, there must be some other materials on record.

The Investigating Officer has stated in para-6 of the affidavit which reads as under:-

“6. I say and submit that English Liquor in terms of 1104 bottles worth Rs.1,10,400/- was found from the vehicle bearing registration number GJ-

06-AX-9402 was found when intercepted and Jayant Kahar was the driver of the said vehicle. And it was found that the said good was to be

delivered to the present applicant and the same was sent by the Co-accused Dilip Gopichand Parmar. The said fact that the liquor was to be delivered

to the present applicant can be born out from the statement of Dilip Gopichand Parmar and Jayant Kahar which are annexed hereto and marked as

Annexure RI.â€​

Now, considering the materials placed on record, the admitted fact is that the present petitioner has been arraigned as an accused only on the basis

of the statement of the co-accused. On perusal of the affidavit of the Investigating Officer, it appears that except, the statement of the co-accused,

there is no material against the petitioner to connect him with the alleged crime in receiving the liquor in question. Thus, in the present case, the

continuation of the proceedings against the petitioner is nothing but abuse of process of law and it will be futile exercise. Therefore, in view of the

aforesaid legal preposition and the materials placed on record, considering the peculiar facts of the case, this Court is of the considered opinion that the

present petition qua the present petitioner is required to be allowed.

In the result, the petition is allowed. The FIR being C.R.No.11196027200072 of 2020 registered with Karelibaug Police Station, District: Vadodara

for the offences under Sections 65(E), 98(2) and 81 of the Gujarat Prohibition Act as well as all consequential proceedings thereof are hereby quashed

and set aside qua the present petitioner. The criminal proceedings may continue so far as other accused is concerned. Rule is made absolute to the

aforesaid extent.

Registry is directed to intimate about this order to the concerned authorities through fax, email and/or any other suitable electronic mode.