2020 Supreme(Guj) 617

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A. P. Thaker, J.
Mukeshbhai Ramanbhai Vasava – Applicant
Versus
State Of Gujarat & Other – Respondents
R/Criminal Misc.Application No. 8781 Of 2020
Decided On : 14-08-2020

Point of Law:
If this is the law then the statement of co-accused during the investigation is neither prima facie evidence for the purpose of evidence whatsoever nor it can be said to be material on which co-accused can be proceeded with. Of course, if there would have been some other material on which revisionist could be proceeded with, the learned Special Judge could have been said to have been justified in rejecting the application but simply on the strength of the statement of the co-accused recorded by the investigating agency under Section 161 of the Cr.P.C., it cannot be said to be a material sufficient for proceeding against the revisionist.

Headnote:

Gujarat Prohibition Act - Sections 65(A)(A), 98(2) and 81 - Indian Penal Code - Section 188 - Criminal Procedure Code - Section 482 - Petitioner has filed present petition for quashing and setting aside FIR being for offences of Gujarat Prohibition Act Present petitioner as consequential proceedings thereof - According to him allegation against petitioner is that on during patrolling of area as per instruction given by Higher Officer there was checking of vehicles and it was found that accused was driving car from city area to area and on suspicion one police officer has stopped car which came to be driven by accused and upon inquiry made by police officer - It was found liquor in bags - It is submitted by advocate for petitioner that necessary was drawn at place of incident and eight bottles of liquor was found amounting which came to be seized by Investigating Officer and also seized the four wheeler vehicle.

Facts of the case:

Petitioner has vehemently submitted that the FIR being C.R. has been registered with Police Station for the offences under Sections 65(A)(A), 98(2) and 81 of the Gujarat Prohibition Act and Section 188 of the Indian Penal Code. According to him, the allegation against the petitioner is that on 30.05.2020, during the patrolling of the area, as per the instruction given by the Higher Officer, there was checking of the vehicles and it was found that accused No.1 was driving the car from city area to Ankodiya area and on suspicion, one police officer has stopped the car which came to be driven by accused No.1 and upon inquiry made by the police officer, it was found liquor in the bags. It is submitted by learned advocate for the petitioner that necessary panchnama was drawn at the place of incident and eight bottles of liquor was found amounting to Rs.2400/- which came to be seized by the Investigating Officer and also seized the four wheeler vehicle – 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. While relying upon the decision in the case of Suresh Chhotalal Verma Vs. State of Gujarat, (2001) 2 GLR 1029, he has urged to allow the present petition.

Findings of the court:

Now considering the materials placed on record admitted fact is that present petitioner has been arraigned as an accused only on basis of statement of co-accused - It is an admitted fact that except statement of co-accused there is no material against petitioner to connect him with alleged crime - It is also admitted by prosecution that there is no documentary evidence regarding call details between accused and present petitioner on mobile phone of petitioner which has been provided by co-accused to complainant which came to be reflected in FIR itself – Thus in present case continuation of proceedings against petitioner is nothing but abuse of process of law and it will be futile exercise – Therefore in view of aforesaid legal preposition and the materials placed on record considering peculiar facts of case this Court is of considered opinion that present petition qua present petitioner is required to be allowed.

Result: Petition allowed