ORDER :

1. The present application has been preferred praying to quash and set aside the order dated 28.03.2023 passed by the Chief Judicial Magistrate, Ahmedabad (Rural), dismissing the discharge application filed by the petitioner vide Exhibit-5 in Criminal Case No. 368 of 2023 in connection with the offence instituted being FIR No. 11192030210498 of 2021 under sections 65A, 65(e), 116B, 81, 83 and 98(2) of the Prohibition Act, with Kanbha Police Station, Ahmedabad (Rural).

2. It is alleged in the FIR that on secrete information of Indian Made Foreign Liquor (IMFL), brought and stored unlawfully in Rudra Industrial Park, Shed No. G/58 being a godown situated in the sim of Bakrol Bujrang village, a raid was conducted and accused nos.1 to 3 were caught red handed along with the muddamal IMFL to the tune of Rs.72,89,850/-. It is alleged in the FIR that accused nos. 1, 2, 3, 9, 10, 11, 12 and 13 in collusion with each other procured IMFL for the purpose of sale; along with the IMFL, a Chevrolet Car and Mini Truck of Ashok Leyland make and mobile phones were also seized.

2.1 It is stated that upon arrest of accused no. 6-Nagdan Prabhudan Gadhvi on 09.07.2022, he disclosed that he procured the stock of IMFL from Ashok Prajapati @ Ashok Marwadi from Girvar Village in Abu Road, Rajasthan, and during investigation at the place of information, it was revealed that the IMFL was loaded from village Girvar and at the time of preparing panchnama it was noted, during the investigation, which revealed that the stock of liquor being supplied by Ashok Marwadi was purchased by him on license.

2.2 It is stated that during the course of further investigation one Harish Sagar-accused no. 5 disclosed that his photograph and personal documents was misused for the purpose of preparing a rent agreement, therefore, offence under section 465, 468, 471 and 120B of IPC was ordered to be added.

2.3 It is stated that on 01.09.2022, the Investigating Officer has filed charge-sheet against the accused no. 6-Nagdan prabhuda Gadhvi, wherein the present applicant was shown as an absconding accused. It is stated that the present applicant was arrested from Madhya Pradesh on 16.11.2022 along with a car and Rs.8 lacs cash and ultimately on 12.01.2023, charge-sheet was filed against him and upon filing of the charge-sheet, a criminal case being Criminal Case No. 368 of 2023 came to be registered. The learned Chief Judicial magistrate, Ahmedabad (Rural) vide order dated 28.03.2023 rejected the discharge application of the applicant.

3. Mr. Zubin Bharda, learned advocate for the applicant states that the learned Magistrate has committed a grave error in rejecting the application, Exh.5 filed by the applicant, as perusing the papers of the investigation filed by the Investigating Officer, there is no iota of evidence or material, which even prima facie connect the applicant with the alleged offence. Mr. Bharda submitted that the entire charge-sheet is silent qua the role attributed to the applicant with respect to the supply or procurement of the IMFL or preparation of the false documents.

3.1 Advocate Mr. Bharda further submitted that the applicant was arrested on 17.11.2022 with Rs.8 lacs cash and Innova Car and two Mobile Phones, which is the only consideration weighed with the learned Magistrate to reject the discharge application of the applicant. Mr. Bharda stated that the applicant was a retired army personnel and a businessman and permanent resident of Chandigarh, and he was on a business tour to Madhya Pradesh, and therefore he had Rs.8 lacs cash, and mere recovery from the applicant, is not sufficient for drawing an adverse inference against the applicant.

3.2 Mr. Bharda further submitted that the observation of the learned Magistrate relating the applicant in the offence in collusion with the absconding accused of supplying the muddamal IMFL by perusing the papers of investigation, is unjustified, as the accused no. 6 had taken the Investigating officer to Abu Road