SHAKTISINH KUMARPALSINH ZALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this application under Sec. 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has prayed for quashing and setting aside order dtd. 22/9/2021 passed by the learned 2 nd Addl. JMFC, Padra and further be pleased to quash and set aside entire proceedings of Criminal Case No.935 of 2019 arising from FIR being C.R.No.III - 79 of 2018 registered with Padra Police Station for the offences punishable under Ss. 65(a)(e) , 81 , 98(2) of the Gujarat Prohibition Act as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein.

(2.) Brief facts of the case are as under:-

(3.) Learned advocate Mr. Saurin Shah along with learned advocate Mr. Nisarg Vyas appearing for the petitioner mainly submitted that the petitioner is serving as a police officer and is made a victim in the offence on the ground of departmental clash. He would further submit that the petitioner was falsely implicated in the offence though he was not named in the FIR, and having no evidence on record. He would further submit that the petitioner was arrested on 20/2/2018 on the basis of the FIR, which is lodged on 8 th February 2018, and later on, remand was also sought. He would further submit that the petitioner is linked with the FIR on the ground that he was using sim card of a mobile number by placing the document of some other person. He would further submit that according to the case of the prosecution, said sim card obtained in name of other person was used by the petitioner to facilitate the main accused in transporting liquor. He would further submit that in the present case, the investigation is completed and charge sheet is filed. However, charge sheet is lacking necessary evidence on record, which sufficiently proved to link the petitioner with the main accused. There is no call details, no mobile data, no CDR, and lacking of such essential evidence on record demonstrates that no evidence is coming out against the petitioner to direct him to face the trial. He would further submit that the petitioner has preferred application in Criminal Case No. 835 of 2019 before the learned JMFC. However, the learned trial court declined to discharge the petitioner from accusation on the flimsy and superficial reason and therefore, since the petitioner kept the liberty open to prefer petition under Sec. 482 of the Code in earlier order dated 3 rd September 2019 passed in Special Criminal Application No. 8317 of 2019, the petitioner preferred present petition. In nutshell, learned advocate Mr. Shah submits that since there is no evidence on the record, even in the charge sheet, which indicates and links the petitioner with the act of other accused, and to establish that the petitioner by using particular mobile number obtained in name of some third party by using their papers, facilitating the main accused in transporting the Indian made foreign liquor described in the FIR, the petitioner should not be sent to face the trial. Lastly, learned advocate Mr. Saurin Shah also referred to the order dtd. 10/1/2022, passed by the Coordinate Bench to submit that a detailed order was passed by the Coordinate Bench while granting interim relief in terms of Para, 13(B), as such prima facie, insufficiency of the evidence was found to put the accused in trial, and therefore interim relief was granted in terms of Para 13(B) of the petition. Learned advocate Mr. Shah referring to three judges bench judgment of the Hon'ble Apex Court in case of Mohan Lal Vs. State of Panjab , AIR 2018 SC 3853 also to submit that Mr. KH Bihola, PSI is the first informant and is also the investigating officer in the matter, which is a violative of principle of fair investigation, and as such all subsequent proceedings carried in investigation are vitiated proceedings.