1. These three separate Criminal Misc.
Applications have been moved by the petitioner Girish Maharaj and Rajesh @ Raju for quashing of the criminal cases pending against them. Criminal Misc. Application No.820 of 2007 has been moved by accused Girish Maharaj for quashing of the FIR bearing CR No.259 of 2004 and Criminal Case No.4277 of 2004, while Criminal Misc. Application Nos.1810 and 1630 of 2007 have been moved by the petitioner Rajesh @ Raju for quashing of Prohibition CR No.5022 of 2004 dated 13.3.2004 and also the FIR being CR No.259 of 2004 and Criminal Case No.4277 of 2004.
2. Since both the accused petitioners have been mentioned as co-accused in these FIRs and with the consent of learned counsel for the parties, the matters are being taken up for hearing and are disposed of by this common order.
3. The Police Commissioner, Zone-I, Ahmedabad received the information that foreign liquor was being transported in the city which is in a dry State. On receipt of this information, he directed the concerned police official along with other witnesses to hold naka at the relevant spot. The police party was holding naka in the street of Guru Gobinddham, Bodakdev, near building No.399. At around 5.30 p.m., they noticed one Qualis car bearing registration No.GJ 1 HD 9347 and thereafter one Wagon R car bearing registration No.GJ 1 HF 9359 and Maruti 800 car bearing registration No.GJ 1 HF 7366 reached at the spot and were parked. There were number of accused in these cars. The foreign liquor having been brought in Qualis was being shifted to the small car and at that point of time, the police intercepted and took the accused as well as foreign liquor into their possession. In the meantime, another Scorpio car and certain other vehicles also reached the spot. Once again, liquor was being shifted to these cars and these were also apprehended by the police. On inquiry from the accused, they informed that liquor in question actually belongs to one of the present petitioners being Girish Maharaj who was also likely to reach the spot. After sometime, the present accused i.e. Girish Maharaj reached in Santro car bearing registration No.GJ 1 HG 7295 which was being driven by the second accused petitioner Rajesh @ Raju. The police officer present at the spot identified all these accused, however, they manage to escape. The police could not chase them as other accused and contraband recovered from other vehicles were being guarded there at the place of apprehension. On the basis of this recovery, Prohibition CR No.5022 of 2004 dated 13.3.2004 was registered against 10 persons including the petitioners before this Court. The chalan was presented in the court and Criminal Case No.4278 of 2004 was registered in the court. The accused were shown as absconded in this case.
4. After affecting recovery stated in previous paragraph, the police further verified registration numbers of the cars and necessary inquiry in this regard was made from the office of the Regional Transport Officer. From the inquiry, they came to know that the vehicles used in the crime were having fictitious registration numbers. The car used by the present petitioner i.e. Santro bearing registration No.GJ 1 HG 7295 was found to be bearing fake registration number. On the basis of this investigation, separate FIR bearing No.259 of 2004 dated 21.3.2004 was registered against both the above mentioned accused. Both these accused were shown absconded and separate chalan was presented in the court, on the basis of which Criminal Case No.4277 of 2004 was registered against the accused.
5. It will be relevant to mention here that the petitioner Girish Maharaj who was accused in both the cases i.e. Prohibition CR No.5022 of 2004 and the FIR bearing CR No.259 of 2004 approached this Court by way of separate Criminal Misc. Application No.5776 of 2004 under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Code”) seeking quashing of the FIR bearing Prohibition CR No.5022 of 2004 and Criminal Case No.4277 of 2004. The said petition was allowed by this Court vide its judgment dated 10.12.2004. Since the petitioner Girish Maharaj was facing trial in the second FIR bering CR No.259 of 2004 and Criminal Case No.4277 of 2004, he has approached this Court for quashing of the proceedings. Prior to this petition, the petitioner approached this Court by way of earlier petition seeking quashing of the case against him. However, this Court vide its order dated 4.8.2006 directed him to approach the trial Court and move his application before that Court. The trial Court vide its detailed order dated 12.1.2007 dismissed the application. As a result of this dismissal, the petitioner – Girish Maharaj has preferred the present petition.
6. As far as second petitioner Rajesh @ Raju is concerned, he has sought quashing of the FIR bearing Prohibition CR No.5022 of 2004 on the ground that Criminal Case No.4278 of 2004 against his co-accused i.e. Girish Maharaj has been quashed by this Court vide its order dated 10.12.2004 and as such, the case of the petitioner being similar to that of his co- accused is also liable to be quashed. The petitioner Rajesh @ Raju has also sought quashing of the FIR bearing CR No.259 of 2004 and Criminal Case No.4277 of 2004 on the common grounds which both the accused have mentioned in their respective petitions.
7. Another important thing which is required to be clarified in this case is that this Court vide its order dated 10.12.2004, while allowing the petition under section 482 of the Code of the accused petitioner Girish Maharaj, has at certain places wrongly mentioned Criminal Case No.4277 of 2004 which seems to have been later on clarified vide order dated 21.8.2006 wherein it has been stated that in fact, Criminal Case No.4278 of 2004 has been quashed regarding accused Girish Maharaj, while inadvertently in its judgment at certain places, it has been wrongly mentioned as Criminal Case No.4277 of 2004.
8. I have heard learned counsel for the petitioners and learned APP for the State and also gone through the record of the case placed before this Court.
9. Learned counsel for the petitioners, while arguing on behalf of accused petitioner Girish Maharaj, has submitted that as Criminal Misc. Application No.5776 of 2004 seeking quashing of the FIR bearing Prohibition CR No.5022 of 2004 dated 13.3.2004 has been quashed by this Court, second case being FIR bearing CR No.259 of 2004 and Criminal Case No.4277 of 2004 are also liable to be quashed as this petitioner was not present at the time of occurrence of the incident nor any recovery has been affected from him. It is submitted that involvement of the petitioner on the basis of the statement made by the co-accused was inadmissible and as such, the petition of the petitioner is liable to allowed.
10. While arguing for the petitioner Rajesh @ Raju in Criminal Misc. Application Nos.1610 and 1630 of 2007, it has been submitted that as the FIR being Prohibition CR No.5022 of 2004 of the co-accused i.e. Girish Maharaj has been quashed, the case of the present petitioner cannot be separated from other accused and as such the petition for quashing of the FIR bearing Prohibition CR No.5022 of 2004 dated 13.3.2004 is also liable to be quashed against him. Similarly, regarding quashing of the FIR bearing CR No.259 of 2004, the petitioner has filed Criminal Misc. Application No.1630 of 2007. It has been submitted that the present petitioner along with co- accused Girish Maharaj were never present at the place of occurrence. The evidence relied upon by the petitioner has been duly considered by this Court while allowing Criminal Misc. Application No.5776 of 2004 and when there was no other evidence available with the prosecution to prosecute against the accused, the cases in question are liable to be quashed. It has been submitted that both the accused are not arrested at the place of occurrence and in absence of any arrest or their involvement in such type of cases earlier, they are innocent and have been falsely implicated in these cases.
11. On the other-hand, learned APP appearing for the State has argued with vehemence that both the accused have duly participated in both the crimes. They were, in fact, main importers of the foreign liquor in Ahmedabad and huge quantity of liquor has been recovered. It has been submitted that both the accused have been involved in using the cars which were having fictitious registration numbers and in these circumstances, all the Criminal Misc. Applications moved by the present petitioners are liable to be dismissed.
12. I have given my thoughtful consideration to the submissions made by learned counsel for both the sides.
13. It is not in dispute that huge quantity of liquor has been recovered from the place of occurrence. On the relevant day, as many as six or seven cars have been used for transporting and further distribution of liquor which is banned item in Gujarat State. It will be relevant to note that apart from the huge quantity of liquor mentioned above, the prosecution has also recovered Rs.3 lacs in cash which were to be paid in lieu of liquor which seems to have been brought from Rajasthan and was meant for distribution in various parts of Ahmedabad city. This court is unable to agree with the argument of learned counsel for the petitioners that there was no other evidence except the submission of the co-accused and on the basis of the submission of the co-accused, the petitioners cannot be held guilty or made to face the trial. It will be relevant to note that apart from the statement of the co-accused, there is another substantial evidence available on the file. There is statement of the police official who has identified the accused at the site. The recovery of huge quantity of liquor is another incriminating evidence which prima facie proves the case of the prosecution. The recovery of Rs.3 lacs in cash from the place of occurrence also material circumstance which may go against the accused. The use of cars with fictitious registration numbers is another circumstance. Both the accused were known to police and they have been identified by the police official who seen them reaching at the place of occurrence. Another set of evidence is in the form of document recovered from office of the Regional Transport Office, Ahmedabad which further prima facie proved the fact that the vehicles in question were having fictitious registration numbers. In view of the above mentioned evidence, this Court is of the view that the present petitions are not required to be entertained while exercising inherent powers of this Court under section 482 of the Code.
14. Learned counsel for the petitioners laid emphasis on the point that the FIR bearing Prohibition CR No.5022 of 2004 against the co-accused Girish
of all, from the order, it appears that nowhere it has been mentioned that the accused are involved in the second case in which fictitious registration number plats have been used. The police has no animosity with the accused to falsely implicate them nor such heavy recovery can be falsely created. Apart from this, huge quantity of foreign liquor recovered from the spot and a sum of Rs.3 lacs cannot be planted.
15. In view of the above discussion, the present petitions are bound to fail. All the petitions are hereby dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith. While giving the reasonings, another important thing noted is that both the accused are absconding from the day one; neither they have appeared before the trial Court nor they have been granted regular bail by any of the Court as is apparent from the documents. Under the circumstances, the accused are directed to surrender before the trial Court to face the trial on 17.9.2012. The trial Court will decide their bail applications if CR.MA/820/2007 10/10 JUDGMENT moved as per the law and considering their past conduct and will not, in any way, being influenced by this order. Copy of this order be sent to the trial Court forthwith.
(Mohinder Pal,J) pathan