Kanubhai Babubhai Patel vs State of Gujarat and Another

Harsha Devani, J.—Rule. Mr. A.N. Shah, learned Additional Public Prosecutor waives service of notice of rule on behalf of the

respondents. Having regard to the facts of the case and with the consent of the learned advocates for the respective parties, the matter is taken up

for final hearing today. By this petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure,

1973 (hereinafter referred to as ""the Code""), the petitioner seeks quashing of the first information report registered as Prohibition C.R. No.

5770/2012 with DCB Police Station, Surat.

The above referred first information report came to be registered against the petitioner and other three persons alleging commission of the

offences punishable under sections 66B, 65AE, 116(1), 81, 98 and 99 of the Bombay Prohibition Act. The allegations were to the effect that the

accused No. 1 and 2 were apprehended by the police while travelling in a car and upon carrying search of the car, large quantities of Indian made

foreign liquor was found in the car. Upon asking the accused persons as to from where they had obtained the stock of liquor, they were informed

that they had purchased the same from the owner of Shital Bar - Dalpat Babubhai Patel and his brother Kanu viz., the petitioner herein, from

Daman.

Mr. H.R. Prajapati, learned advocate for the petitioner submitted that the petitioner is a dealer of petrol and that his brother owns a shop by the

name of Shital Bar at Daman and the petitioner is not directly or indirectly connected with the said business. That the petitioner''s brother-

Dalpatbhai has a valid licence issued by the competent authority at Daman for sale of liquor at his above referred shop. It was argued that selling

liquor at Daman is not an offence as the provisions of the Bombay Prohibition Act are not applicable in Daman which is a Union Territory and

does not fall within the limits of the State of Gujarat. Under the circumstances, the first information report against the present petitioner is an abuse

of the process of court and as such, is required to be quashed and set aside.

On the other hand, Mr. A.N. Shah, learned Additional Public Prosecutor submitted that the co-accused have stated that they had obtained the

stock of liquor from Shital Bar run by the brother of the petitioner and the petitioner. Under the circumstances, at this stage of the proceedings,

there is no warrant for intervention.

From the facts as emerging from the record, it is apparent that the sole allegation against the petitioner is that the accused No. 1 and 2 had

obtained the stock of liquor seized from the car in which they were travelling, from the petitioner''s brother who owned the shop by the name of

Shital Bar and from the petitioner. As rightly contended by the learned advocate for the petitioner, Daman is a Union Territory and the provisions

of the Bombay Prohibition Act are not applicable to the said territory. Under the circumstances, sale of liquor at Daman would not amount to an

offence under the Bombay Prohibition Act. A plain reading of the first information report in question shows that the sole allegation against the

petitioner is that two of the accused had purchased the stock of liquor from the petitioner''s brother and the petitioner, from the shop owned by the

petitioner''s brother. The record reveals that the petitioner''s brother has a licence for dealing in liquor and also pays excise duty in respect thereof.

Under the circumstances, the sale of liquor at Daman not being an offence under the Bombay Prohibition Act, even if the allegations made in the

first information report are accepted at face value and taken to be true, no offence as alleged can be stated to have been made out qua the present

petitioner. Under the circumstances, continuation of the proceedings against the petitioner would amount to an abuse of the process of law. This is,

therefore, a fit case for exercise of powers u/s 482 of the Code. For the foregoing reasons, the petition succeeds and is accordingly allowed. The

first information report registered vide DCB Police Station, Surat Prohibition C.R. No. 5570/2012 is hereby quashed and set aside qua the

petitioner alone. Rule is made absolute accordingly.