KAILASH GOVINDRAM RATHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Mr. Adil Mirza, learned Advocate appearing on behalf of the applicants in Criminal Misc. Application No. 2026 of 2007 does not press the present application qua the applicant No.1 and restricts the application for applicant Nos. 2 and 3 only. Permission is accordingly granted.

(2.) As common question of law and facts arise in this group of petitions, they are being disposed of by this common judgment and order. In all the cases different criminal complainants are filed with different Police Stations against the respective applicants - original accused for the offences punishable under Sections 66(B), 65(a)(e), 81, 43 read with Section 116(2) of the Bombay Prohibition Act, 1949. It is to be noted that by and large in all the cases huge quantity of English liquor has been recovered from the persons who were transporting the same from various places out of State of Gujarat to the State of Gujarat and by and large in all the cases accused who were already arrested are Drivers, Cleaners etc. At the time of recording the statement and/or filing the complaint itself names of respective applicants are disclosed by the accused who were already arrested and the allegations against the applicants are that either they are the suppliers who have supplied either from Rajasthan and/or out of Gujarat and/or to whom liquor was to be supplied and/or for whom all the accused who were arrested. It is required to be noted that in almost all the cases, respective applicants are wanted and hailing from out of Gujarat. On the basis of the statements of the accused who are already arrested which is recorded herein above implicating the applicants, the concerned Investigating Officer of the respective Police Stations have initiated investigation; and at that initial stage the applicants have approached this Court and in most of the cases they have obtained stay of further investigation mainly on the ground that except the statements of the co-accused there is no evidence and/or material against the respective applicants. Therefore, the statements of the co-accused is inadmissible in evidence more particularly considering section 25 of the Indian Evidence Act and Section 161 of the Criminal Procedure Code and therefore, respective complaints filed against the respective applicants are required to be quashed and set aside.

(3.) Mr.H.S.Mulia, learned Advocate and Mr.Adil Mirza, learned Advocate appearing on behalf of the respective applicants - original accused have vehemently submitted that the statements of the co-accused is inadmissible in evidence as per the provisions of the Indian Evidence Act and there cannot be any conviction on the basis of the statements of the co-accused and in the complaint there is no evidence and/or material against the applicants, therefore, the impugned complainants are required to be quashed and set aside. It is also further submitted that as the statements of the co-accused are inadmissible in evidence, on the basis of the statements of the co-accused there cannot be any conviction and as there are blink chances of conviction, to continue the criminal proceedings against the applicants by way of criminal complainants would be exercise in futility. Therefore, it is requested to quash the complainants. The learned Advocates appearing on behalf of the respective applicants have relied upon Section 25 of the Indian Evidence Act and also Section 161 of the Criminal Procedure Code. The learned Advocates appearing on behalf of the respective applicants have relied upon the decision of this Court in the case of NEW INDIA ASSURANCE CO.LTD. V/S. KETANBHAI BHAGVANDAS SHAH & ORS. REPORTED IN 2002(1)GLR 696, decision of this Court in the case of JINABHAI KALABHAI RAJPUT V/S. STATE OF GUJARAT REPORTED IN 1999(1) GLH 246 and also decision of this Court in the case of SURESH CHHOTALAL VERMA V/S. STATE OF GUJARAT REPORTED IN 2001(2)GLR 1029 in support of their above submissions and requested to quash the impugned complaints.