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CR.MA/4032/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 4032 of 2010
=========================================================
RITOBROTO
SEN GUPTA (IN FIR ASRAKESH PRAKASHBHAI VERMA) - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
NK MAJMUDAR for
Applicant(s) : 1,
Mr Shivang Shukla, Addl.PUBLIC PROSECUTOR for
Respondent(s) : 1,
None for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 21/04/2010
ORAL
ORDER
1. This
Application under section 482 of the Code of Criminal Procedure, 1973
is filed by the petitioner, a serving personnel in the Armed Forces
of the rank of Colonel challenging FIR dated 16.4.2010 filed at
Sanand police station in Prohibition Case No.177/2010 for the
alleged offences under sections 65(a), 66(1), 116-B, 81, 83, 75-A,
85(1) c, 86 and 110 and 117 of the Bombay Prohibition Act on the
ground that the FIR impugned does not contain any allegations of
commission of crime against the applicant.
2. Mr
N K Majmudar, learned Advocate for the applicant submits that the
applicant is wrongly arraigned as accused No.1 who is a Defence
Personnel and when he was on a visit to a place belonging to his
friend, police personnel of Sanand police station raided the Club
House pursuant to information received and, therefore, he was
arrested and FIR is lodged. It is further submitted that there is
no material against the applicant and the allegations are to the
extent that one liquor bottle of foreign brand, sealed Beer tins 11
in numbers and other such items were recovered. It is further
submitted that such recovery against other accused will not lead or
connect the present applicant with the crime. It is further
submitted that the petitioner being a Defence Officer, is entitled to
have his quota of foreign liquor, cannot be brought within the
purview of provisions of Bombay Prohibition Act. The learned
Advocate also referred to section 39 of the Prohibition Act and
definition of section 2 (12) i.e. “to drink” and
submitted that admittedly the petitioner was not found drunk and,
therefore, invocation of various provisions of Prohibition Act
against the applicant is illegal and the impugned FIR deserves to be
quashed and set aside.
3. Learned
APP for the respondent-State submits that the case is at the stage of
filing of FIR and details about the alleged incident is under
investigation. According to the learned APP, this is not a case
where a person consuming liquor/alcohol prohibited by virtue of
operation of the Bombay Prohibition Act is arrested at private place
but there were about 29 accused who had gathered to enjoy a drink
party accompanied by women bar dancers brought from places like
Bombay and Surat and recovery panchnama reveals that the present
applicant was in company of those persons with prohibited items and
panchas have found them in drunken condition. It is further
submitted that FSL report is yet to be obtained and on completion of
investigation appropriate report will be filed and, therefore, at
this stage, interference in exercise of powers under section 482 of
the Criminal Procedure Code is not warranted.
3. Having
heard the learned Advocate for the applicant and the learned APP and
in the facts and circumstances of the case, perusal of the FIR and
provisions of section 39 of the Bombay Prohibition Act, I am of the
opinion that at this stage, no case is made out for this court to
exercise power under section 482 of the Code inasmuch as the
averments made in the FIR reveal involvement of the applicant in
commission of the crime for the offences under sections 65(a),
66(1), 116-B, 81, 83, 75-A, 85(1) c, 86 and 110 and 117 of the Bombay
Prohibition Act. Not only that but the applicant being an Officer of
the rank of Colonel with Indian Army, prima facie, is found to have
committed alleged crimes in the company of number of persons who
have gathered to enjoy drink party and sleaze dance in contravention
of provisions of the Bombay Prohibition Act and recovery panchnama
prima facile reveals prohibited items of bottle of liquor, alcohol
etc. So far as section 39 is concerned, it is pertinent to note
that permission to use or consume foreign liquor on warships
troopships and in messes and canteens of Armed Forces, the State
Government is empowered to specify by general or special order that
members of the Armed Forces in messes and canteens of the Armed
Forces can consume liquor. Admittedly the place of offence was a
private club house and, therefore, it is not covered under the
definition of section 39 of the Prohibition Act.
4. Considering
the fact that the investigation is yet to be completed against 29
accused and their statements are yet to be recorded, and at the end
of investigation, report will have to be submitted before the
competent court, at this stage, this court will not embark upon an
enquiry to ascertain the truthfulness or otherwise of the allegations
in exercise of powers under section 482 of the Code of Criminal
Procedure .
No
case is made out,
this application is rejected.
[ANANT
S. DAVE, J.]
msp
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