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2017 (4) TMI 828 - HC - Indian LawsF.I.R. - offence punishable under Sections 66(1)(b), 65(A)(E), 116(B) and 81 of the Bombay Prohibition Act - Held that - Considerable emphasis has been laid upon the fact that the acts and omissions, which amount to a criminal offence under the Bombay Prohibition Act, have not been incorporated into the body of the Indian Penal Code as separate or distinct offence. It would have made the Indian Penal Code extremely cumbrous, if the offences under the various special and local Acts were included as separate offences under the Indian Penal Code and punishments separately provided for them in the said Code. To avoid repetition, the provisions have been made in the Indian Penal Code with reference to the offences generally and distinct punishment has been provided for them in Sections 109 to 117 of the Indian Penal Code. Where abetments of offences, under the special or local Act, satisfy the conditions of Sections 109 to 117, all the ingredients constituting an offence are complete, and there does not appear to be any reason why a person against whom all the ingredients of these offences are present should not be prosecuted under those sections. The applicants herein could be said to have abetted the commission of the offences punishable under the Bombay Prohibition Act. Section 107 of the I.P.C. explains what amounts to abetment. Abetment can be by way of instigation, it can be by way of aiding any act or illegal omission and it can be in the form of a conspiracy. To put it in other words, Clause secondly of Section 107 of the I.P.C. provides that a person abets the doing of a thing, if he engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. This litigation has been contested by the State tooth and nail and why not. The reason is obvious. One may not find an open bar on a public street, but the number of cases, as on date, pending in the different Courts in the State of Gujarat, bears eloquent testimony to the fact that either the policy is not effective or something is wrong with the implementation of the law. Out of 3,99,221 criminal cases pending as on 28th February 2017 in the State of Gujarat, 55,645 cases are under the Bombay Prohibition Act. It is high time that the Central Government should consider denotifying Daman as a part of the Union Territory and make it a part of the State of Gujarat so as to make the Prohibition Act applicable, which may have its own effect, and more particularly, after the recent amendment in the Act, providing more stringent provisions. It is for the Central Government to consider this issue at the earliest before it is too late in the day. With the above, all the applications fail and are hereby rejected. Notice, if any, stands discharged. The adinterim order, if any, stands vacated forthwith. It is needless to clarify that ultimately, at the end of the investigation, if chargesheet is filed against any of the applicants herein and there is no legal evidence to connect any of the applicants with the alleged offence, except the statements of the coaccused, then it shall be open for the applicants to challenge the chargesheet before the appropriate forum in accordance with law.
Issues Involved:
1. Applicability of the Bombay Prohibition Act to residents of Daman. 2. Legality of prosecuting Daman residents under the Bombay Prohibition Act for offences committed in Gujarat. 3. Validity of the FIRs based on the statements of co-accused. 4. Interpretation of Section 40 of the Indian Penal Code (IPC) in relation to local laws. 5. Scope of police investigation under Sections 156 and 157 of the Criminal Procedure Code (Cr.P.C.). 6. Judicial discretion in quashing FIRs during the investigation stage. Issue-wise Detailed Analysis: 1. Applicability of the Bombay Prohibition Act to Residents of Daman: The applicants argued that the Bombay Prohibition Act, being a local law, does not apply to Daman, a Union Territory. They contended that they hold valid licenses for the sale of liquor in Daman and thus cannot be prosecuted under the Act for offences committed in Gujarat. The court, however, noted that the prohibition policy in Gujarat is stringent, and the easy availability of liquor in Daman has led to illegal transportation into Gujarat. The court emphasized that the applicants' involvement in the supply of liquor into Gujarat could prima facie attract the provisions of the Bombay Prohibition Act. 2. Legality of Prosecuting Daman Residents under the Bombay Prohibition Act for Offences Committed in Gujarat: The court rejected the argument that the Bombay Prohibition Act has no extraterritorial application. It held that the clandestine manner in which liquor consignments were supplied and brought into Gujarat indicates the applicants' complicity in the offence. The court emphasized that proper investigation is required to ascertain the extent of their involvement. 3. Validity of the FIRs Based on the Statements of Co-Accused: The applicants argued that most FIRs were based on statements of co-accused, which do not constitute legal evidence. The court, however, held that at the initial stage of investigation, such statements could provide clues for deeper investigation. The court refused to quash the FIRs on this ground, emphasizing the need for a thorough investigation. 4. Interpretation of Section 40 of the IPC in Relation to Local Laws: The applicants contended that Section 120B of the IPC (criminal conspiracy) does not figure in Section 40 of the IPC, which defines "offence" under local laws. The court clarified that Section 40 includes acts punishable under special or local laws when the punishment is imprisonment for six months or more. The court held that abetment of offences under the Bombay Prohibition Act could be prosecuted under Sections 109 to 117 of the IPC. 5. Scope of Police Investigation under Sections 156 and 157 of the Cr.P.C.: The court referred to Sections 156 and 157 of the Cr.P.C., which confer wide powers on the police to investigate any cognizable offence. The court emphasized that the definition of "offence" under Section 2(n) of the Cr.P.C. is broad enough to include offences under special and local laws. The court held that the police have the authority to investigate the offences under the Bombay Prohibition Act involving the applicants. 6. Judicial Discretion in Quashing FIRs During the Investigation Stage: The court reiterated the principles laid down by the Supreme Court in State of Haryana vs. Bhajanlal, emphasizing that the power to quash FIRs should be exercised sparingly and only in rare cases. The court held that the present case does not fall within the categories warranting quashing of FIRs. The court refused to interfere with the ongoing investigation, allowing the police to complete it in accordance with law. Conclusion: The court dismissed all the applications, allowing the police to continue their investigation. It emphasized that the applicants could challenge the chargesheet if no legal evidence, apart from the statements of co-accused, is found against them at the end of the investigation. The court also suggested that the Central Government consider denotifying Daman as a Union Territory to make the Prohibition Act applicable, thereby addressing the issue of illegal liquor supply into Gujarat.
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