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Gujarat High Court · body

2025 DIGILAW 34 (GUJ)

Pankajbhai Kantilal Patel v. State of Gujarat

2025-01-22

M.R.MENGDEY

body2025
JUDGMENT : 1. The present Revision Applications have been filed by the applicants under the provisions of Section 397 read with Section 401 of the Criminal Procedure Code , praying to quash and set aside the orders; (i) dated 8.5.2024 passed below Exh.116 in Sessions Case No.71 of 2022 by learned Sessions Judge, Botad; (ii) dated 15.2.2024 passed below Exh.118 in Sessions Case No.283 of 2022 by learned Principal District & Sessions Judge, Ahmedabad Rural; (iii) dated 8.5.2024 passed below Exh.101 in Sessions Case No.70 of 2022 by learned Sessions Judge, Botad; (iv) dated 15.6.2024 passed below Exh.223 in Sessions Case No.283 of 2022 by learned Principal District & Sessions Judge, Ahmedabad Rural; (v) dated 30.10.2023 passed below Exh.83 in Sessions Case No.283 of 2022 by learned Principal District & Sessions Judge, Ahmedabad Rural. 1.1 Rule returnable forthwith. Learned PP waives service of Rule on behalf of the respondent State. 2. The facts and circumstances giving rise of filing of these applications are such that the incidents of death having been caused because of consumption of spurious liquor had occurred in various parts of the State of Gujarat. Several FIRs came to be registered in that regard in various police stations of the State. The investigating agency after carrying out the investigation, had filed the charge-sheet against the accused persons, including the present applicants, mainly for an offence punishable under the Section 304 of IPC and with other alliedoffences. The applicants herein have preferred the applications under the provisions of Section 227 of Cr.P.C, claiming discharge from the offences in question. The respective trial courts, vide respective impugned orders were pleased to dismiss those applications, being aggrieved by and dissatisfied with the same, the applicants herein have preferred the present Revision Applications. 3. Learned senior advocate Mr. R.S. Sanjanwala, appearing for some of the applicants, submitted that the applicants herein are the Directors of one Amos Corporation and one of them is aged about 87 years. The present applicants were not actively involved in day to day administration of the company in question. The present applicants had been appointed as the Director of the company only for the name-sake. Thus, the present applicants though being the Directors of the company, had no knowledge, whatsoever, as regards the affairs of the company. The present applicants were not actively involved in day to day administration of the company in question. The present applicants had been appointed as the Director of the company only for the name-sake. Thus, the present applicants though being the Directors of the company, had no knowledge, whatsoever, as regards the affairs of the company. 3.1 He further submitted that the present applicants, or for that matter, the other applicants of the other applications, have not been named in the FIR as an accused. The company namely Amos Corporation was indulged in the activity of packaging of methyl alcohol and had entered into an agreement for the same with one Finar Limited. The Amos Corporation was also holding a valid licence for storage of methyl alcohol under the relevant provisions of the Gujarat Prohibition Act. The said Amos Corporation had also issued a naukarnama in favour of the co-accused Jayesh Khavadiya. Thus, the relevant provisions of the Gujarat Prohibition Act and for that matter, the other relevant Rules and Regulations have been duly followed by the company and once the said Jayesh Khavadiya had been issued naukarnama, the Directors of the company cannot be held personally liable for the acts of the company. 3.2 He next submitted that the statement of the said Jayesh Khavadiya came to be recorded under Section 164 of the Cr.P.C. during the course of investigation, and he in his statement has categorically stated that he had supplied the stock of methyl alcohol to the other co-accused for want of money. The statement of the said Jayesh Khavadiya absolves the Directors of the company of the criminal liability. He submitted that the applicants herein cannot be said to have committed an offence punishable under Section 304 of IPC by any stretch of imagination as no intention or knowledge, as required under the provisions of Section 304 of IPC, can be attributable to the present applicants. There is no material, whatsoever, connecting the present applicants with the offence in question, nor any overt act has been attributed to the present applicants in commission of the offence in question. 3.3 He lastly submitted that the material available on record indicates that the only role which can be attributed to the present applicants is of not providing for the necessary safe guards to rule out any pilferage of methyl alcohol. 3.3 He lastly submitted that the material available on record indicates that the only role which can be attributed to the present applicants is of not providing for the necessary safe guards to rule out any pilferage of methyl alcohol. The applicants herein being the Directors of the company had no knowledge at all that the methyl alcohol, which was stored in the godown of the company would be stolen and utilized for preparation of spurious liquor and the consumption of which would result into loss of human lives. He therefore, submitted to allow the present applications, discharging the applicants herein from the charge for an offence punishable under Section 304 of the IPC . 4. Learned senior advocate Mr. Jal S. Unwala appearing for the other set of applicants, adopted the arguments advanced by learned senior advocate Mr. R.S. Sanjanwala and further submitted that there is no averment in the charge-sheet to the fact that the company namely Amos Corporation had committed an offence punishable under Section 304 of IPC and in absence of any such averment, the Directors cannot be held liable for the said offence. 4.1 He submitted that the company is not arraigned as an accused. He submitted that the licence for storage of methyl alcohol had been issued in favour of the company and not in favour of the Directors and therefore, the Directors cannot be held liable for breach of any of the conditions of the said licence. The company had also issued a naukarnama in the name of co-accused Jayesh Khavadiya under the provisions of Section 79 of the Gujarat Prohibition Act. 4.2 He further submitted that the material available on record indicates that all due care and caution had been duly taken by the company in due compliance to the conditions of the licence. He submitted that no overt act, whatsoever, has been attributed to the present applicants, either in FIR or in the charge-sheet. 4.3 He further submitted that the invocation of Section 304 Part-II of the IPC would require the accused to commit an act with knowledge that his act would cause death or would cause an injury, which may result into death and since no such act has been attributed to the applicants, they cannot be charged for an offence punishable under Section 304 Part-II of IPC . 4.4 He submitted that as per the decision of the Co-ordinate Bench of this court in the case of [ Pratik Jagdishbhai Thakkar Vs. State of Gujarat, reported in 2017 (4) GLR 3018 ], no FIR can be registered for an offence punishable under Section 304 of IPC and the police cannot file charge-sheet for an offence punishable under Section 304 of the IPC , after conclusion of investigation. 4.5 Relying upon the judgment of the Hon’ble Supreme Court in the case of [Shamsher Khan Vs. State (Govt. of NCT of Delhi), reported in 2000 (8) SCC 568 ] he submitted that in the absence of any act attributed to the applicants, no offence punishable under Section 304 can be said to have been committed by the present applicants. He therefore submitted to allow the present applications and discharge the present applicants of the offence punishable under Section 304 of IPC . 5. Learned Public Prosecutor Mr. Hardik Dave has opposed the present applications contending that merely an issuance of naukarnama in purview of the provisions of the Gujarat Prohibition Act , would not absolve the applicants of their criminal liability. He submitted that the material collected during the course of investigation indicates that the excess stock of methyl alcohol was found lying in the godown of the company. The stock of methyl alcohol was received by the Amos Corporation from one Finar Limited for the purpose of packaging and the fact that the excess stock was found from the godown of the company, gives a reason to believe that such excess stock had been maintained by the company with an intention to use it illegally. 5.1 He submitted that the applicants herein being the Directors of the company were very much aware about the fact that methyl alcohol was a hazardous substance and misuse of it may result into loss of human lives and despite the said knowledge, the applicants herein had not taken due care to ensure that all the safety measures were in place so that there was no chance of any pilferage of methyl alcohol. 5.2 He further submitted that the material collected during the course of investigation indicates that there were no CCTV cameras installed in the premises, wherein the methyl alcohol was stored. 5.2 He further submitted that the material collected during the course of investigation indicates that there were no CCTV cameras installed in the premises, wherein the methyl alcohol was stored. Had those cameras been in place, the theft of methyl alcohol could have been prevented and the situation of death of many people could also have been avoided. 5.3 He submitted that the applicants herein had a definite knowledge that if due care was not taken, the substance of methyl alcohol would land in the hands of unscrupulous elements, which may further be used for preparation of spurious liquor, which would be hazardous to human lives. It is not correct on the part of learned senior counsels appearing for the respective applicants to contend that the offence punishable under Section 304 of IPC is not made out against the applicants. 5.4 He submitted that the investigation further revealed that the statutory requirements and the conditions of licence issued in favour of the Amos Corporation were not fulfilled and therefore, the licence so issued was subsequently cancelled. 5.5 He further argued that the statement of the co-accused Jayesh Khavadiya recorded under Section 164 of the Cr.P.C., is sought to be relied upon by the applicants. However, the said statement being of an accused, would not entitled the present applicants for discharge. It is also argued on behalf of the applicants that some of the applicants are old aged persons. The age of the accused may be a criteria for grant of bail, but it can certainly not be a criteria for discharge. He submitted that whether due care under the provisions of Section 79 of the Prohibition Act had been taken or not, is an issue to be examined at the stage of trial upon appreciation of evidence. Similarly, the issue as regards knowledge or intention on the part of the applicants being the Directors of the company is also a matter which require leading of evidence and for which, the applicants should be permitted to be prosecuted. The provisions of Section 79 of the Prohibition Act, does not preclude the present applicants from being charged for an offence punishable under Section 304 of IPC. The provisions of Section 79 of the Prohibition Act, does not preclude the present applicants from being charged for an offence punishable under Section 304 of IPC. 5.6 He next submitted that the applicants being the Directors of the company had visited the godown where the methyl alcohol was stored and thereafter, had not taken any action to avoid theft of methyl alcohol and in a way had allowed the co-accused Jayesh Khavadiya to continue his activity. He submitted that from the material available on record, it can be said that the applicants herein being the Directors of the company had a clear knowledge, as required to invoke an offence punishable under Section 304 of IPC against them. He therefore submitted to dismiss the present applications. 6. Heard learned advocates for the parties and perused the material placed on record. At the outset it is required to be noted that learned counsels appearing for the respective applicants have limited their arguments only to the aspect of the discharge of the applicants, so far as it relates to the offence punishable under Section 304 of the IPC. 6.1 The facts emerging from the material available on record are to the effect that the deaths had been recorded in some parts of the State because of consumption of spurious liquor and on the said basis, the present FIRs have been lodged initially for an offence punishable under Section 302 of IPC and other allied offences. However, after conclusion of the investigation, the accused including the present applicants were charge-sheeted for an offence punishable under Section 304 of IPC and other allied offences. 6.2 It is the case of prosecution that methyl alcohol had been used for preparation of spurious liquor. The consumption of which had resulted into loss of human lives. The applicants herein are the Directors of Amos Corporation. The said Amos Corporation was issued M.A.I and M.A.II licences by the Prohibition and Excise Department of the state for storage of methyl alcohol. The said Amos Corporation had entered into an agreement with one Finar Limited for packaging of methyl alcohol. The methyl alcohol was supplied by Finar Limited to Amos Corporation for the purpose of packaging. The methyl alcohol which was supplied by Finar Limited was being stored by Amos Corporation in its premises situated at Piplaj, Ahmedabad. The said Amos Corporation had entered into an agreement with one Finar Limited for packaging of methyl alcohol. The methyl alcohol was supplied by Finar Limited to Amos Corporation for the purpose of packaging. The methyl alcohol which was supplied by Finar Limited was being stored by Amos Corporation in its premises situated at Piplaj, Ahmedabad. 6.3 As per the case of prosecution, 600 liters of methyl alcohol, out of the stock which was stored at the premises of Amos Corporation had been committed theft of by the co-accused Jayesh Khavadiya, who was appointed as a labour contractor at the godown of Amos Corporation. The said Jayesh Khavadiya in his statement recorded under Section 164 of the Cr.P.C. has stated that he had stolen the stock of methyl alcohol worth 600 liters from the godown of Amos Corporation and had supplied the same to one Sanjaybhai Bhikhabhai and had received the amount of Rs.41,500/- in exchange and thereafter, the said stock of methyl alcohol had been used by the other co-accused for preparation of spurious liquor, which had been consumed by several victims, out of whom some people have died and some have received serious injuries. The present applicants are sought to be arraigned as accused in the present offence because they are the Directors of Amos Corporation. 6.4 The law as regards the scope for this court while considering an application filed under Section 397 of Cr.P.C against the order passed in an application under Section 227 of Cr.P.C is now well settled and the same does not require any reiteration. Still, what is required of this court at this stage, is to consider as to whether there is sufficient material on record to prosecute the applicants herein for the offence in question. 7. The applicants herein are sought to be prosecuted for an offence of culpable homicide not amounting to murder. Section 299 of the IPC defines the term culpable homicide as under, “299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 7.1 It is an admitted position that the present applicants are not attributed any positive act which had resulted in the death of the deceased. What is alleged against the applicants is their inaction in ensuring that the stock of methyl alcohol, which was stored in the godown of the company, was not misused. 8. Section 304 of the IPC reads as under, “304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 8.1 The first part of the Section 304 deals with an intention on part of the accused of causing death or causing such bodily injury as is likely to cause death. Whereas, the second part of the Section deals with the knowledge on part of the accused that the act attributed to him may cause death or may cause an injury which may result into death. 8.2 The material available on record is absolutely silent so far as it relates to Part-I of Section 304 of IPC and for that matter, it does not even appear to be the case of prosecution that the applicants herein had committed the act alleged on their part with an intention of causing death or a bodily injury which may result into death. Therefore, what is required to be examined is as to whether the act of inaction alleged against the present applicants would fall within the purview of Section 304 Part-II of IPC. 9. From the material available on record it appears that the co-accused Jayesh Khavadiya had been appointed as a labour contractor in the godown of the company where the stock of methyl alcohol was stored and the necessary naukarnama had also been issued in his favour by the company. 9. From the material available on record it appears that the co-accused Jayesh Khavadiya had been appointed as a labour contractor in the godown of the company where the stock of methyl alcohol was stored and the necessary naukarnama had also been issued in his favour by the company. Therefore, it was the primary duty of the said Jayesh Khavadiya to see that the stock of methyl alcohol was properly maintained and it was also his duty to see that the pilferage of the stock of methyl alcohol was prevented. The said Jayesh Khavadiya in his statement recorded under Section 164 of IPC has admitted his guilt that he had stolen 600 liters of methyl alcohol, out of the stock stored at the premises of the company and had sold it to the other co-accused and had also received the amount of Rs.41,500/- in return for the same. There is nothing on record to indicate that either the company or its Directors had any reason to believe that the said Jayesh Khavadiya would indulge into any such activity. The record is also absolutely silent as regards the said Jayesh Khavadia having indulged into such activity in past or any such incident having taken place in the past prior to the present incident. 10. Under the circumstances, the present applicants being the Directors of the Company cannot be expected to believe that any such incident may take place. Therefore, there is no reason for the applicants to have knowledge to the effect that methyl alcohol would be stolen from the facility of the company, the stolen stuff would be used for the preparation of spurious liquor, spurious liquor so prepared would be consumed by the victims and such consumption would result into loss of human lives. It would be too far fetched a scenario to attribute knowledge to the present applicants that methyl alcohol stored in the premises of the company would be stolen and supplied to the persons involved in the activity of preparation of spurious liquor, those persons would use it for the preparation of spurious liquor, the persons who died because of consumption of such liquor, would consume spurious liquor and die. 11. It is sought to be argued on behalf of the prosecution that the applicants herein being the Directors of the company had visited the premises where the stock of methyl alcohol was stored. 11. It is sought to be argued on behalf of the prosecution that the applicants herein being the Directors of the company had visited the premises where the stock of methyl alcohol was stored. The material available on record indicates that not all the Directors had visited the premises and only one Director had visited the same. Even if it is assumed that all the Directors had visited the premises, the applicants herein would not gain any knowledge of an intention on the part of the co-accused Jayesh Khavadiya, merely by visiting the premises of the company. There is no material, whatsoever, available on record to indicate that the applicants herein were aware about the intention on part of the said Jayesh Khavadiya and were also aware of his activities and despite that knowledge, had connived at his activities. 12. The prosecution has also invoked the provisions of Section 120B of IPC against the present applicants. However, there is no material available on record indicating about any meeting of minds between the present applicants and the other co-accused including Jayesh Khavadiya. 13. The Hon’ble Apex Court in its judgment in the case of [Keshub Mahindra Vs. State of M.P., reported in (1996) 6 SCC 129] has held as under, “Before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the concerned accused falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get put of the picture. In this connection we have to keep in view Section 299 of the Indian Penal Code which defines culpable homicide. It lays down that, 'whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide'. It lays down that, 'whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide'. Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima fade indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the Trial Court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the plant was run at Bhopal it was run by the concerned accused with the knowledge that such running of the plant was likely to cause deaths of human beings. It cannot be disputed that mere act of running a plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in tank Mo: 610 could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause death of human beings.” 14. The Hon’ble Apex Court in its judgment in the case of [Nitinchandra Somnath Raval Vs. State of Gujarat, reported in (2019) 14 SCC 676 ] has held that in order to invoke Section 304 of IPC , it is to be established (i) the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death or in the alternative, (ii) it is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. 15. The Co-ordinate Bench of this court in its judgment in the case of [Girishbhai Maganlal Pandya Vs. 15. The Co-ordinate Bench of this court in its judgment in the case of [Girishbhai Maganlal Pandya Vs. State of Gujarat reported in 2016 (1) G.L.H. 126 ] has held in para 27 as under, “27. In the overall facts of the case, I have reached to the conclusion that the case on hand is not one of voluntary commission of offence against a person. The harmfulness inflicted intentionally or knowingly or caused directly and wilfully would attract Section 304 IPC. I am of the view that the mere act of driving a vehicle mindful of the fact that the same needed some immediate repairs would not be a criminal act. Prima-facie it appears that the driver as well as the cleaner were in knowledge of the fact that there was a cavity beneath the seat on which unfortunately the deceased was sitting, and despite such knowledge the driver and the cleaner kept on plying the vehicle. However, that by itself would not suggest that they had knowledge that by plying a defective vehicle they were in all probability likely to cause death of any student travelling in the bus. Yes, they could definitely be held liable for a rash or a negligent act, punishable under Section 304A of the IPC, if ultimately necessary evidence in that regard comes on record at the time of the trial.” 16. The aspect of vicarious liability on part of the present applicants being the Directors of company is also sought to be pressed into service by the prosecution. Hon’ble Apex Court in its recent judgment in the case of [Sanjay Dutt and Ors. Vs. The State of Haryana] has observed in para Nos.11 and 12. “11. It appears that the Courts below proceeded on the erroneous assumption that the three appellants herein being responsible officers of the company are liable for the alleged offence. While a company may be held liable for the wrongful acts of its employees, the liability of its directors is not automatic. It depends on specific circumstances, particularly the interplay between the director’s personal actions and the company’s responsibilities. A director may be vicariously liable only if the company itself is liable in the first place and if such director personally acted in a manner that directly connects their conduct to the company’s liability. It depends on specific circumstances, particularly the interplay between the director’s personal actions and the company’s responsibilities. A director may be vicariously liable only if the company itself is liable in the first place and if such director personally acted in a manner that directly connects their conduct to the company’s liability. Mere authorization of an act at the behest of the company or the exercise of a supervisory role over certain actions or activities of the company is not enough to render a director vicariously liable. There must exist something to show that such actions of the director stemmed from their personal involvement and arose from actions or conduct falling outside the scope of its routine corporate duties. Thus, where the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. There has to be a specific act attributed to the director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company. 12. At the same time, wherever by a legal fiction the principle of vicarious liability is attracted and a person who is otherwise not personally involved in the commission of an offence is made liable for the same, it has to be specifically provided in the statute concerned. When it comes to penal provisions, vicarious liability of the managing director and director would arise provided any provision exists in that behalf in the statute. Even where such provision for fastening vicarious liability exists, it does not mean that any and all directors of the company would be automatically liable for any contravention of such statute. Vicarious Liability would arise only if there are specific and substantiated allegations attributing a particular role or conduct to such director, sufficient enough to attract the provisions constituting vicarious liability and by extension the offence itself.” 17. Having regard to the aforesaid discussion, there is no material available on record worth framing the charge against the present applicants for an offence punishable under Section 304 of IPC. 18. The present Revision Applications therefore deserves to be allowed in part. The orders mentioned at Srl. Nos. Having regard to the aforesaid discussion, there is no material available on record worth framing the charge against the present applicants for an offence punishable under Section 304 of IPC. 18. The present Revision Applications therefore deserves to be allowed in part. The orders mentioned at Srl. Nos. (i) to (v) in paragraph 1 above are hereby quashed and set aside qua the offence punishable under Section 304 of the Indian Penal Code. The present applicants herein are ordered to be discharged so far as it relates to offence punishable under Section 304 of IPC. 19. Rule is made absolute to the aforesaid extent.