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1992 DIGILAW 35 (PAT)

Sita Ram v. State Of Bihar

1992-02-02

OM PRAKASH

body1992
Judgment OM PRAKASH, J. 1. On 18-8-1991, truck No. BHD 8814 loaded with 501 tins containing about 103 quintals of illicit molasses was intercepted by respondent No. 3. Excise Inspector, Jehanabad, on Gaya-Jehanabad Road in Bihar. The molasses and the truck were seized. The driver and Khaktsi of the truck were arrested and forwarded to the Chief Judicial Magistrate, Jehanabad, with a report dated 18-8-1991 (Annexure-2) and seizure list dated 18-8-1991 (Annexure-2 (a)) alleging contravention of Section 10. of the Bihar Molasses (Control) Act and Sections 47 (a), (f), (h) and 47-A of the Bihar Excise Act. On 25-8-91, District Collector, Jehanabad, issued a show cause notice (Annexure-1), to show cause as to why the molasses and truck be not confiscated under Sections 66 and 67 of the Bihar Excise Act. 2. Petitioner Sitaram has moved this Court on 12-9-1991 under Articles 226 and 227 of the Constitution of India for quashing the report] (Annexure-2) and the show cause notice (Annexure-1) on the ground that the molasses were being transported from Uttar Pradesh to West Bengal and hence neither the Bihar Molasses (Control) Act nor the Bihar Excise Act is applicable in the instant case. 3. Shri Rana Pratap Singh, learnel counsel for the petitioner referring to different provisions of the Bihar Molasses (Control) Act and the Bihar Excise Act, has urged that no offence is made out in the report dated 18-8-1991 (Annexure-2). In this connection he has referred to other Annexures, including Annexure-3 to the writ petition also. 4. Shri Singh has also referred to the case of State of West Bengal V/s. Swapan Kumar, AIR 1982 SC 349. It has been held in this case that if the F.I.R., prima facie discloses the commission of a cognizable offence, the investigation must go on. The Court has then no power to stop the investigation for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the F.I.R. does not disclose the commission of a cognizable offences, the Court would be justified in quashing the investigation on the basis of the information as laid or received. 5. On the other hand, if the F.I.R. does not disclose the commission of a cognizable offences, the Court would be justified in quashing the investigation on the basis of the information as laid or received. 5. On the other hand referirng to the case of State of Bihar V/s. P. P. Sharma, 1991 (2) PLJR 11, Shri Rakesh Kumar, learned junior counsel to G. P. VII, has argued that the Court has to look into the F.I.R. i.e. the report dated 18-8-1991 and its enclosures, Annexure-2 series alone to ascertain as to whether a prima facie case is disclosed therein. The Court should not rely on any other annexures like Annexure-3 or 5 to the writ petition for this purpose. 6. In P. P. Sharma case, the High Court relied upon annexures produced by the respondents in the High Court along with the writ petitions. By treating annexures and affidavits as evidence, the High Court pronounced the respondents to be innocent and quashed the proceeding. Then it was held by the Apex Court that where the F.I.R. and other material disclosed in the police reports show that prima facie offence is made out against the accused and the allegations, if taken as correct, disclose the commission of a cognizable offence by the accused persons, the High Court will be falling into grave error and be acting with patent illegality in quashing the criminal proceeding. The Supreme Court further held that appreciation of evidence is the function of the criminal Court. High Court cannot assume the jurisdiction and put an end to the process of the investigation and trial court provided under the law by converting itself into a trial Court by treating affidavit etc. produced by the defence and pronouncing the accused to be innocent. 7. Shri Rakesh Kumar has further submitted that Annexure-3, allotment order, referred to by the learned counsel for the petitioner itself shows that condition No. 3 thereof has been violated by the petitioner (which lays down that allotted molasses would not be sold for distilation to other State i.e. West Bengal). He has further contended that the petitioner has filed Annexure-5 after making interpolation in its date. He has further contended that the petitioner has filed Annexure-5 after making interpolation in its date. In such circumstance this Court while exercising its discretionary jurisdiction under Articles 226 and 227 of the Constitution of India may not exercise its such jurisdiction in favour of the petitioner who has not come to this Court with clean hands. 8. Shri Rana Pratap Singh has submitted that digit denoting month in the date of Annexure-5 has simply be n changed from Devnagri digit into English digit. 9. The molasses seized have been seized while they were being taken on the. seized truck, registered and insured in Bihar, on Gaya Jehanabad Road in the State of Bihar. Prima facte, provision of Section 4 of the Bihar Molasses (Control) Act, 1947 to the effect that no molasses produced in the State nor any molasses held by the stockists in the State, shall, without the permission of the Controller, be moved by rail, road or river from any place in the State to any other place therein has been contravened. The report or any enclosure thereof does not show that the molasses seized were produced outside the State of Bihar. The violation of such provision is punishable under Section 10 of the Bihar Molasses (Control) Act. 1947. If the petitioner has any material to show that these molasses were not produced in the State of Bihar, he may produce such material before the Investigating Officer/the Trial Court. As laid down in the case of P. P. Sharma, this Court cannot look into or take into consideration Annexure-3 to declare the petitioner to be innocent by assuming the role of the trial Court. 10. Under Section 47 (f) of the Bihar Excise Act, 1915 , a person who has in possession any material whatsoever for the purpose of manufacturing any intoxicant other than Tari, is liable to punishment. Enclosures to the report dated 18-8-1991 show that the molasses seized are used in manufacturing of spirit. Thus primal facie possession of molasses is an offence under such provision. The matter regarding declaring molasses by the State Government by notification in the official gazette to be an intoxicant for the purpose of the Act may be looked into in course of investigation and trial. 11. Thus primal facie possession of molasses is an offence under such provision. The matter regarding declaring molasses by the State Government by notification in the official gazette to be an intoxicant for the purpose of the Act may be looked into in course of investigation and trial. 11. Referring to Section 67 of the Bihar Excise Act, Shri Ranal Pratap Singh has argued that the case arising out of the report dated 18-8-1991 is before a Judicial Magistrate for trial and decision as to whether anything is liable to confiscation under Section 66. The judicial Magistrate, and not the Collector is competent to order confiscation if an occasion arises. The Collector is vested with the jurisdiction to confiscate under sub-section (2) of Section 67 when the offender or the person entitled to possession is not known or cannot be found. I find it difficult to agree. Threre is nothing to show that the petitioner has appeared before the Collector or he has been found by him. 12. In view of the above, I am of opinion that it is not a fit case in which the Court should exercise its discretionary power under Articles 226 and 227 of the Constitution of India which is to be exercised sparingly. 13. In the result, this writ petition is dismissed.