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Himachal Pradesh High Court · body

2002 DIGILAW 44 (HP)

STATE OF H. P. v. BHIM SINGH

2002-03-06

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J. :- This petition under Sections 397. 401 read with Section 482 of the Code of Criminal Procedure arises out of the orders of the learned Sessions Judge. Sirmaur District at Nahan dated 19th July. 2001. 2. It appears, on 13th April. 2001 one truck No.HP-18-4524 was found stationed in front of liquor shop L-14 at Naina Tikar. That truck was checked by the Excise Inspector Kuldeep Kumar and it was found that the truck was loaded with 600 boxes of country Liquor (Sirmour No.l). Excise Inspector Kuldeep Kumar telephonically informed the police. On the receipt of the message, police officials came to Naina Tikar. Six hundred boxes of the liquor found in the truck, were taken into possession. The driver of the truck could not produce any document, permit or pass to cam such liquor. It was the case of the prosecution that the driver could only produce four passes for transporting 325 boxes. It was the further case of the prosecution that this liquor was being illegally transported to Naina Tikar from the liquor vend L-13 of M/s. Mukul Kumar and Company. Kala Amb. Out of the 600 boxes there was a pass to earn 325 boxes of Country Liquor from L-13 Kala Amb to L-14 Rajgarh. L-14 Nehripur. L-14 Hebal and L-14 Shari. On the next day i.e. 14th April. 2001. Bhim Singh, owner of the respondent Company, approached the Station House Officer at Pachhad. where the case was registered, and represented the seized liquor belonged to his company. He produced photocopy of a permit to carry 600 boxes of liquor. He complained that the Excise Officer had forcibly unloaded the liquor from his truck. 3. It is not disputed that Bhim Singh is a Liquor Contractor with L-) - licence in the name and style of M/s. Bhim Singh ard Company at solan. On the receipt of this complaint, the matter was investigated by the police and it was found that liquor under the permit produced by Bhim Singh was Ioa3ed in truck No.HP-11-3099 on 13th April. 2001 at 4.15 PM. Whereas, the liquor which was seized at Naina Tikar was found in truck No. HP-18-4524 at about 11.30 A.M. It was also found that the 600 boxes of liquor which were detected from Truck No. HP-18-4524 by the Excise Officer belong to M/s. Mukul Kumar and Company. L-13. 2001 at 4.15 PM. Whereas, the liquor which was seized at Naina Tikar was found in truck No. HP-18-4524 at about 11.30 A.M. It was also found that the 600 boxes of liquor which were detected from Truck No. HP-18-4524 by the Excise Officer belong to M/s. Mukul Kumar and Company. L-13. Kala Amb and the documents produced by Bhim Singh were false and fabricated. In the circumstances. Bhim Singh was also made accused in the case. It is the further case of the prosecution that M/s. Bhim Singh and company of Solan and M/s. Mukul Kumar and Company. Kala Amb. conspired to off track the investigation and it was pursuant to this conspiracy that Bhim Singh produced forged documents claiming the liquor. 4. In the meanwhile. Bhim Singh approached the Court of Sub Divisional Judicial Magistrate. Rajgarh for the release of the liquor. This application was rejected by the learned Magistrate. 5. Dis-satisfied. Bhim Singh approached learned Sessions Judge in revision. This petition was allowed and seized liquor was directed to be released to M/s. Bhim Singh and Company on furnishing bank guarantee in the amount of Rs. 1.50.000-. 6. Aggrieved. State is in revision. 7. I have heard Mr. Sandeep Kaushik. learned Assistant Advocate General, for the petitioner-State and Mr. M.S. Chandel. learned counsel for the respondent. 8. Mr. Kaushik urges that the release order was made by the learned Sessions Judge without appreciating the material on record. He submits that Ms. Bhim Singh and Company was not the owner of j the liquor which was found in the offending truck and therefore, it could not be released to Bhim Singh. He further submits that this release order will adversely effect the prosecution case. The impugned orders show that Bhim Singh was the owner of the liquor. He further submits that faced with the situation in which Mukul Kumar and Company were. Mukul Kumar had no option but to deny the ownership of the seized liquor. Merely because Mukul Kumar denies his ownership would not mean that the respondent was the owner of the liquor which was seized at Naina Tikar. 9. Taking into consideration the circumstances in its entirety and the stand of the prosecution, it will be fair and reasonable to direct j the sale of the seized liquor by public auction. 10. I. accordingly, allow this petition. 9. Taking into consideration the circumstances in its entirety and the stand of the prosecution, it will be fair and reasonable to direct j the sale of the seized liquor by public auction. 10. I. accordingly, allow this petition. The orders of the learned Sessions Judge dated 19th July. 2001. releasing the liquor in question to respondent Bhim Singh and company is set aside. It is directed that the seized liquor shall be sold in an open auction by the concerned Excise Office on a date to be fixed by him. The respondent shall be entitled to bid in that auction. The reserve price for the auction of this liquor shall be fixed by the Excise commissioner after taking into consideration the price of the liquor at which it was available to the licensee in the District of Sirmaur after adding government taxes and the other expenses. 11. Mr. Chandel. learned counsel for the respondent, states that the Excise Licence of the respondent shall expire on 31st March. 2002 and. therefore, the auction may be held before that date. The requisite being reasonable is allowed. The auction shall be held on or before 22nd March. 2002. 12. The amount realised from the auction shall be deposited in fixed deposit with the Nationalised Bank by learned Sessions Judge. The release of the amount to the part concerned shall abide ultimate orders which may be passed by the competent Court taking into consideration relevant provisions of the Code of Criminal Procedure j and Section 78 (2) of-the Punjab Excise Act as applicable to the State of Himachal Pradesh, if so warranted on the merits of the case. 13. The revision petition is accordingly disposed of. Cr. M.P. No. 510 of 2001. 14. No order, as the main petition has been disposed of. The interim stay granted on 24.12.2001 stands vacated. The application is disposed of. Dasti copy on usual terms.