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2006 DIGILAW 1466 (RAJ)

Mahammad Ishaq v. State of Rajasthan

2006-05-03

GOPAL KRISHAN VYAS

body2006
Judgment Gopal Krishan Vyas, J.- The present bail application has been filed under Section 438, CrPC by the petitioners. It is the case set out by the petitioners that they apprehend arrest by the police in connection with FIR filed by complainant Yunus Tak with Kotwali Police Station, Bikaner alleging offences under Sections 452, 323, 147, 148 and 149, IPC. The complainant is carrying on business of the sale of liquor at his shop in the close vicinity of the temple of Lakshminath Ji. Learned Counsel for the petitioners states that irony is that the complaint has been filed by the liquor shop owner to harass the citizens of the area and the local inhabitants are facing hoodlamism indulged by the wine shop-keeper. 2. It is contended by learned Counsel for the petitioners that the locality in which the petitioners are living is thickly populated place of the city and the mohalla residents have filed representation to the authorities for checking the nefarious activities of the anti-social elements in the area and, therefore, to disgrace the residents in the area the liquor vendor has filed this false FIR. Learned Counsel for the petitioners contends that the local police are sheltering the wine shop-keeper and in the locality there is terror of the complainant and wine consumers. He states that it has become difficult for women and children to step out on road after dusk. Learned Counsel for the petitioners contends that the teen-agers are being victimized at the hands of the wine shop owner. It is submitted that the representations of the local residents have not been considered by the authorities and, on the contrary, false FIR has been filed against, the petitioners to terrorise them not to interfere in the liquor business in the locality. 3. In this case, vide order dated 10.02.2006, while issuing notice to the Superintendent of Police, Bikaner it was desired that action taken upon the representation of the residents may be apprised to the Court alongwith necessary report and norms/parameters laid down for permitting sale of liquor in a particular area. In pursuance of the said direction, learned Public Prosecutor submits an additional affidavit of deponent Sumer Singh, Sub-Inspector, Police Lines, Bikaner alongwith certain documents. 4. In pursuance of the said direction, learned Public Prosecutor submits an additional affidavit of deponent Sumer Singh, Sub-Inspector, Police Lines, Bikaner alongwith certain documents. 4. It is stated by way of additional affidavit that licence for the liquor shop was issued by the District Excise Department, Bikaner and no permission or opinion for opening up the shop is asked for. The deponent states that the entire exercise for issuing the licence for the liquor shop is carried out by the Excise Department. It is stated that licence for opening the liquor shop is granted following the Excise Rules and in the process of issuing such licence no permission or recommendation for opening such shop in a particular area is obtained from police. The deponent further states that when complaints are made with regard to the activities of anti-social elements, the police take appropriate action including the action under Section 151, CrPC and 34 of the Police Act. With regard to the representation made against shop keeper Yunus Tak, it is stated that on the complaint being made action has been taken under Sections 107, 116(3), CrPC for maintaining peace and tranquility. It is lastly informed by way of the aforesaid additional affidavit that the Superintendent of Police, Bikaner has addressed a letter to the District Excise Officer, Bikaner for shifting of the liquor shop of Yunus Tak to any other place. 5. Alongwith this affidavit, certain documents with regard to action taken have been submitted by the Police Kotwali including communicated dated 23.02.2006 sent under the signature of the Superintendent of Police, Bikaner in which it is submitted that Yunus Tak is a licensee and there is a quarrel going on in between him and neighbourers and certain cases were also registered in respect of their quarrel. It is submitted that licence was issued on 01.04.2005 and no FIR has been filed by any of the residents of the mohalla. It is however, pointed out in the report that the local public is also supporting the liquor shop owner and the said shop was allotted by the Excise Department and no opinion was sought from the Police Station. It is also submitted in the report that there is no role of the police department in issuing the licence. It is however, pointed out in the report that the local public is also supporting the liquor shop owner and the said shop was allotted by the Excise Department and no opinion was sought from the Police Station. It is also submitted in the report that there is no role of the police department in issuing the licence. It is submitted that as per the report of the Excise Department the shop was allotted in accordance with Section 75 of the Excise Act., 1956. The said shop is said to be 230 mtr. distant from the temple of Lakshminath Ji and, since upon inspection the Excise Inspector found a primary school of children within 200 mtr. of the shop site, there is recommendation of the Excise Inspector at the time of granting the licence that licence may be granted for opening the shop till one hour prior to opening of the school in the day and then re-opening the shop one hour after closure of the school for the day. It is submitted that upon this report given by the Excise Inspector the licence was granted. It is further submitted that as per the report of the Excise Department the said shop is running at the same place for last 25 years and, if any violation is committed by the shop keeper, the Excise Department is responsible and the police are not responsible. Certain documents obtained form the Excise Department have also been placed on record alongwith this report. 6. For issuing the licence, first of all, report is called from the Excise Inspector, Circle Bikaner City, which is on record. As per the said inspection report, the inspection was made on 31.03.2005 by the Inspector and as per the report, Anand Niketan Primary School is only 30-40 mtr. distant from the liquor shop site which is less than prescribed 200 mts. distance and there is note for recommendation that even if the school is situated just 30-40 mts. distant from the shop site permission may be granted on the condition that the shop may be opened but should be closed one hour before the opening of the school for the day till one hour after the closure of the school. It is further reported that the temple of Lakshminath Ji is 230 mtr. distant from the shop site. distant from the shop site permission may be granted on the condition that the shop may be opened but should be closed one hour before the opening of the school for the day till one hour after the closure of the school. It is further reported that the temple of Lakshminath Ji is 230 mtr. distant from the shop site. Alongwith the report, maps are also given for the proposal of opening the shop. 7. This inspection report was prepared on 31.03.2005 whereas on 19/21 March, 2005, before the inspection, the District Excise Officer, Bikaner accorded permission and allowed the licensee to deposit the entire licence fee and, vide this communication, he has given permission to open the shop with effect from 01.04.2005. It is further stated in this communication that 4 copies of the map mentioning the place where the licensee wanted to open the shop may be submitted through the Excise Inspector. Copy of this communication was also sent to the Excise Inspector for submitting his report. 8. It is indeed strange that before the inspection report was sought after according sanction for opening the liquor shop. As per the inspection report dated 31.03.2005, the school is situated within the prohibitory distance and despite that the sanction was accorded though, the Inspector recommended conditions for opening the shop in close vicinity of the school. Thus, obviously according to norms the licence could not have been issued for opening the liquor shop in such close vicinity of the school of children. 9. Learned Counsel for the petitioners, while showing photographs, contend that the shop has not been opened at the place where the Excise department granted sanction for opening the shop. It is contended that the photographs clearly reveal that the shop is not situated as the map sanctioned by the Excise Department. 10. Another additional affidavit is filed by deponent Ramand Meena, District Excise Officer, Bikaner wherein, at Para 6, the deponent admits that complainant Yunus Tak has changed the door of the shop and it has been changed from south to east in breach of the conditions and, therefore, he has forwarded the case to the Excise Commissioner, Udaipur. He has also submitted copy of the FIR No. 6/2006 for the perusal of the Court alongwith the additional affidavit. He has also submitted copy of the FIR No. 6/2006 for the perusal of the Court alongwith the additional affidavit. It is stated by the deponent that the District Excise Officer vide letter dated 08.03.2006 issued instruction for transfer of the location of the shop within a period of 15 days. 11. The District Excise Officer, in his additional affidavit, submits that complainant Yunus Tak filed a civil suit in the Court of Civil Judge (Jr. Dn.), Bikaner and the Civil Court grated temporary injunction in his favour vide order dated 01.04.2006 with direction that the defendants are restrained from taking harassing action against him and supply of wine be made to him as per rules. Copy of the order of the Civil Court has also been filed with the additional affidavit. 10.12. It is contended by learned Counsel for the petitioners that when this Court is seized with the matter, the civil Court ought not to have interfered in the matter: but, knowingly the Civil Court passed order dated 01.04.2006. It is submitted that from the perusal of the report dated 26.02.2006 it is clear that the Superintendent of Police has opined that the said shop may be transferred from the present location or the licence may be cancelled. It is contended that if it was so the Excise Department is under obligation to consider this aspect of the matter. 113. It is very material to mention here that in pursuance of the order passed by this Court on 10.02.2006, the Sub-Inspector of Police Sumer Singh sent a communication to the District Excise Officer, Bikaner to ascertain the norms and parameters for issuing the licence. The Excise Inspector, Circle Bikaner City gave his report on 10.02.2006 in which it is stated that the said shop is sanctioned by the Excise Department under Section 75 of the Excise Act and the site of the shop is 230 mtr distant from the temple of Lakshminath ji and though there is primary school situated within 200 mts. The Excise Inspector, Circle Bikaner City gave his report on 10.02.2006 in which it is stated that the said shop is sanctioned by the Excise Department under Section 75 of the Excise Act and the site of the shop is 230 mtr distant from the temple of Lakshminath ji and though there is primary school situated within 200 mts. but a prohibitory note has been put on the licence; meaning thereby, as per the Excise Inspector there was no violation of the provisions of the rules; but, strangely enough, the District Excise Officer, Bikaner in his additional affidavit dated 01.05.2006 has deposed that the shop-keeper Yunus Tak has breached the conditions and changed the door from south to east and, therefore, FIR has been filed against Yunus Tak. Manifestly, the Excise Inspector has sent his report dated 20.02.2006 without even inspecting the site. In the present case, as aforenoted, the Excise Officer granted permission to open the wine shop earlier than the actual inspection of the site was carried out by the Excise Inspector. These are, in fact, circumstances that need be looked into. 114. Now, as per the additional affidavit filed by the District Excise Officer, Bikaner the licensee has breached the conditions of licence and, after registering case against him, the matter is said to have been forwarded to the Excise Commissioner, it is expected of the Excise Commissioner, Rajasthan, Udaipur that the matter is thoroughly examined and appropriate orders are issued. .15. In the matter, there was specific direction issued by this Court on 10.02.2006, however, the Civil Court also issued temporary injunction in favour of the wine shop-keeper plaintiff Yunus Tak. The Civil Court acted in its jurisdiction but, exercise of jurisdiction must be with observance of judicial .propriety. Nothing is intended to be said against the order passed by the Civil Court and the Civil Court has also categorically observed that the plaintiff must abide by the orders that follow from the High Court. However, when a matter is already under consideration in some judicial proceedings before the higher Court the lower Court is expected to be slow to pass any order lest there should be any occasion for conflict in judicial directions being issued by two Courts though, of course, the directions of the higher Court automatically supercedes any order passed by the lower Court. It may have been that the Excise Department did not apprise the civil Court sufficiently about the orders of the High Court. Therefore, the Excise Department is directed to apprise the Civil Court in the suit proceedings the entire facts; and, if any citizens of the locality in question are also aggrieved, the Civil Court shall permit them to intervene in the matter because ultimately, if at all, any interest is going to be hurt of any third party by sale of wine in a particular area, it is always the peace and tranquility of he public at large in the said area. 116. In the facts and circumstances of the case, I am inclined to grant bail to the petitioners under Section 438, CrPC. .17. Accordingly, the application under Section 438, CrPC is allowed. In the event of arrest of the petitioners (1) Mohammed Ishaq S/o Ibrahim and (2) Mohammed Raiees S/o Mohammed Ishaq in connection with FIR No. 06/2006, Police Station Kotwali, Bikaner by the 1.O/S.H.O., they shall be released on bail provided each of them executes a personal bond in the sum of Rs. 10,000/-and furnished one surety in the like amount to the satisfaction of the investigating officer on the following conditions:- .(1) that they shall makes themselves available for interrogation by any Police Officer as and when called upon to do so; .(2) that they shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the police or Court: .(3) that they shall not leave India without the prior permission of the Court. 118. The bail bonds of Petitioner No. 2 Mohammed Raiees who is said to be minor shall be submitted by his natural guardian father Mohammed Ishaq.