Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 1063 (MP)

Gajendra Singh Bhadoria v. State of M. P.

2016-11-23

ANAND PATHAK

body2016
ORDER 1. Heard finally, with consent. 2. Quashment of FIR registered vide Crime No.164/2016 for offence punishable under sections 34 and 42 of the M.P. Excise Act, 1915 registered at PS Daboh, District Bhind along with all consequential proceedings have been prayed by the petitioner by way of filing the instant petition under section 482 of CrPC. 3. As per the prosecution story; on 31.7.2016, Police Constable of PS Daboh while making surprise inspection at Tahsil Lahar got the clue about the sale of liquor without permission in the area. On search, he found one co-accused Arvind Kumar Tiwari in possession of 30 quarters of country made liquor, thus arrested him and while preparing the memo under section 27 of the Evidence Act seized the country made liquor from his possession. The co-accused has referred the name of present petitioner who happens to be a shop owner of the liquor and having licence to sale the liquor. He was arrested and brought to police station; wherein, all consequential proceedings have been followed. On the basis of statement of the co-accused, present petitioner has also been implicated and investigation is going on. 4. Learned counsel for the petitioner by filing this petition has raised three fold grounds. First and foremost ground he raised is in respect of bar under section 61 of the M.P. Excise Act, 1915 (for short “the Act”). According to him, section 61 of the Act has been amended with effect from 22.8.2014 and after that no Court can take cognizance of an offence punishable under section 34 of the Act for contravention of any condition of the licence, permit or pass, except complaint or report of the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorised by the Collector in this behalf. According to him, no authorization has been given by the Collector to any Excise Officer so as to investigate the matter against the petitioner. According to him, even if, the petitioner was selling the liquor through co-accused (although denied vehemently) even then it cannot be a breach of condition of licence and unless the Collector or on his authorization, any Excise Officer files a complaint (private complaint) or report (police report) then only the cognizance can be taken by the Magistrate. According to him, even if, the petitioner was selling the liquor through co-accused (although denied vehemently) even then it cannot be a breach of condition of licence and unless the Collector or on his authorization, any Excise Officer files a complaint (private complaint) or report (police report) then only the cognizance can be taken by the Magistrate. Here in the present case, when the case has not be instituted at the instance of the Collector or his authorised representative nor Report has been submitted by the Collector or his representative, no case is made out against the petitioner because if the charge sheet will be filed by the police authorities then same shall be hit by section 61 of the Act. 5. Another ground of contest is of implication of the petitioner on the basis of memo prepared under section 27 of the Evidence Act. According to counsel for the petitioner, statement made by the co-accused under section 27 of the Evidence Act cannot be read into evidence as per provisions as contained in section 25 of the Evidence Act. It can, at best, be taken into consideration for the recovery purpose only. 6. Another ground of contest for the petitioner is on the merit itself; wherein, he contended that he is a legal vendor and selling liquor on the strength of permit/licence duly given to him by the Excise Department, therefore, plain reading of FIR itself does not disclose any cause of action against the present petitioner. 7. On the other hand, learned counsel for the State on the basis of case diary and with the assistance of Additional District Excise Officedr Shri Sunil Bhatt opposed the prayer made by the petitioner by submitting that on the information received, the constable has rightly acted upon and the person who was selling the liquor has named the petitioner, as the person who has given him the liquor for sale, therefore, the present petitioner has rightly been implicated in the case. According to them, the FIR has rightly been registered against the petitioner on the basis of statement as made by the co-accused; wherein, name of petitioner has been referred. They prayed for dismissal of the petition. 8. Heard learned counsel for the parties and perused the case diary/record. 9. According to them, the FIR has rightly been registered against the petitioner on the basis of statement as made by the co-accused; wherein, name of petitioner has been referred. They prayed for dismissal of the petition. 8. Heard learned counsel for the parties and perused the case diary/record. 9. The petitioner has been put to investigation on the basis of statement made by the co-accused under section 27 of the Evidence Act. The case has been registered against him on the complaint of a Police Constable. Newly amended section 61 of the Act reads as under : “61. Limitation of prosecution. -- (1) No Court shall take cognizance of an offence punishable -- (a) under [section 34 for the contravention of any condition of a licence, permit or pass granted under this Act, section 37], section 38, section 38 A, section 39, except on a complaint or report of the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorised by the Collector in this behalf; (b) under any other section of this Act other than section 49 except on the complaint or report of an Excise Officer or Police Officer.. (2) Except with the special sanction of the State Government no Judicial Magistrate shall take cognizance of any offence punishable under this Act, or any rule or order thereunder, unless the prosecution is instituted within six months from the date on which the offence is alleged to have been committed.” 10. Perusal of said section reflects that a complaint is to be filed by the Collector or his authorised Officer or on report as the case may be. Here in the present case, admittedly neither the complaint has been made by the Collector to the police nor in the form of private complaint to the competent criminal Court nor any report has been sent by the Collector or any authorised officer on his behalf. Complaint has been defined under section 2(d) of CrPC which reads as under : “2(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.” 11. Complaint has been defined under section 2(d) of CrPC which reads as under : “2(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.” 11. Meaning thereby, if a person is found to be flouting the licence conditions and is required to be prosecuted then the private complaint has to be filed by the Collector or an Officer authorised by the Collector as contemplated in section 61 of the Act then only prosecution can be maintainable against any person who is having a licence. In some special circumstances, power to file a private complaint has been given to a competent authority/designated officer and therefore, complaint in any manner should have been filed by the Collector or his authorised Officer as per section 61 of the Act. Report regarding contravention of any of the conditions of licence could have been made by the Collector or an Excise Officer while registering an offence by competent police station or Police Station (Excise). Therefore, the police may exercise the power to register the FIR provided the said report is made by either Collector or any other Officer authorised in this behalf by the Collector. Here in the present case, report is admittedly not by either Collector or other Officer authorised by him, therefore, the prosecution against the present petitioner is against section 61 of the Act. 12. Learned counsel for the State along with officer present, categorically submitted that case has not been referred to the District Excise Officer nor any permission has been sought from the Collector/his authorised Officer to file the complaint and the report, nor the prosecution has registered the case on zero crime number and then referred it to the concerned police station (Excise) for further investigation and for further enquiry. 13. In the instant case,the prosecution in respect of offence under section 34 of the Act has been initiated at the instance of police and therefore,learned Magistrate could not have taken cognizance of the offence in view of the provisions embodied in section 61(1)(a) of the Act. The power of authorisation by the Collector is not absolute, it is circumscribed. It is not open to him to authorise any officer. The power of authorisation by the Collector is not absolute, it is circumscribed. It is not open to him to authorise any officer. The said view is further supported by the view expressed earlier by this Court in the matter of Shankarlal and others v. State of M.P. [ 1990 JLJ 782 ], and Vijay Kumar and Rajendra Kumar and Co. v. State of M.P. [1987(II) MPWN 54], as well as Gomti Prasad and others v. State of M.P. [1976 MPWN 232]. 14. With the amendment Act of 2014, M.P. Excise (Amended Act), 2014 has included section 34 into the ambit of section 61 of the Act. Thus, intention of legislature is clear wherein the offence coming under section 34 of the Act also are to be treated and prosecuted in a manner as provided under section 61 of the Act. In the light of sections 4 and 5 of the CrPC, potency and effect of section 61 becomes more vigorous because it is settled in law that Special Law prevails over General Law. Here the previsions of M.P. Excise Act,1915 would prevail over the provisions of CrPC. Another ground of contest of the petitioner is also worth consideration; wherein, the petitioner has raised the ground of reliability of statement made by co-accused under section 27 of the Evidence Act. According to him; section 27 of the Evidence Act only deals in respect of recovery and memo under section 27 is admissible only in respect of recovery because section 25 of the Evidence Act clearly prohibits the use of confession made to the police officer to prove against the accused of any offence. The said view is supported by case of Suresh Upadhyay v. State of M.P. and another [ 2014(II) MPWN 4 =2014(1) MPLJ (Criminal) 575], as well as Rajveer Singh v. State of M.P. [2015(1) MPLJ (Criminal) 337. 15. The memo under section 27 of the Evidence Act cannot be used to implicate the present petitioner treating the statement made by the co-accused as admissible piece of evidence. 16. 15. The memo under section 27 of the Evidence Act cannot be used to implicate the present petitioner treating the statement made by the co-accused as admissible piece of evidence. 16. Perusal of the documents suggest that petitioner is having valid permit/licence issued by the District Excise Officer (on behalf of the Collector, District Bhind) and same is placed with the petitioner, therefore, considering the fact that petitioner is having a valid licence and right to sale the liquor, it cannot be assumed that petitioner has committed any offence under section 34 (or 42 of the Act) as there is no breach of any condition of licence, granted in favour of the petitioner, in the present set of facts. 17. Considering the peculiar facts and circumstances of the case, the case of the petitioner is covered under the illustration/categories referred by Hon’ble apex Court in the case of Smt. Nagawwa v. Veerann Shivalingappa Knojalgi and others [ AIR 1976 SC 1947 ], and State of Haryana and others v. Ch. Bhajan Lal and others [ AIR 1992 SC 604 ]. The apex Court in the case of Smt. Nagawwa (supra), has referred the illustrative cases wherein the proceedings against the accused can be quashed or set aside. These are illustrative in nature and are as under : “(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.” 18. Whereas, in the case of Ch. Bhajan Lal (supra), Hon’ble apex Court in para 108 of the judgment has given following illustration of cases, wherein, the FIR/criminal proceedings can be quashed : “108. Whereas, in the case of Ch. Bhajan Lal (supra), Hon’ble apex Court in para 108 of the judgment has given following illustration of cases, wherein, the FIR/criminal proceedings can be quashed : “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulas and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engraved in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 19. The case of the petitioner is squarely covered under the illustration 1,2,4 of the case of Smt. Nagawwa (supra), and illustrations No. 5 and 6 of the case of Ch. Bhajan Lal (supra). 20. Resultantly, present petition of the petitioner is allowed and FIR registered vide Crime No.164/2016 for offence punishable under sections 34 and 42 of the M.P. Excise Act, 1915 registered at PS Daboh, District Bhind and all consequential proceedings thereto are hereby quashed. Petition stands allowed and disposed of.