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2017 DIGILAW 1658 (PNJ)

RAKA GHIRA v. U. T. CHANDIGARH

2017-07-31

A.B.CHAUDHARI

body2017
JUDGMENT : A.B. Chaudhari, J. In the present petition, the petitioner has put to challenge the proceedings arising out of case FIR No.210 dated 24.7.2011, under Section 61/1/14 of the Punjab Excise Act (as amended and as applicable in UT Chandigarh), registered at Police Station Sector 11, Chandigarh and the consequential proceedings including charges framed against the petitioner. 2. In support of the petition, Learned Counsel for the petitioner submitted that a pure question of law is involved in the present petition and if the question is answered in favour of the petitioner, the proceedings in question would amount to abuse of process of law and consequently the power under Section 482 Cr.P.C. will have to be exercised. According to the Learned Counsel for the petitioner, even the pure question of law that is being raised in the present petition is no more res integra and has been decided by this Court at least in two decisions. She cited the two decisions which this Court rendered as under:- (i) Jarnail Singh and others v. State of Punjab 2008(3) RCR (Criminal) 749 (ii) Kamaljit Singh v. State of Punjab and others 2010(2) RCR (Criminal) 331 3. Learned Counsel for the petitioner submitted that perusal of the FIR itself shows that the alleged offence took place on 24.7.2011 inasmuch as the raid was conducted at the residential house of the petitioner wherein there are other members of the family having liquor licences in their favour and some bottles of IMF liquor were seized from the house. The crucial question, according to Learned Counsel for the petitioner, is that it has been categorically held that under the amended provisions of the Act which are in terms applicable to the UT Chandigarh, the police (CBI) does not have a power even to register FIR much less to prosecute any person. The reason, according to her, is that the power has been given to the Excise Officer in the cases where only liquor is involved. In other words, according to her, if there is an intoxicant other than liquor that is seized from the accused, then the police has got the power to register such offence. According to the Learned Counsel for the petitioner, however, in the instant case, even according to the prosecution IMFL bottles were seized from the house of the petitioner and not any intoxicant. According to the Learned Counsel for the petitioner, however, in the instant case, even according to the prosecution IMFL bottles were seized from the house of the petitioner and not any intoxicant. There is no allegation about the intoxicant other than liquor found in the raid. The offence allegedly took place after the amendment to the Act. Learned Counsel for the petitioner, therefore, submitted that this being a matter of jurisdictional issue and absence of authority in the police (CBI) to launch prosecution, the proceedings will have to be quashed as held by this court in the two decisions cited supra. 4. Per contra, learned counsel for UT Chandigarh opposed the petition and submitted that there is no need to interfere at this stage as the trial is on and, therefore, prayed for dismissal of the petition. 5. I have carefully considered the submissions made by learned counsel for the rival parties. 6. It is not in dispute that the FIR relates to the year 2011 and the trial is already on. In the ordinary course, this Court would not have interfered in its inherent jurisdiction at such a stage. However, I find that the question of law that has been raised in the present petition has already been decided by this Court in the aforesaid two reported decisions. It is not in dispute that the provisions of the amended Act are fully applicable to the UT Chandigarh where the offence is alleged to have taken place. In that view of the matter, it is seen that as per the ratio of the aforesaid two decisions, the police authorities of UT/CBI which lodged the FIR and filed the challan and is prosecuting the petitioner is sans any authority of law and the authority clearly was with the Excise Officer provided by the amended Act and not with the respondent police department. 7. Careful perusal of the above referred two decisions rendered by this Court, in my respectful agreement, show that the prosecution in question was launched in absence of authority in the respondent police department and therefore, the same is null and void and without authority of law. 8. I quote following paragraphs of the judgment in the case of Kamaljit Singh (supra) which read thus:- "6. 8. I quote following paragraphs of the judgment in the case of Kamaljit Singh (supra) which read thus:- "6. Learned counsel for the petitioner vehemently contended that in view of section 61(A) of the Punjab Excise Act, 1914 (in short, the Act),possession of liquor was no longer offence and only penalty could be imposed for the same. There is considerable merit in the contention. Section 61(A) was inserted in the Act vide Amendment Act No. 32 of 2006 notified on 25.8.2006 and so the said section was operative when the impugned FIR was registered. Section 61(A) of the Act is reproduced herein:- "61-A. Penalty for offences not triable by a court.- (1) Whosoever, in contravention of any provision of this Act, the rules framed thereunder, any notification issued or any order made or any license, permit or pass granted under this Act, imports, exports, transports, or possesses any liquor, shall alongwith liquor and means of transport, except the passenger buses, owned by the Central Government or the State Government or any of their undertaking, be detained by an Excise Officer, who shall make a report to the Assistant Excise and Taxation Commissioner, in-charge of the district and to the Deputy Excise and Taxation Commissioner, in-charge of the Division, within a period of twentyfour hours of such detention. The Excise Officer shall forward such liquor and the means of transport along with the necessary documents to the Deputy Excise and Taxation Commissioner incharge of the District. (2) On the receipt of the report referred to in sub-section (1), the Deputy Excise and Taxation Commissioner incharge of the Division, shall record the statements of the offender and the officers, concerned with the case, and release the offender. (3) The Assistant Excise and Taxation Commissioner incharge of the district, may impose the following penalties after providing the offender a reasonable opportunity of being heard in case a liquor detained is licit, on which the excise duty and other levies have been paid in the State of Punjab, namely :- (a) rupees five thousand in case of detection of such liquor upto two cases i.e. 18 bulk litres; and (b) rupees ten thousand in case of detection of such liquor exceeding more than two cases i.e. 18 bulk litres. (4) The Assistant Excise and Taxation Commissioner in-charge of the district, may confiscate the illicit liquor and may also impose the following penalties after providing the offender a reasonable opportunity of being heard in case the liquor detained is illicit, on which the excise duty and other levies have not been paid in the State of Punjab, namely:- (a) rupees twenty five thousand in case of detection of such liquor up to five cases i.e. 45 bulk litres; (b) rupees fifty thousand in case of detection of such liquor exceeding five cases i.e. 45 bulk litres, but not exceeding fifty cases i.e. 450 bulk litres; and (c) rupees one lac in case of detection of such liquor exceeding fifty cases i.e. 450 bulk litres. (5) If the penalty referred to in sub-section (4), is not paid within a period of one week from the date of the order, then the Deputy Excise and Taxation Commissioner in-charge of the Division shall pass a speaking order of confiscation of the means of transport and the liquor after giving an opportunity of being heard to the offender and the owner of the means of transport. In case the owners of the liquor and the means of transport are not available, then the order for confiscation may be passed by the Deputy Excise and Taxation Commissioner incharge of the Division by affording an opportunity of being heard to the offender, who has been caught with the goods. The confiscated liquor shall thereafter, be destroyed under the supervision of the Deputy Excise and Taxation Commissioner in-charge of the Division and an authenticated copy of the said order shall be supplied to the affected person free of cost. (6) The Deputy Excise and Taxation Commissioner in-charge of the Division, shall put to auction the confiscated means of transport with a period of thirty days from the date of the order of confiscation passed under sub-section (5). The amount received from auction after deducting the expenditure incurred on it, shall be adjusted towards the payment of penalty by the owner. The unrecovered amount of penalty, if any, shall be recoverable as arrears of land revenue." "7. Perusal of the aforesaid provision reveals that if a person is found in possession of liquor then penalty can be imposed on him in accordance with the provisions contained in section 61 (A) of the Act." "9. The unrecovered amount of penalty, if any, shall be recoverable as arrears of land revenue." "7. Perusal of the aforesaid provision reveals that if a person is found in possession of liquor then penalty can be imposed on him in accordance with the provisions contained in section 61 (A) of the Act." "9. Perusal of the aforesaid provision reveals that possession of liquor is not punishable under this provision. It is not the allegation of the prosecution that the petitioner had sold any intoxicant. Consequently, the petitioner is not covered by clause (a) of section 61(2) of the Act. The petitioner was merely found in possession of liquor which is categorically covered by section 61(A)(1) of the Act." 9. The scheme of the amendment which has been elaborated by another judgment in the case of Jarnail Singh (supra) also shows that the amendment was inserted by Amendment Act No.10 of 2003. That means, the amendment was applied from 2003 whereas offence in question is of 2011. By the said amendment, the distinction was made between the offences in respect of the intoxicants other than the liquor which would be triable by a court of law while the offence under the Excise Act would be adjudicated/decided by the Excise Department and its officers. That is what has been held in para 8 of the said judgment, which I quote hereunder:- "8. After amendment carried out vide Punjab Act No.10 of 2003 whereby Section 61 of the 1914 Act was amended a new Section 61-A was added, the scheme of the 1914 Act had undergone a change. After the amendment, a distinction was made with regard to the penalties for offences triable by a Court and penalties for offences not triable by a Court. In terms of Section 61(1)(aa) with effect from 2.5.2003, any import, export, transport or possession of any intoxicant other than liquor in contravention of any provision of the 1914 Act, rules, notification or order made thereunder or of any licence, permit or pass granted under the Act was punishable with imprisonment for a term as prescribed. In terms of Section 61(1)(aa) with effect from 2.5.2003, any import, export, transport or possession of any intoxicant other than liquor in contravention of any provision of the 1914 Act, rules, notification or order made thereunder or of any licence, permit or pass granted under the Act was punishable with imprisonment for a term as prescribed. Whereas the newly added Section 61-A after the amendment carried out vide Punjab Act No.10 of 2003, with effect from 2.5.2003, provided that whoever in contravention of any provisions of the 1914 Act or rules or notification or order or any licence, permit or pass granted under the Act inter alia imports, exports, transports or possess any liquor, shall along with liquor and means of transport be detained by an Excise Officer. The procedure to be followed after its detention by the Excise Officer has further been provided in the Section." 10. In view of the above legal position cited by this Court, this Court will have to follow the said reported judgments. In so far as the question about commencement of trial is concerned, I find that since it has been held that the filing of FIR/challan/charge against the petitioner itself is without any authority of law and void ab initio, the criminal case trial must be held to be the abuse of process of law. The following maxims would aptly apply:- "Debile fundamentum fallit onus", meaning thereby that when the foundation falls, every thing falls; and "sublato fundamento cadit opus"; meaning thereby, in case a foundation is removed, the superstructure falls." It is the duty of this Court to exercise inherent power under Section 482 Cr.P.C. in such an eventuality. 11. The delay in making the challenge to the prosecution at a late stage would not come in the way of the petitioner as the question is no more res integra and has been consistently decided by this Court about nonmaintainability of the prosecution. The continuance of such a trial would be an exercise in futility. In the result, the petition must succeed. The continuance of such a trial would be an exercise in futility. In the result, the petition must succeed. Hence, I make the following order:- ORDER (i) CRM-M-18837-2017 is allowed; (ii) Rule is made absolute in terms of the prayer clause, which reads thus:- "Petition under Section 482 Cr.P.C. and all other enabling provisions in this regard in furtherance and continuation of earlier petition bearing CRM-M-17667-2017 pending in this Hon'ble Court for 1.6.2017, humbly praying that this Hon'ble Court may be pleased to quash FIR No.210 dated 24.7.2011, registered under Section 61/1/14 of the Punjab Excise Act, 1914 (as applicable in Union Territory Chandigarh) (hereinafter referred to as Excise Act) at Police Station Sector 11, Chandigarh and all consequential proceedings arising therefrom including the Final Report/Challan under Section 173 Cr.P.C. dated 12.3.2012 (Annexure P-3); order taking cognizance dated 14.12.2012 (Annexure P-4) as well as order framing charge dated 25.9.2013 and charge sheet so framed dated 12.5.2014 (Annexure P-6) as the continuation of the impugned proceedings would tantamount to a gross abuse of the process of law and would result in a grave miscarriage of justice."