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2017 DIGILAW 2094 (RAJ)

Mohanlal Teli v. State of Rajasthan

2017-09-19

PANKAJ BHANDARI

body2017
JUDGMENT : Pankaj Bhandari, J. 1. The matter pertaining to grant of bail and the rider imposed in Clause (b) of Sub-Section 3 of Section 49 was taken up for consideration and counsels appearing for different petitioners in matter pertaining to Excise Act were heard at length. 2. It is argued by the counsel for the petitioners in different bail applications that Clause (b) of Sub-Section (3) of Section 49 though is pari-materia to Section 37 of the NDPS Act but since the offence punishable under the NDPS Act is punishable with a sentence which is of 10 years and in some cases which may extend to 20 years, whereas, the maximum sentence provided under the Rajasthan Excise Act for being in possession of excess liquor ranges from 3 years to 5 years, therefore, liberal approach should be adopted in excise matters. 3. It is also contended that the drivers and the cleaners of the truck or vehicle who are low paid employees generally work on the directions of their owner/transporter and are generally illiterate and are not having knowledge as to whether the liquor is being transported in accordance with a valid permit or otherwise. 4. It is also contended that at times the owner of the vehicle is also not aware that his vehicle is carrying excisable article sans permit as the trucks are generally booked by the transporters and the owner is generally not aware about the contents of the consignment booked. 5. Learned Public Prosecutor has contended that the rider of Clause (b) of Sub-Section (3) of Section 49 would be applicable if the recovered liquor is more than 50 bulk ltrs. or the offence falls under Section 54-B, 54-D or 56 of the Rajasthan Excise Act and the Court can only grant bail on being satisfied that there are reasonable grounds for believing that the applicant is not guilty and that he is not likely to commit such offence while on bail. 6. I have considered the contentions. 7. The thrust of the argument of the Public Prosecutor is that the language used in Clause (b) of Sub-Section (3) of Section 49 is pari-materia with Sec. 37 of the NDPS Act. As to whether the wording being pari-materia the same has to be applied with same severity is being dealt with by the Court. 8. 7. The thrust of the argument of the Public Prosecutor is that the language used in Clause (b) of Sub-Section (3) of Section 49 is pari-materia with Sec. 37 of the NDPS Act. As to whether the wording being pari-materia the same has to be applied with same severity is being dealt with by the Court. 8. To properly appreciate the intent of the Legislation it would be appropriate to deal with the background objects and reasons for the enactments. The preamble of the Rajasthan Excise Act, 1950 reads as under :- "An Act to enact for Rajasthan a uniform law relating to the import, transport, manufacturer, sale and possession of intoxicating liquor and intoxicating drugs and to provide for certain other matters hereinafter appearing." 9. In 1969 the Rajasthan Prohibition Act was enacted and the operation of the Rajasthan Excise Act 1950 was suspended. The Prohibition Act thus prevailed over this Act. On failure of the police to enforce prohibition and due to heavy loss of revenue the Rajasthan Prohibition Act 1969 was repealed by the Rajasthan Act No. 13 of 1981 with effect from 11.08.1981. The principle argument advanced by the State Government for bringing the Rajasthan Prohibition Act repealing Act 1981 was stated to be "heavy losses in revenue to the State." 10. One of the purpose of the Act was to raise revenue. The preamble indicates the object of the Act as follows-: (a) to consolidate and amend the existing law. (b) to regulate and prohibit various activities and dealings with liquor. The object behind this Act is mainly centred around the collection of excise duty and to raise the revenue of the State. 11. The Rajasthan Excise Act was amended in 2007 prior to the amendment in Section 49, for the purpose of bail offences under Section 54 and 56 of the Act were considered as non-bailable and rest of the offences under the Act were bailable. Modified application of certain provisions of Code, came into effect from 06.06.2007. A proviso to Section 54 was also inserted from the same date and the punishment for offence under Clause (a) of Section 54, where, quantity of liquor exceed 50 bulk Ltrs. was enhanced and the same has now been made punishable with imprisonment for a term which shall not be less than 3 years but which may extend to 5 years and with fine of Rs. was enhanced and the same has now been made punishable with imprisonment for a term which shall not be less than 3 years but which may extend to 5 years and with fine of Rs. 20,000/- or ten times of the loss of excise duties whichever is higher. 12. Prior to the amendment there was no restriction whatsoever on grant of bail and the provisions of Cr.P.C. were applicable. After the amendment the power of Section 438 Cr.P.C. has been curtailed for offences falling under the Proviso to Section 54 or under Section 54-B, 54-D and 56 of the Act, a rider on grant of bail to persons in custody in relation to offences under the aforesaid Sections has also been inserted. As per amended Sub-Clause (3) of Section 49 a Court can grant bail only after giving opportunity to the learned Public Prosecutor to oppose such release and if the learned Public Prosecutor opposes, the Court should be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence and that such person is not likely to commit any such offence while on bail. 13. The preamble of the Narcotic Drugs And Psychotropic Substances Act read as under:- 14. "An Act to consolidate and amend that law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances [to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances] and for matters connected therewith." 15. The preamble and objects and reasons of the two Acts are thus different. NDPS Act makes stringent provisions for control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances whereas Excise Act only tends to make a uniform law for import, transport, manufacture sale and possession of liquor so as to raise revenue of the State. 16. Personal liberty is a fundamental right guaranteed by the Constitution and keeping in possession more than 50 bulk Ltrs. only causes loss of revenue to the Government and should not be equated with offence of possessing commercial quantity of narcotic drugs and psychotropic substances. 16. Personal liberty is a fundamental right guaranteed by the Constitution and keeping in possession more than 50 bulk Ltrs. only causes loss of revenue to the Government and should not be equated with offence of possessing commercial quantity of narcotic drugs and psychotropic substances. Offence under the Excise Act is triable by a First Class Magistrate and the maximum sentence provided, therein for being in possession of more than 50 ltrs. is up to 5 years whereas a case under the NDPS Act is triable by a Special Court headed by a Sessions Judge and for possessing commercial quantity the minimum sentence is 10 years and the sentence may extend up to 20 years. 17. Sub-Section (3) of Section 49 puts riders on the powers of the Court in matter of grant of bail in relation to offence under Proviso to Sections 54, 54-B, 54-D and 56 of the Act. The Sections covered under this sub-section also have different gravity. The punishment provided for being in possession of more than 50 ltrs. ranges from 3 to 5 years, similar penalty is provided for rendering denatured spirit fit for human consumption. However, if death, grievous hurt or disability is caused to any person due to mixing noxious substance with the liquor the imprisonment may be for life. Thus the gravity of the offence is also required to be taken note of by the Court meaning thereby that being in possession of more than 50 ltrs. of liquor cannot be kept at par with a case where death results due to consumption of spurious liquor thus if death results due to consumption of spurious liquor, Courts should not adopt a liberal approach. 18. Yet another discrepancy which crops up from perusal of Sub-Section (3) of Section 49 is that the rider on the grant of bail has been imposed for offence under Sections 54-D of Rajasthan Excise Act. Section 54-D reads as under :- "Whoever is a party to a criminal conspiracy to commit an offence punishable under this Act shall be punished in the same manner as if he had committed such offence." 19. Section 54-D reads as under :- "Whoever is a party to a criminal conspiracy to commit an offence punishable under this Act shall be punished in the same manner as if he had committed such offence." 19. Since Sub-Section (3) of Section 49 begins with a non-obstante clause it would thus imply that even in bailable case where the offence stipulates for fine only or sentence of less than three years and a person is a party to a criminal conspiracy to commit such offence the offence being one under Section 54-D the Court would be bound by the restrictions imposed in Sub-Section (3) of Section 49 of the Act in matters pertaining to grant of bail. To illustrate this discrepancy we may take up Sections 22 and 23 of the Rajasthan Excise Act which prohibits sale of liquor to a minor and prohibits employment of a minor in liquor shop. The penalty for selling to a minor and employing a minor in liquor shop is dealt with in Section 55 of the Act which provides for fine which may extend to Rs. 500/- in addition to penalty for which he may be liable. Since there is no other Section dealing with the penalty for such an offence Section 62 will come into play as it deals with offences where penalty is not otherwise provided for in the Act. The penalty therein is fine which may extend to Rs. 200/-. 20. If a person conspires with the seller in selling liquor to minors or in appointing minors the offence would fall under Section 54-D. If such person appears before the Magistrate and pleads guilty he would be let off on payment of fine which may extend to Rs. 700/- but if such person moves bail application and admits his guilt he would not be released on bail due to the non-obstante clause in sub-sec. (3) of Section 49 of the Act. I have ventured to deal with the rider so as to point out the absurdities which would ensue if the provision is strictly interpreted. In view of the observations made hereinabove this Court is of the considered view that the Courts are not bound by the stringent provisions and would have to deal with each case on its own merit. 21. In view of the observations made hereinabove this Court is of the considered view that the Courts are not bound by the stringent provisions and would have to deal with each case on its own merit. 21. Though the wordings of Section 37 of the NDPS Act is pari materia to that of Sub-Clause (b) of Sub-Section 3 of Section 49 of the Act but looking to the fact that in the Excise Act transportation of liquor without permit causes revenue loss to the Government, whereas, dealing with commercial quantity of narcotic drugs and substances is a loss to the well being of the society at large. The offences under the two Acts cannot be equated. The legislature has also provided for punishment for up to 20 years for offences under the NDPS Act, whereas, for being in possession of more than 50 ltrs. of liquor the maximum punishment provided under the Rajasthan Excise Act is up to 5 years. In view of the nature of the offence the wording used in Sub-Clause (b) of sub-sec. 3 of Sec. 49 of the Act through pari-materia with that under Section 37 of the NDPS Act have to be given a liberal approach in certain matters. 22. It is also to be noted that offences under the Excise Act, is triable by First Class Magistrate whereas offences under the NDPS Act is triable by Special Sessions Court constituted under the NDPS Act. 23. Transporting liquor in bulk quantity with a valid permit is not an offence. There may be a case where a vehicle containing liquor in excess of 50 bulk ltrs. is seized. The cleaner and the driver who have no criminal antecedents of like nature may not be aware of the fact that valid permit has not been issued for transporting the said consignment. The Court may in the facts and circumstance of such cases may reasonably believe that such driver and cleaner are not guilty of the offence. Likewise, there may be a situation where a vehicle is booked by a transporter and the owner who has no criminal antecedents of like nature is not aware that liquor in excess of 50 ltrs. The Court may in the facts and circumstance of such cases may reasonably believe that such driver and cleaner are not guilty of the offence. Likewise, there may be a situation where a vehicle is booked by a transporter and the owner who has no criminal antecedents of like nature is not aware that liquor in excess of 50 ltrs. is being transported without a valid permit in such cases also taking into consideration the facts and circumstances of the case the Court may reasonably believe that the owner is not guilty and should ordinarily grant bail. 24. However, if a person has criminal antecedent of like nature the Court has no reason to come to the conclusion that he is not guilty and that he would not repeat the offence and in such cases the bail application should ordinarily be rejected. 25. No straight jacket formula can be set by the Court as the grant of bail is the discretion of the Court and would depend on the facts and circumstances of each case. 26. Petitioner has filed this bail application under Section 439 of Cr.P.C. 27. F.I.R. No. 152/2017 was registered at Police Station Masuda, Distt. Ajmer for offence under Sections 19/54, 54-KA, 58 of Rajasthan Excise Act. 28. In the present bail application counsel for the petitioner contended that the recovery is not from the present petitioner and present petitioner has been falsely implicated in this case. 29. Learned Public Prosecutor has opposed the present bail application. His contention is that petitioner has criminal antecedents of like nature and thereby considering Sub-Clause (b) of Sub-Section 3 of Section 49 of the Act, he is not entitle to bail. 30. I have considered the contentions. 31. Considering the fact that petitioner has earlier been convicted for offence under the Excise Act, this Court has no reasonable grounds for believing that petitioner is not guilty and that he will not repeat the offence while on bail hence, I am not inclined to grant bail to the present petitioner. 32. The bail application is accordingly rejected.