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2017 DIGILAW 832 (BOM)

R. M. Jaiswal Wine Shop v. State of Maharashtra

2017-04-26

S.B.SHUKRE

body2017
JUDGMENT : 1. Heard. 2. Rule. Rule made returnable forthwith. 3. Heard finally by consent. 4. The legality and correctness of the impugned order dated 29.9.2016, passed by the Judicial Magistrate, First Class, Warora, in M.C.A. No.230/2016 and the order dated 17.12.2016, passed by the Additional Sessions Judge Warora, in Criminal Revision No.27/2016 are taken exception to by this petition. 5. By these orders, the application filed by the petitioner under section 457 of the Criminal Procedure Code for releasing the seized liquor to the custody of the petitioner on his supratnama has been rejected. The ground of rejection commonly reflected in both these orders is that in Chandrapur district there is a complete prohibition on consumption, possession, sale, use and transport of foreign liquor as well as country liquor as per the order passed by the State of Maharashtra on 5th March, 2015 and as this petitioner was found to be transporting country liquor from a place situated in Nagpur district to a place situated in Yavatmal district by using the route which passed for some portion through taluka Warora of Chandrapur district, it was held that the petitioner, prima facie, violated the complete prohibition imposed by the order of the State Government dated 5th March, 2015. So, all contentions of the respondent made in this regard were upheld by the Courts below. 6. Learned Senior Advocate for the petitioner has submitted that the reasoning of the Courts below is flawed as the order dated 5th March, 2015 does not prohibit transportation of the liquor through Chandrapur district on the basis of transport passes issued for that purpose and giving a specific route for such transportation. He invites my attention to the order dated 5th March, 2015 wherein, not the transport passes but licences and permits only have been prohibited. 7. Learned A.P.P. submits that under Clause II(v) of the Schedule to the order dated 5th March, 2015, the act of the petitioner would be squarely covered and, therefore, she supports the impugned orders. 8. On going through the order dated 5th March, 2015, which has been issued in exercise of the powers conferred upon the State Government under Section 139(a) of the Maharashtra Prohibition Act I find that there is a great substance in the argument of learned Senior Advocate and no merit in the contentions raised on behalf of the respondent. 9. 8. On going through the order dated 5th March, 2015, which has been issued in exercise of the powers conferred upon the State Government under Section 139(a) of the Maharashtra Prohibition Act I find that there is a great substance in the argument of learned Senior Advocate and no merit in the contentions raised on behalf of the respondent. 9. The order dated 5th March, 2015 prohibits, amongst others only permits for purchase, possession, transport, use and consumption of foreign liquor and country liquor. There is a distinction between a permit and a transport pass and this can be seen from the relevant provisions of the Maharashtra Prohibition Act as well as the Rules framed there under. Section 2(32) defines “permit” to be a “permit granted under the provisions of the Act”. The grant of permit has been dealt with under Chapter 4 of the Act and the relevant Sections are Sections 40, 40A, 40B, and 41 of the Maharashtra Prohibition Act, 1949. These sections deal with various kinds of permits such as permits granted for the use or consumption of foreign liquor, permits granted for meeting any emergent occasions and permits granted for use or consumption of foreign liquor by certain dignitaries. The issue of transport pass has been dealt with under Rule 18 and Rule 31 of the Maharashtra Country Liquor Rules, 1973. The relevant rule, for the purposes of petition, would be Rule 31(3) which lays down that a competent authority can issue a transport pass in form (C.L.XVII) for the purpose of transportation of liquor. Thus, it would be clear that there is indeed a difference and distinction between a permit and a transport pass. Significantly, it must be noted here that under Section 139(a) of the Maharashtra Prohibition Act, the State Government has been conferred with power to prohibit by general or special order not only various types of licences and permits but also passes or authorizations throughout the State or any area within the State. The order dated 5th March, 2015 has been issued in exercise of power conferred by this Section. But, it does not impose any prohibition on issuance of transport passes. The order dated 5th March, 2015 has been issued in exercise of power conferred by this Section. But, it does not impose any prohibition on issuance of transport passes. This will also make it clear to us that by the order dated 5th March, 2015 banning of issuance of transport passes has not been envisaged and what has been contemplated is the prohibition of the licences and permits specifically mentioned in the order. If this was not so, the power under Section 139(a) would have been fully used by including transport passes also under the prohibition order dated 5th March, 2015. 10. With the assistance of learned Senior Advocate, I have also gone through the transport pass issued under Rule 31(3) read with Rule 18 of the Country Liquor Rules, 1973 framed under the Maharashtra Prohibition Act. This transport pass has been issued only for transportation of the country liquor from Nagpur to Wani and it delineates in a specific manner the route of such transport. Warora is one of the places through which the transport route passes and it is not the contention of the respondent that the petitioner deviated from the route specified in the transport pass. 11. In view of above, the action of the seizure of the country liquor taken by the respondent in the instant case, appears to be, at least at this stage, not in consonance with the provisions of the law. The petitioner would be entitled to the custody of the seized liquor, subject to certain conditions to be imposed, till final disposal of the case against him. 12. All these aspects of the matter, have not been considered by the Courts below and, therefore, a patent illegality is seen to be committed by them while denying the custody of the seized articles to the petitioner. The impugned orders, therefore, must go. 13. The writ petition is allowed. 14. The impugned orders are quashed and set aside. 15. The application filed for release of the country liquor to the custody of the petitioner on supratnama is allowed. 16. The seized articles be released to the custody of the petitioner till final disposal of the case, on executing a Bond in the sum of Rs.2,00,000/-, on the condition that the petitioner shall produce these articles before the trial Court, if required for the purposes of the trial. 17. 16. The seized articles be released to the custody of the petitioner till final disposal of the case, on executing a Bond in the sum of Rs.2,00,000/-, on the condition that the petitioner shall produce these articles before the trial Court, if required for the purposes of the trial. 17. Rule is made absolute, in these terms.