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2020 DIGILAW 11 (HP)

Anil Kumar v. State Of Himachal Pradesh

2020-01-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT Chander Bhusan Barowalia, J. - The present petition, under Section 482 of the Code of Criminal Procedure, is maintained by the petitioner for quashing and setting aside the impugned order, dated 5.10.2019, passed by the learned Additional Sessions Judge, Una, in Cr. Revision No.44 of 2019, whereby order dated 29.5.2019, passed by the learned Judicial Magistrate 1st Class, Court No.2, Amb, District Una, in FIR No.54/2019, was affirmed. 2. The key facts, giving rise to the present petition are that an application was maintained by the police before the learned Trial Court seeking certification of correctness of inventory of seized liquor and disposal of the liquor and such application was allowed by the learned Trial Court, vide order dated 29.5.2019. As per the petitioner, he is owner of liquor shop situated at village Chalet, Tehsil Ghanari, District Una, and is authorized by the State Government for the sale of liquor and police has taken into possession the alleged liquor illegally. It is alleged that the learned Trial Court has passed the order without giving any opportunity of being heard and the same is absolutely illegal, null and void. 3. Feeling aggrieved, the impugned order, dated 5.10.2019, passed by the learned Trial Court, the petitioner maintained the present petition. 4. Learned counsel appearing on behalf of the petitioner has argued that the vehicle was not without permit, as the petitioner is having liquor vend and has ordered the liquor, as the transit permit is valid only for one day. The liquor has been brought in the Van and order has been given on the basis of estimate requirement, as there was no sufficient sale as expected on the previous date and the transit permit is only for one day so stock increase. In these circumstances, it cannot be said that there was liquor without permit. On the other hand, learned Additional Advocate General has vehemently argued that on the day, the liquor vend was inspected by the police, the liquor was in excess and without any permit, as such, the order passed by the Excise Department is in accordance with law. 5. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 6. 5. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 6. It is not disputed that in FIR No.54 of 2019, dated 28.4.2019, under Section 39-33-11 of H.P. Excise Act, has been registered against Parkash Chand, at Police Station, Gagret, District Una and the police has taken into possession huge quantity of liquor of different qualities. The petitioner has alleged that he is owner of the liquor shop situated at village Chalet, which is authorized by the State Government for sale of liquor and he was also having valid permit regarding recovered liquor. However, police has illegally taken into possession the liquor. The petitioner has further alleged that Parkash Chand was his salesman. 7. From the perusal of order dated 29.5.2019, it is clear that the learned Court below has certified the inventory of the liquor in question and allowed application of the police for disposal of the liquor through concerned Station House Officer. Though, the petitioner has maintained an application, under Section 451 of the Code of Criminal Procedure before the learned Court below, but the said application was dismissed for the reasons that once order has been given by the Court again releasing the same will result into review of its own order, which is not allowed in criminal law. In the instant case, the petitioner has neither placed on record the permit dated 28.4.2019 nor he has placed on record any stock register in respect of the liquor so recovered by the police, it appears that when the stock was confiscated, as it was without permit. The petitioner was to obtain transit permit for transportation of the liquor. Learned counsel appearing on behalf of the petitioner has submitted that the transit permit was only for one day and the petitioner could not keep the liquor in transit and has to bring the liquor to his store. In these circumstances, as the sale was not as anticipated, the stock has increased. However, the learned Court below has not considered this aspect of the case and has dealt with the case, as the liquor was taken from an ordinary person, who is transporting the liquor and keeping it without any permit. In these circumstances, as the sale was not as anticipated, the stock has increased. However, the learned Court below has not considered this aspect of the case and has dealt with the case, as the liquor was taken from an ordinary person, who is transporting the liquor and keeping it without any permit. The facts of the present case are required to be adjudicated upon, taking into consideration the fact that the petitioner was liquor vendor and the transit permit was only for one day. 8. In these circumstances, the impugned order dated 5.10.2019, passed by the learned Trial Court is required to be quashed and the case is required to be remanded back to the learned Trial Court to consider this aspect of the case and to give reasoned findings. The petitioner will be at liberty to produce the relevant documents to show that it was the liquor, which he has purchased and order was given on the basis of estimation of sale and requirement. Ordered accordingly. No order as to costs. Parties through their learned counsel are directed to appear before the learned Court below on 20.1.2020. Pending application(s), if any, also stand(s) disposed of.