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Himachal Pradesh High Court · body

2023 DIGILAW 179 (HP)

Sant Ram v. State of Himachal Pradesh

2023-03-24

AJAY MOHAN GOEL

body2023
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for the following reliefs: “It is, therefore, most respectfully prayed that this petition may kindly be allowed and FIR No. 5/2020 dated 8.6.2020 registered at Police Station SV & ACB Una under Section 39 (1) (a) and 39 (2) of H.P. Excise Act kindly be quashed as against the petitioner along with all consequential proceedings pending in the Court of learned JMFC-III, Una arising out of aforesaid FIR in the interest of justice and fair play.” 2. Brief facts necessary for the adjudication of the present petition are that an FIR was registered, copy whereof is appended with the petition as Annexure P1, at the behest of Sub Inspector Jasbeer Chand, State Vigilance and Anti Corruption Bureau, at Police Station State Vigilance, Una, dated 08.06.2020, under Section 39 (1) (a) and 39 (2) of the H.P. Excise Act, on the facts that an information stood received by the complainant that M/s A One Enterprises and M/s MARS Bottlers were illegally transporting the liquor bottles of country brand i.e. ‘Himachali Santra’ from M/s MARS Bottlers to A One Enterprises from the bottling facility of M/s MARS Bottlers to A One Enterprises without them possessing requisite licence for transportation of liquor, as they were transporting the bottles on the authority of one permit only again and again and were further transporting the liquor without hologram. On the basis of said FIR, two teams of the officers and officials were constituted and the premises of both M/s A One Enterprises and M/s MARS Bottlers were searched on the same day, i.e. 08.06.2020. As per the prosecution, in the course of search, though it was not found that the accused were involved in the illegal transport of liquor without valid licence, but it was found that certain Nips and bottles in possession of both the parties were without requisite holograms. Incidently, as the Court stands informed at the Bar and which fact has not been disputed by the respondents, only M/s MARS Bottlers were made accused in the FIR, whereas A One Enterprises was not made an accused. The petitioner at the relevant time happened to be appointed as Excise Inspector to look after the affairs of M/s MARS Bottlers. Incidently, as the Court stands informed at the Bar and which fact has not been disputed by the respondents, only M/s MARS Bottlers were made accused in the FIR, whereas A One Enterprises was not made an accused. The petitioner at the relevant time happened to be appointed as Excise Inspector to look after the affairs of M/s MARS Bottlers. The matter was got investigated and in terms of the final report which has been submitted by the Investigating Officer, it was mentioned therein that the petitioner had violated Notification No. 7-362/2009-EXN-17270-89, dated 23.05.2012 and thus, he is guilty of having committed an offence punishable under Section 39 (2) of the H.P. Excise Act. 3. Learned Senior Counsel appearing for the petitioner has argued that the offence alleged to have been committed by the petitioner is nothing, but the wishful thinking of the Investigating Officer, for the reason that neither there is ex facie any violation of the Notification being referred to in the report by the Investigating Officer nor the petitioner has violated the provisions of Section 39 (1) (a) and 39 (2) of the H.P. Excise Act. Learned Senior Counsel has referred to the Notification which is appended with the response filed by the State and argued that in terms of said Notification, the amendments which have been incorporated in Rule 38 of the H.P. Excise Rules are directly relatable to the licensee and no clause of this Notification in any manner directly or indirectly is relatable to an officer like the petitioner, who stood appointed to look after the affairs of the licensee. Learned Senior Counsel further submitted that in terms of Rule 7 of the H.P. Excise Act, the Notification which is relatable to the petitioner, the same calls upon him to ensure depiction of batch number and hologram in the copies of permit/passes at the time of issuance thereof and before the removal of country liquor, an Indian made foreign spirit from the licensed premises and in the present case it is not the case of the prosecution that the petitioner has violated the provisions of this particular Rule or Notification issued thereunder. Learned Senior Counsel thus submitted that as the FIR and subsequently proceedings which stand initiated against the petitioner post filing of the challan by the Investigating Officer, by no stretch of imagination will result in the conviction of the petitioner, therefore, this Court should invoke its inherent jurisdiction under Section 482 of the Criminal Procedure Code and quash the same. 4. The petition is opposed by learned Additional Advocate General, who has submitted that the petition is premature, for the reason that whatever is being contended before this Court can be argued by the petitioner before learned Trial Court at the stage of discharge also and further, it cannot be said that prima facie, the petitioner is not guilty of the offence alleged to have been committed by him. Learned Additional Advocate General also argued that in exercise of the powers so vested under Section 482 of the Criminal Procedure Code, this Court should not quash the proceedings which have been initiated in the present case, because admittedly the premises where search was conducted have revealed that there were violations of the provisions of H.P. Excise Act. Accordingly, it has been prayed that the present petition be dismissed. 5. I have heard learned Senior Counsel for the petitioner as also learned Additional Advocate General. 6. In exercise of its powers conferred under Section 482 of the Criminal Procedure Code, the High Court ordinarily does not quashes the FIRs and proceedings which stand initiated thereupon, because ordinarily, whether or not, an accused is guilty of the offences alleged against him is a matter of trial and it is the trial which determines the fate of an accused. However, in terms of the law declared by Hon’ble Supreme Court of India, if the fact situation of a case is that ex facie the Court can come to the conclusion that the allegations which are levelled against the petitioner, by no stretch of imagination can lead to his conviction, then the Court can exercise its inherent jurisdiction so as to ensure that such a petitioner does not has to undergo the ordeal of trial. 7. 7. In terms of the challan that has been filed before learned Court below, the petitioner is stated to have committed the offence punishable under Section 39 (2) of the H.P. Excise Act and Notification No. 7-362/2009-EXN-17270-89, dated 23.05.2012, issued under Rule 7 of the Liquor Permit and Pass Rules. 8. The petitioner, as already mentioned hereinabove, at the relevant time was serving as an Excise Inspector. Section 39 (2) of the H.P. Excise Act provides that whoever, in contravention of the provisions of the Excise Act, or of the Rules made thereunder or Notification issued, or any order made, or of any licence/permit or pass granted under the Act, inter-alia, possesses any unused and printed label, cork, capsule etc., sells any liquor, bottles any liquor, removes any liquor from any distillery, brewery, winery etc. or other place of storage, adulterates any liquor by adding any substance with an intention to vary the prescribed strength or quality of such liquor, shall be punishable with imprisonment for a term which shall not be less than six month, but which may extend to two years and with fine which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees. 9. The statutory provisions of Section 39 (2) of the H.P. Excise Act, in the considered view of this Court, by no stretch of imagination can be attracted in the facts of the present case against the petitioner because here the allegation against the petitioner is not that he either possessed any unused or printed lable cork, capsule etc. or he sold any liquor or bottled any liquor or removed any liquor from any distillery, brewery, winery etc. or adulterates any liquor by adding any substance etc. in violation of the provisions of the H.P. Excise Act. 10. Similarly, as far as the Notification issued under Rule 7, violation whereof is alleged by the prosecution is concerned, a careful perusal thereof demonstrates that the same refers to the acts which a licensee has to perform and this Notification, nowhere deals with the acts which are to be performed by an officer like the petitioner. Relevant portion of Notification dated 30.05.2012 is quoted herein-below: “In Rule 38 of the said rules: 1. Relevant portion of Notification dated 30.05.2012 is quoted herein-below: “In Rule 38 of the said rules: 1. After sub-clause (iii) of sub-rule (1B), now sub-clause (iv) shall be added, namely (iv) the licensee shall sell brands of liquor by affixing Hologram/EALs on the caps of the bottles extending on to the necks thereof. 2. Sub-Clause (1) of Sub-Rule (1-BB) shall be substituted by the following, namely: (i) the licensee shall sell bottled imported foreign liquor in sealed and capsuled bottles only by affixing Hologram/EALS on the caps of this bottics extending on to the necks thereof. 3. The Sub-Clause (a) and (c) of Sub-Rule (15) shall be substituted by the following, namely: (a) The licensee is authorized to bottle foreign liquor only by affixing Hologram/EALS on the cap of liquor bottles extending on to the necks thereof whether manufactured in India or imported. (c) The licensee shall not bottle any foreign liquor of a strength other than prescribed under Sub-clause (ii) of Sub-Rule (31) of Rule 37. 4. The para to Sub-Rule (23) shall be substituted by the following, namely: The licensee is authorized to bottle country spirit only which includes spiced and special spiced country spirit only at the strength of 50 degree and 60 degree proof respectively by affixing Hologram/EALS on the caps of liquor bottles extending on to the necks thereof.” The above also clearly demonstrates that the proceedings which stand initiated against the petitioner are misconceived and by no stretch of imagination they can lead to his conviction. Incidently, it is not the case of the prosecution that the provision of the Notification which has been issued under Rule 7 of the Liquor Permit and Pass Rules, which pertains to the official acts that have to be done by the petitioner, have been violated by him. 11. Accordingly, in view of the above discussion, this petition is allowed and FIR No. 5/2020, dated 08.06.2020, registered at Police Station State Vigilance and Anti Corruption Bureau, Una, District Una, H.P. under Section 39 (1) (a) and 39 (2) of H.P. Excise Act, as far as the petitioner is concerned, is quashed and set aside. 12. The petition stands disposed of, so also the pending miscellaneous applications, if any. Interim order, if any, stands vacated.