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2023 DIGILAW 85 (HP)

Shakti Singh v. State of H. P.

2023-02-24

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. Heard. By way of this petition, petitioner has assailed the order dated 18.11.2022 passed by learned Judicial Magistrate 1st Class, Court No.2, Rohru, District Shimla, H.P. in Case No. 165-4 of 2022, whereby the application of the petitioner under Section 457 of the Cr.P.C. for release of the case property has been rejected. 2. Brief facts of the case are that on 28.10.2022, a case under Section 39(1)(a) of the Himachal Pradesh Excise Act was registered at Police Station Rohru, District Shimla, vide FIR No. 192 of 2022. It was alleged that the police had intercepted a vehicle (Mahindra Pick up) bearing registration No. HP-10B-8698 on Adal road within the jurisdiction of Police Station Rohru. On checking the vehicle, a large number of boxes having liquor of different brands and beer were found being transported. The permits/passes carried by the driver of the vehicle were not found in terms of Himachal Pradesh Excise Act and Rules framed thereunder. It was found that the quantity of liquor being transported in the vehicle was in excess of the permits/passes. Further, the vehicle which was authorised to transport the liquor was different and lastly, huge quantity of liquor was being transported at the time when general elections were to be conducted. The entire quantity of liquor found in the vehicle was seized and taken into possession by the police. 3. Petitioner claims himself to be a liquor licencee. He preferred an application under Section 457 of the Cr.P.C. before the learned Judicial Magistrate 1st Class, Court No.2, Rohru, District Shimla, H.P. seeking release of the liquor on the ground that the liquor was being transported under valid permit/pass. The vehicle originally carrying the liquor from Shimla had broken down on way, therefore, the consignment was shifted to another vehicle. 4. Learned Judicial Magistrate 1st Class, Court No.2, Rohru, dismissed the application of the petitioner by holding as under:- “4. Perusal of the file and documents shows that the permit was issued to Shakti Singh and quantity was mentioned in it. 4. Learned Judicial Magistrate 1st Class, Court No.2, Rohru, dismissed the application of the petitioner by holding as under:- “4. Perusal of the file and documents shows that the permit was issued to Shakti Singh and quantity was mentioned in it. Considering the fact that vehicle along with liquor was seized by the police near Arhal road which route is not shown in the permit, extract 07 boxes which were found without permit, no information of mechanical fault of truck and transfer of liquor boxes to other vehicle was given to local police and Excise and Taxation department and considering the fact that applicant and truck driver and truck owner has not participated in the investigation being conducted by police. Perusal of the record shown that some liquor was found to have valid permit and some liquor boxes were found without any permit, which in my opinion raises suspicion qua illegal transportation of the liquor in time of H.P. Vidhan Sabha election as it was seized by police on the road which was not shown in the permit. For the reasons stated herein above, in my opinion, the present application deserves to be dismissed. The application stands disposed of. After due completion it be tagged with the relevant FIR.” 5. Aggrieved against the dismissal of his application petitioner has approached this Court with a prayer to set aside the impugned order and to release the entire liquor, as was permitted to be transported for him, in his favour. 6. During the pendency of the petition, directions were issued to respondent/State to complete the investigation and file the final report under Section 173 of the Cr.P.C. Investigating agency after completion of investigation has now submitted the final report under Section 173 of the Cr.P.C. and copy of such report has been placed on record. 7. Perusal of report under Section 173 of the Cr.P.C. submitted by respondent/State reveals that except for 7 boxes of liquor (two boxes of IMFL “All Season”, one box containing ½ bottles of brand “All Season”, two boxes containing bottles of Sterling brand, One box containing bottles of Episode brand and One box containing bottles Old Monk brand), rest of the liquor found in Mahindra Pick-up bearing No. HP-10B-8698 was permitted to be transported to the liquor vend of petitioner, who had a valid liquor licence. It is stated in the final report that much more quantity of liquor was being transported under valid permits in truck No. HP62-D-0263 from Shimla to Rohru. The entire consignment belong to three different liquor licencees including the petitioner. The truck had broken down on the way. It is, however, alleged that the liquor seized by police was being transported on a route different than the permitted route. 8. Thus, the vehicle (Mahindra Pick-up) bearing registration No. HP-10B-8698 was found carrying the liquor meant to be delivered at the liquor vend of petitioner except 7 boxes found in excess, as detailed above.. 9. Learned counsel for the petitioner has submitted that since the truck carrying the entire consignment of three liquor licencees had broken down, the consignment was being transshipped in parts in a vehicle having lesser carrying capacity. As per him, the excess liquor boxes found in vehicle (Mahindra Pick up) bearing registration No. HP-10B-8698, in fact belong to other licencees. 10. The record nowhere reveals that the liquor being carried in Mahindra Pick-up bearing registration No. HP-10B8698 except seven boxes, as detailed above, did not belong to petitioner. In the given facts of the case, petitioner has not been booked with allegations of transporting illicit liquor. It being so, pending trial of the case, liquor belonging to the petitioner can be ordered to be released in his favour. The licence period of petitioner is nearing the end. No fruitful purpose shall be served by allowing the liquor owned by petitioner to be kept in police custody till the final disposal of the case. On the other hand, on completion of licence period, the entire liquor will become useless for the petitioner and he will be put to irreparable loss in monetary terms. 11. The presence of entire quantity of liquor as case property during trial will not be required. In order to preserve the samples of case property, petitioner can be put to appropriate terms. 12. Accordingly, the petition is allowed. Order dated 18.11.2022 passed by learned Judicial Magistrate 1st Class, Court No.2, Rohru in Case No. 165-4 of 2022 is set aside. The presence of entire quantity of liquor as case property during trial will not be required. In order to preserve the samples of case property, petitioner can be put to appropriate terms. 12. Accordingly, the petition is allowed. Order dated 18.11.2022 passed by learned Judicial Magistrate 1st Class, Court No.2, Rohru in Case No. 165-4 of 2022 is set aside. Entire quantity of liquor except seven boxes, as detailed in para-7 above, seized and taken in possession in case FIR No. 192 of 2022 dated 28.10.2022 registered at Police Station Rohru, District Shimla, H.P. in respect of which permit/pass existed for transportation and delivery in favour of petitioner be released in his favour. This order shall, however, be subject to following conditions:- (i) Inventory of all the boxes liable for release in favour of petitioner shall be drawn by marking each box with separate identification number/mark. (ii) Each page of the inventory so prepared shall be signed by the petitioner and the IO of concerned Police Station. (iii) One bottle/one ½ bottle/one nip, as the case may be, out of each box to be released in favour of petitioner shall be taken out, sealed and preserved as a sample by respondent and each such sample shall be separately marked in reference to the specific identification number/mark assigned to the box from which the bottle (sample) was taken. (iv) Petitioner shall furnish a personal bond in the sum of Rs.10,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court undertaking therein that in case the liquor released in his favour, is finally ordered to be confiscated to the State, he shall indemnify the State of Himachal Pradesh to the tune of value of entire liquor, released in his favour. 13. The observations hereinabove have been made only for the purpose of disposal of instant petition and shall not be construed to have any bearing on the final outcome of the criminal case or any other proceedings arising out of FIR No. 192/2022 dated 28.10.2022 registered at Police Station Rohru, District Shimla, which shall be decided solely on their on merits uninfluenced by such observations. 14. The petition is accordingly disposed of.