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2024 DIGILAW 127 (MP)

Uday Shivhare v. State of Madhya Pradesh

2024-01-30

ANAND PATHAK

body2024
ORDER 1. The present petition has been preferred by the petitioners under section 482 of the Code of Criminal Procedure, 1973 seeking quashment of FIR dated 6.5.2023 registered at Crime No.247/2023 at Police Station Thatipur, District Gwalior for the offence under sections 34(2) of M.P. Excise Act, 1915 read with section 109 of IPC. 2. Precisely stated facts of the case are that on 6.5.2023, respondent No.1 lodged an FIR that during flag march, an information was received by the Police Station that some persons are illegally selling liquor from the shop which is otherwise closed. It is alleged that certain officers of respondent No.1 went to the spot and found that petitioner No.2 was selling liquor from the shop alleged to be closed. When police directed petitioner No.2 to produce licence, it was informed by petitioner No.2 that there is no licence for the alleged shop, then police seized 27 boxes of Masala Country liquor and 36 boxes of plan country liquor along with cash of Rs.25,100/-. On interrogation, petitioner No.2 referred the name of petitioner No.1 from him he procured the liquor and therefore, petitioner No.1 was also arrayed as accused in the case purportedly under section 109 of IPC. Thereafter, investigation carried out and charge-sheet has been filed and therefore, petitioners are before this Court. 3. It is the submission of learned counsel for the petitioners that petitioner No.1 is licence holder from the State Government (FCL-1), therefore, petitioners are having absolute right to sale the country made liquor and foreign liquor from the disputed premises. In fact the premises which was raided by respondent No.1 was the premises earmarked under licence for sale of liquor. Petitioner No.1 is having valid licence for country made liquor and foreign liquor for 2023-24 for composite shop situate at Kumharpura, Thatipur District Gwalior. Copy of the licence annexed with the petition as Annexure P/2 indicates such fact. When petitioner No.1 successfully paid revenue to the Government and for last 30 years liquor shop is being run, then approach of authority to make raid over the premises which is licenced one, appeared to be misplaced and contrary to law. Even otherwise, as per section 61 of the M.P. Excise Act, Investigating Officer has lodged the FIR which is not permissible. For this purpose, complaint needed to be filed before the concerned Court of law. 4. Even otherwise, as per section 61 of the M.P. Excise Act, Investigating Officer has lodged the FIR which is not permissible. For this purpose, complaint needed to be filed before the concerned Court of law. 4. It is further submitted that petitioner No.1 is arrayed on the basis of memo of co-accused prepared under section 27 of the Evidence Act and no recovery in pursuance thereof has been made from the possession of petitioner No.1. Liquor has been seized only from the possession of petitioner No.2. He relied upon the judgment of this Court in the case of Gajendra Singh Bhadoria v. State of M.P., 2017(3) JLJ 217 =2017 (1) MPLJ (Cri) 623. Said judgment has been followed by the Coordinate in the case of Girish Bhatnagar v. State of M.P. 2017 (3) MPLJ (Cri) 263. He also relied upon the case of Santram and others v. State of M.P. and others, 2016 (3) JLJ 83 . 5. Learned counsel for the respondents/State opposed the submissions and submitted that petitioner No.2 was selling liquorw ithout permit and therefore, he has been arrayed as accused and on the basis of his memo under section 27 of the Evidence Act, petitioner No.1 was arrayed as accused. They were not selling the liquor from the shop which is earmarked for sale under the licence. He prayed for dismissal of this petition. 6. Heard learned counsel for the parties at length and perused the documents appended thereto. 7. In the case in hand petitioners are taking exception to the FIR registered at crime No.247/2023 and seeking the relief of quashing the said FIR registered at crime No.247/2023 at Police Station Thatipur District Gwalior for offence under section 34(2) of Excise Act and section 109 of IPC. 8. Present petitioners placed on record copy of the licence granted to petitioner No.1 from 1.4.2023 till 31.3.3024 of Kumharpura region (Annexure P/2). Petitioners further placed on record the recent order which petitioner No.1 placed with the Excise Department for procuring the liquor of various brands. 9. 8. Present petitioners placed on record copy of the licence granted to petitioner No.1 from 1.4.2023 till 31.3.3024 of Kumharpura region (Annexure P/2). Petitioners further placed on record the recent order which petitioner No.1 placed with the Excise Department for procuring the liquor of various brands. 9. This Court directed the Excise Department to verify the licence (Annexure P/2) submitted by the petitioners and in response thereof, department filed its reply vide document No.5346/2023 in which the Excise Department categorically submitted that petitioner No.1 was having valid licence on the date of incident in the form of Annexure P/2 and further the place from where the alleged seizure was made, was the licensed premises which was incidentally sanctioned in favour of petitioner No.1. 10. When petitioner No.1 was validly running the liquor shop under proper licence, then it is surprising that Excise Department which is privy to the licence, was oblivious of the said fact. The place from where seizure was made is in fact a licensed premises of petitioner No.1 for which licence was given. 11. Contention of respondent/State that petitioners were running two shops in same locality on single licence appears to be vulnerable because petitioner No.1 cannot gain anything by opening two shops adjacent to each other or even few meters away from each other on a single licence as it may cost him financially higher than operating single shop. In the case at hand, admittedly, petitioner No.1 is licence holder and therefore, no prosecution under section 34(2) of Excise Act can be allowed against him unless the ground made out at the behest of Police. 12. Other aspect which deserves consideration is source of implication. Only implicative material against petitioner No.1 is disclosure statement made by petitioner No.2 (employee of petitioner No.1) under section 27 of the Evidence Act. Admittedly, no recovery of any kind has been made from petitioner No.1 and therefore, merely on the basis of memo recorded under section 27 of the Evidence Act, petitioner No.1 cannot be prosecuted. 13. Petitioner No.2 also cannot be prosecuted since he was working in a licensed shop and it has been found to be correct by the Excise Department. Therefore, continuance of criminal proceedings would amount to abuse of process of law. 14. Even in previous year 2022-23, petitioner No.1 was having licence of the same locality. Petitioner No.1 successfully paid revenue to the Government. Therefore, continuance of criminal proceedings would amount to abuse of process of law. 14. Even in previous year 2022-23, petitioner No.1 was having licence of the same locality. Petitioner No.1 successfully paid revenue to the Government. For 30 years, liquor shop is being run by licencee petitioner No.1 in the vicinity. Incidentally, petitioners place from where boxes of country made liquor has been seized are duty and tax paid liquor, which was obtained by petitioner No.1 from paying licence fee. 15. In the case of Rajiv Thapar and others v. Madanlal Kapoor [ (2013) 3 SCC 330 ] the apex Court has given guidance, under which circumstances, documents relied by the accused can be considered in a petition under section 482 of Cr.P.C. which reads as under : “30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under section 482 of the Cr.P.C. :-- (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice? (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious Court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.” 16. The apex Court in the matter of State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604 laid down the different exigencies under which interference under section 482 of Cr.P.C. can be made. The case of petitioners falls within those exigencies. 17. In the conspectus of facts and circumspection of the case, in the considered opinion of this Court, no case for prosecution against the petitioners is made out and petitioners' case deserves interference under the extraordinary jurisdiction of this Court under section 482 of Cr.P.C.. Accordingly, the FIR dated 6.5.2023 registered at Crime No.247/2023 at Police Station Thatipur, District Gwalior for the offence under sections 34(2) of M.P. Excise Act, 1915 read with section 109 of IPC is hereby quashed. Petitioners are discharged from all charges and allegations. 18. Petition stands allowed and disposed of.