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Himachal Pradesh High Court · body

2025 DIGILAW 532 (HP)

Naveen Thakur v. Cr. MMO No. 129 of 2025

2025-03-28

VIRENDER SINGH

body2025
Judgment : (Virender Singh, J.) The petitioner has filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, (hereinafter referred to as ‘the B.N.S.S.) against the order dated 5.2.2025, passed by the learned Judicial Magistrate First Class, Hamirpur, H.P., (hereinafter referred to as ‘the trial Court’), in Cr. M.A. No. 79 of 2024, titled as, ‘Naveen Thakur versus State of H.P. & anr.’. 2. By way of order dated 5.2.2025, the learned trial Court has dismissed the application, filed under Section 457 Cr. P.C. (S. 503 BNSS, 2023), for release of country liquor, Una No. 1, impounded by the officials of Police Station, Sujanpur, District Hamirpur, H.P., in FIR No. 73 of 2024, dated 21.11.2024, under Sections 39(1)(a) of the HP Excise Act and 3(5) of BNS, 2023. 3. According to the petitioner, he is Wine Contractor, and is running liquor Vend L-14 at VPO Bara, Tehsil Nadaun, District Hamirpur, H.P., against his retail license No. 5918115661974824. The petitioner has got the Excise Pass No.PER202411212405560220309, and Indent No. IND2024DEPOLD30834751, dated 21 st November, 2024 and the same is stated to be issued on 21 st November, 2024, and valid till 21 st November, 2024 11:59 p.m. and the same was issued by the Department of State Taxes and Excise, Government of Himachal Pradesh, Form-L34, for the transportation of Country liquor ‘Una No. 1’, which was purchased from Babita Devi, R/o Ward No. 1, Krishna Nagar Pacca Bharo, HP Petrol Pump Hamirpur (HP), against her wholesale license No. 30831972723 Firm L-13. 3.1 As per the permit, the aforesaid liquor was to be transported in vehicle No. HP-67A-6016. However, due to breakdown of the said vehicle, on the way to Bara, Rangas from Krishna Nagar, Hamirpur (HP), the driver of the said vehicle took the same to Mahindra Care, Service Station for repair and the same was got repaired. In this regard, Bill No. 654, dated 21.11.2024 was issued. Due to the said fact, the liquor was shifted to Vehicle bearing No. HP-37B-3180 from vehicle No. HP-67A-6016. 3.2 It is the further case of the petitioner that the said liquor was shifted to another vehicle without informing the petitioner. Later on, this fact came to the knowledge of the petitioner that vehicle, in which, the liquor was shifted, was impounded by the Police of Police Station, Sujanpur, in FIR No. 73 of 2024. 3.2 It is the further case of the petitioner that the said liquor was shifted to another vehicle without informing the petitioner. Later on, this fact came to the knowledge of the petitioner that vehicle, in which, the liquor was shifted, was impounded by the Police of Police Station, Sujanpur, in FIR No. 73 of 2024. The investigation, in the case, is stated to be complete, as such, the liquor is no longer required by the Police, for further investigation. 3.3 In this regard, the petitioner filed application for release of seized liquor, before the Court of learned trial Court, which was dismissed, on 5.2.2025. 4. The said order has been assailed before this Court, mainly on the ground, that the learned trial Court has failed to appreciate that the liquor in question is no longer required by the Police, for the reason that investigation is complete. 5. According to the petitioner, the sample of the liquor was sent to SFSL, Junga, as such, no fruitful purpose would be served by keeping the said liquor, in the Police custody. 6. The impugned order has further been assailed on the ground that the license was issued by the Excise Department, and in case, the same is not renewed, it would be difficult for the petitioner to sell the impounded liquor. As such, he will suffer huge financial loss. 7. It is further averred in the petition that the learned trial Court has failed to take into consideration the peculiar facts and circumstances of this case, according to which, the vehicle, in which the liquor was transported, became in-operational, due to breakdown. Thereafter, the said vehicle was taken for repair and driver of the vehicle, without his permission, had shifted the liquor from the vehicle, which has been mentioned in the permit to another vehicle. According to the petitioner, the documentary evidence with regard to repair of the vehicle, which has been placed on record, has also not been considered by the learned trial Court. 8. The findings of the learned trial Court have further been assailed on the ground that the learned trial Court has failed to appreciate that in the status report, filed by the Police, it has been admitted that petitioner is the real owner of the vehicle, so impounded. 9. 8. The findings of the learned trial Court have further been assailed on the ground that the learned trial Court has failed to appreciate that in the status report, filed by the Police, it has been admitted that petitioner is the real owner of the vehicle, so impounded. 9. To buttress his contention, learned counsel for the petitioner has also relied upon the decision of this Court in Cr. MMO No. 1154 of 2022, titled as, Shakti Singh versus State of H.P., decided on 24.2.2023. 10. On the basis of above, a prayer has been made to allow the present petition, by setting aside the order passed by the learned trial Court and the liquor, so impounded, has been prayed to be released, in favour of the petitioner, on supurdari. 11. When, put to notice, the Police filed the status report, disclosing therein that on 21.11.2024, ASI Pushpinder Singh, alongwith other police officials, was on traffic checking duty. The Police party had put picketing at Bhadmeli, on Hamirpur to Sujanpur road. 11.1 At about 4:00 p.m., when, the I.O was talking to the Up-Pradhan of Gram Panchayat, Chabutra, Surinder Kumar and Ward Member, Rakesh Kumar, then, he noticed a pick-up, bearing registration No. HP-37B-3180,being driven by its driver, coming from Hamirpur side. The vehicle is stated to be covered with a yellow colored trampoline. 11.2 As per the status report, Const. Manjit Pathania signaled to stop the said vehicle, upon which, the driver of the said vehicle stopped the vehicle. On inquiry, he disclosed his name as Mehar Chand, S/o Manish Ram, and another person, sitting in the vehicle, has disclosed his name as Rakesh Kumar, S/o Sukhdev. 11.3 It has been mentioned in the status report that in the presence of Up-Pradhan and Ward Member, the vehicle was checked and it was found that the said vehicle was carrying country made liquor ‘Una No. 1’, upon which, driver of the vehicle was directed to produce the license to carry the country liquor. Thereafter, driver of the vehicle produced the license. However, perusal of the same revealed that in the permit, said vehicle has not been mentioned, nor route permit was correct, as route for transporting the liquor was from Krishnanagar to Bara-Rangas, whereas, the vehicle was stopped at Bhadmeli, on Hamirpur to Sujanpur road. Thereafter, driver of the vehicle produced the license. However, perusal of the same revealed that in the permit, said vehicle has not been mentioned, nor route permit was correct, as route for transporting the liquor was from Krishnanagar to Bara-Rangas, whereas, the vehicle was stopped at Bhadmeli, on Hamirpur to Sujanpur road. As per the permit, the vehicle authorized to carry the liquor has been mentioned as HP-67A-6016. 11.4 As per the status report, on opening the box, total 200 bottles of country made liquor ‘Una No. 1’ were found. Out of 200 carton Boxes, 134 boxes were of Batch No. 154, 60 boxes were of Batch No. 156, four boxes were of Batch No. 155 and 2 boxes were of Batch No. 153. 11. 5 It has been mentioned in the status report that the liquor was thereafter taken into possession. As per the Police, driver of the vehicle Mehar Chand and Rakesh Kumar were transporting the liquor on the wrong permit. As such, they have committed the offence, punishable under Section 39(1) A of H.P. Excise Act and Section 3(5) of BNS. 11.6 During investigation, it was found that the route permit was in the name of Naveen Kumar, S/o Sh. Prabhat Singh @ Subhash Chand, R/o H. No. 48, Ward No. 8, Naya Nagar, Hamirpur, H.P. He was also arrested in this case. 11.7 It is the further case of the Police that inventory of the said liquor was prepared by the Court of learned Judicial Magistrate First Class, Court No. 3, Hamirpur and two boxes as samples, were separated and sent to RFSL, Mandi, from where, the following report was received: “The contents of above said sample marked here as P/1-1 to P/1- 12 contgain 48.58 degree proof alcohol strength each on an average. Samples marked here as P/2-1 to P-2-12 contain 48.42 degree proof alcohol strength, each on an average.” 11.8 Thereafter, the Police made correspondence with the Deputy Commissioner, State Excise & Taxation Department, Hamirpur, from where, a report has been received, according to which, violation of route permit of authorized vehicle has been found. 12. On the basis of above facts, a prayer has been made to dismiss the present petition. 13. 12. On the basis of above facts, a prayer has been made to dismiss the present petition. 13. So far as the decision of this Court in Shakti Singh’s case (supra) is concerned, the dispute in the said case, was that the quantity of the liquor, so transported, in the vehicle, was in excess of the permit/pass, whereas, in this case, there is violation of the permit, as well as, violation with regard to the vehicle, authorized to transport the liquor, as well as, the route permit. 14. A specific stand has been taken in the status report that the vehicle, authorized to carry the liquor, has been mentioned in the permit as vehicle No HP- 67A-6016, whereas, the liquor was being transported in vehicle No. HP-37B-3180. 15. In the permit, the route, which has been mentioned, is from Krishnanagar to Bara Rangas, and the vehicle authorized to carry the same has been mentioned, as HP-67A-6016. Neither the liquor was being transported in the said vehicle, nor condition, with regard to route has been adhered to, as per the stand taken by the Police. As such, judgment of this Court in Shakti Singh’s case in no way helps the case of the petitioner. 16. In case, the petition is allowed and the liquor is handed over to the petitioner, it would be nothing, but, giving premium to the petitioner over his alleged offence, which is impermissible, under the law. 17. Even otherwise, the explanation of the petitioner, qua alleged defect in the vehicle authorized to carry the contraband, cannot be accepted as gospel truth, at this stage. However, in order to protect the interest of the petitioner, the authorities are directed to dispose of the liquor and deposit the amount, in the department itself, which shall be disbursed, either to the petitioner or to the government, subject to final outcome of the case. 18. In view of above, the present petition is disposed of in aforesaid terms. The pending application(s), if any, are also disposed of.