Orissa High Court
Sarat Kumar Sahoo vs State Of Orissa on 30 April, 2018
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA: CUTTACK
CRLMC NO. 2408 OF 2009
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with G.R. Case No.721 of 2008
pending on the file of S.D.J.M., Jajpur.
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Sarat Kumar Sahoo ....... Petitioner
-Versus-
State of Orissa ....... Opposite party
For Petitioner: - Mr. Arun Kumar Patra
For Opposite Party: - Mr. Chita Ranjan Swain
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 30.04.2018
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S. K. SAHOO, J.The petitioner Sarat Kumar Sahoo in this application under section 482 of the Code of Criminal Procedure, 1973 has challenged the impugned order dated 03.06.2009 passed by the learned S.D.J.M., Jajpur in G.R. Case No.721 of 2008 in taking cognizance of the offence under section 47(a) Bihar and Orissa 2 Excise Act and sections 109/34 of the Indian Penal Code and issuance of process against him.
Mr. Arun Kumar Patra, learned counsel for the petitioner submitted that the petitioner is a licensee of three country spirit shops situated at Jajpur town, Rambag and Binjharpur and under the conditions of the license, he is required to lift minimum guaranteed quantity of country spirit liquor from Orissa State Beverages Corporation Ltd., Nirgundi (hereafter 'OSBC'). On 24.11.2008 the petitioner authorized of Brundaban Samal to lift country spirit liquor from OSBC in respect of the aforesaid three shops and accordingly, Brundaban Samal lifted 44 cartoons of 200 ml of country spirit liquor under delivery challan -cum- invoice dated 24.11.2008 issued by OSBC, Nirgundi and loaded the same in a pickup van bearing registration no. OR 05 AA 8278 for transportation to the respective shops situated at Jajpur town, Rambag and Binjharpur. It is further contended that the vehicle reached at Jajpur town and unloaded 23 cartoons of country spirit liquor in the go down of Jajpur country spirit shop and while the vehicle was proceeding to the other two country spirit shops, the S.I. of Jajpur illegally seized the liquor purchased from OSBC. In support of contention, the learned counsel for the petitioner has 3 annexed the licenses issued from 01.04.2008 to 31.03.2009 in respect of the three country spirit shops situated at Jajpur town, Rambag and Binjharpur by the Superintendent of Excise, Jajpur and he has also annexed the delivery challans -cum- invoices dated 24.11.2008 issued by the OSBC. It is further contended by the learned counsel for the petitioner that the ingredients of offence under section 47(a) of the Bihar and Orissa Excise Act are not attracted and though all the necessary documents were produced before the investigating officer but without considering the same, in a mechanical manner charge sheet has been submitted and the learned S.D.J.M., Jajpur without proper application of mind has passed the impugned order in taking cognizance of the offences and issuing process against the petitioner. It is further contended that in view of the fact that no illegality has been committed by the petitioner in transporting the country spirit liquor cartoons after lifting the same from OSBC, Nirgundi under valid delivery challans -cum- invoices, unless this Court invokes its inherent power under section 482 of Cr.P.C. to quash the impugned order so far as the petitioner is concerned, the petitioner will be seriously prejudiced.
Mr. Chita Ranjan Swain, learned Addl. Standing Counsel for the State on the other hand placed the counter 4 affidavit which has been filed on behalf of the opposite party. In the affidavit it is mentioned as follows:-
"6.........On the information of Brundaban Samal, the ASI immediately proceeded the Bada Bazar along with staffs and found the said pickup van was parked with liquor cartoons and the driver Abtar Khan present in the vehicle. On verification, he found 20 nos. of liquor cartoons loaded in the pickup van and on challenge the driver produced a challan pertaining to transportation of 21 cartoons of CS liquor from Beverage Corporation Odisha, Nirgundi on 24.11.2008. It was noticed that the driver left Nirgundi at about 5.30 p.m. on 24.11.2008 with a person namely Nirakar Sahoo, S/o.
Madanmohan Sahoo of Rambag, P.S./Dist:- Jajpur. They reached in the town in odd hours of night and the petitioner had directed them to keep the liquor cartoons at different places beyond the licensed shop. Although they received 21 cartons of liquor from the Company viz. 11 cartoons for Binjharpur licensed shop and 10 cartoons for Rambag Licensed shop of the petitioner but on physical verification there was shortage of one cartoon of liquor against 21 cartoons issued. On being asked, the driver Abtar Khan stated that he is driving the pickup van No.OR 05 AA 8278 and admitted that he was directed by the licensee to lift the liquor 5 cartoons to store and transport the same to different Kochia centers in Jajpur Town and its periphery villages which violates the license rule. Hence the informant seized the said pickup van and 20 cartoons of liquor under a proper seizure list from the possession of Abtar Khan with the pickup van. There was no order to deliver one cartoon from the pickup van to store at other place beyond the licensed shop at Rambag and at Binjharpur. In the Challan, it was clearly mentioned that out of 21 cartoons, 10 cartoons for Rambag shop and 11 cartoons for Binjharpur shop. Since there was prima facie evidence well made out against four accused persons including the petitioner, the I.O. arrested two accused persons on the same day and forwarded them to the Court of S.D.J.M., Jajpur in Jajpur P.S. Case No.383 of 2008 under section 47(a) B & O Excise Act/109/34 IPC.
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10. That in reply to the averments made in para-5 of the Criminal Misc. Case, it is humbly submitted that the accused persons transported liquor cartoon to Kochia centre, which violated the contravention of this Act without any authority, they are liable u/s. 47 (a) B & O Excise Act."6
On hearing the learned counsels for the respective parties and after careful analysis of the materials on record, it is apparent that the petitioner is a licensee of three country spirit shops which are located at Jajpur Town, Rambag and Binjharpur and he was issued with licenses as per the orders of the Superintendent of Excise, Jajpur to lift monthly minimum guaranteed quantity of country spirit liquor which has been fixed in the license itself. It is also not dispute that on the relevant day i.e. on 24.11.2008, he lifted country spirit liquors from the OSBC, Nirgundi. The location of country spirit shops are also mentioned in the delivery challans -cum- invoices itself. The man who was carrying the cartoons of country spirit liquor at the relevant point of time is one Brundaban Samal who has been authorized by the petitioner to carry the same. The assumption of the investigating agency that the liquor cartoons were taken to Kochia center in Jajpur town and its periphery villages which violates the license rule is without any substantial material on record. Therefore, it cannot be said that the petitioner has flouted the conditions of the licenses.
In view of the foregoing discussions, it cannot be said that the petitioner has committed any offence under section 47(a) of the Bihar and Orissa Excise Act. The submission of 7 charge sheet without taking note of the relevant documents produced by the petitioner shows malafideness on the part of the investigating agency.
Therefore, I am inclined to accept the prayer made by the petitioner in this application and quash the impugned order dated 03.06.2009 passed by learned S.D.J.M., Jajpur in G.R. Case No.721 of 2008 so far as the petitioner is concerned. The proceedings shall continue in respect of the other co-accused persons.
With the aforesaid observation, the CRLMC application is allowed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 30th April, 2018/Sukanta