Calcutta High Court (Appellete Side)
Santanu Ghosh & Anr vs The State Of West Bengal & Ors on 15 November, 2017
Author: Debi Prosad Dey
Bench: Debi Prosad Dey
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debi Prosad Dey
CRR No.3536 of 2016
Santanu Ghosh & Anr..................................Petitioner
Versus
The State of West Bengal & Ors..........Respondents
For the Appellant/ : Mr. Rajdeep Majumder
Petitioner : Mr. Moyukh Mukherjee
For the plaintiffs/
Respondents : Mr. Abhra Mukherjee
: Mr. Dipankar Mahata
Heard on : 29.06.2017, 26.07.2017, 04.08.2017
Judgment on : 15.11.2017
Debi Prosad Dey, J. :-
This is an application for quashing of proceedings in connection with GR case no. 413 of 2014 and SI. S. L. 07/14-15 dated 27th April, 2014 under Section 46(A)(c) of the Bengal Excise Act, 1909 pending before the Court of Additional Chief Judicial Magistrate, Bidhannagar. On the ground that the petitioners are the employees of "Buddha Lounge" and they have been falsely implicated in connection with aforesaid case. Secondly, the petitioners cannot be made liable for the offence under Section 46(A)(c) of the Bengal Excise Act since the petitioners were mere employees of the Buddha Lounge and they did not possess any foreign liquor and they were not engaged in selling of foreign liquor in contravention to the provisions contained in Bengal Excise Act.
Learned Advocate appearing on behalf of the petitioners contended that one Subhomoy Ghosh is the owner of Buddha Lounge and while conducting raid by the officer in charge of Excise Department, some liquors were seized from the said restaurant. It is further submitted that accordingly the owner Subhomoy Ghosh may be made liable for unlawful possession of foreign liquor and selling of foreign liquor from the aforesaid restaurant. The present petitioners were employee of the said restaurant and accordingly they cannot be made liable for the offence under Section 46(a) (c) of the Bengal Excise Act.
Learned Advocate Mr. Mukherjee appearing on behalf of the state contends that the present petitioners had filed application in the trial Court for reopening of the restaurant and the even went up to the first revisionist Court with the prayer for reopening the restaurant. Mr. Mukherjee further contended that during enquiry it has been clearly established that the present petitioners were not only directly involved in possession of unlawful liquor but they were also actively taking part in selling of such unlawful liquor to various customers.
Relying on a decision reported in AIR 1973 SC 2309 (Inder Sen Vs. State of Punjab) learned Advocate for the petitioners contended that it was incumbent upon the prosecution to establish that the petitioners were in conscious possession of such unlawful liquor and the prosecution has failed to establish that the petitioners were unconscious possession of such unlawful liquor alleged to have been seized from the restaurant. The decision referred to herein above can safely be applied against the petitioners since the petitioners took active part in selling unlawful liquor from such restaurant and accordingly the aforesaid decision would in no way help the case of the petitioners.
Section 46(A) (c) may be reproduced below to appreciate the actual state of affairs in connection with this case.
"Section 46A. Penalty for unlawful manufacture of spirit or transport etc. of intoxicating drug, cultivation of hemp, use and possession of materials for manufacture of spirit and intoxicating drug.- Whoever in contravention of this Act or of any rule, notification or order made, issued or given, or a license, permit or pass granted under this Act,-
(a)..........
(b).......
(c) Imports, exports, transports, possesses or sells spirit or intoxicating drug other than bakhar, or (cc) bottles spirit for the purpose of sale; or
(d) works any distillery or brewery, or
(e) collects or sells any portion of hemp plant (Cannabis sativa L.) from which an intoxicating drug can be manufactured or produced shall be punishable -
(i) In the case of an offence under clause (c) or clause (f), when the value of the spirit, intoxicating drug or hemp plant (Cannabis Sativa L.) from which an intoxicating drug can be manufactured or produced is less than two thousand rupees, with imprisonment for a term which may extend to two years and with fine:
Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgement of the court, such imprisonment shall not be, -
(1) For the first offence, for less than one month, and (2) (2) for the second and for every subsequent offence, for less than three months;
(ii) in any other case, with imprisonment for a term which may extend to five years (but shall not be for less than six months) and with fine:
Provided that for special and adequate reasons to be recorded in the judgement of the court, such imprisonment may be for less than six months but shall not be for less than three months." It is therefore apparent from the Section quoted herein above that if anybody possesses spirit or intoxicating drug in contravention of this Act or of any rule notification an order, such person may be made liable under the aforesaid section.
In any view of the matter, it cannot be said that the possession of such unlawful liquor were not in conscious possession of the present petitioners. The present petitioners being aware of such unlawful possession of foreign liquors were engaged in selling such unlawful liquor to various customers in that restaurant. Therefore, at this stage, we cannot hold that the prosecution has failed to make out any case against the present petitioners so as to quash the proceeding under reference. In the result the application for quashing the proceeding under reference stands rejected.
No order as to costs.
The application is accordingly dismissed and disposed of in terms of the aforesaid order.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible (Debi Prosad Dey, J.)