Madhya Pradesh High Court
Ravi Lakhera vs The State Of Madhya Pradesh on 6 August, 2021
Author: Sunita Yadav
Bench: Sunita Yadav
1
HIGH COURT OF MADHYA PRADESH, JABALPUR
Single Bench: Hon'ble Mrs. Justice Sunita Yadav
MCRC No.37373/2021
Ravi Lakhera
Vs.
State of Madhya Pradesh
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Counsel for the Petitioner : Mr. Sandeep Singh Baghel,
Advocate.
Counsel for the Respondent/ : Mr. Pradeep Dwivedi, Panel
State Lawyer
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ORDER
(Jabalpur, Dated : 06/08/2021) This petition under Section 482 Cr.P.C. has been filed by the petitioner seeking quashment of FIR as well as charge sheet of Crime No.81/2021 registered at Police Station Rajnagar, District Chhattarpur (M.P.) against him whereby offence under Section 34(2) of excise Act has been registered against the petitioner along with other co-accused persons.
2. The brief facts of the case are that on 28.3.2021 on the basis of a secret information given by the informant, concerning police reached the spot and seized 24 cartons, containing 216 liters of country made liquor from the possession of co-accused Satyam Singh and Karan Singh and on the basis of aforesaid seizure, FIR has been lodged against them. Thereafter, during the course of interrogation Satyam Singh and Karan Singh stated that the liqour was procured from the present petitioner-Ravi Lakhera. On the basis of the memorandum of co-accused, the FIR under crime no. 21/2021 2 has been registered against the present petitioner
3. Heard learned counsel for both the parties.
4. Learned counsel for the petitioner submits that if the contention of FIR is accepted to be truth at its face value, even then no offence is made out against the petitioner because the present petitioner is having the license from 01.04.2021 to 31.03.2022 for selling country made liquor. Section 61 of the M.P. Excise Act has been amended with effect from 22.08.2014 after this amendment, no Court can take cognizance of any offence punishable under Section 34 of the Act for contravention of any condition of license, permit, pass except complaint or report of the Collector or Excise Collector not below the rank of District Excise Officer or as may be authorized by the Collector in this behalf. The present petitioner has not been prosecuted in the instance of Collector of his authorized representative nor report has been submitted by the Collector or his representative, thus no case is made out against the petitioner.
5. Learned counsel for the petitioner further submits that the petitioner has been made accused in this case only on the basis of the statement given by co-accused persons which is not admissible in the eyes of law, but the police has registered the case against the petitioner malafidely to harass the petitioner.
6. It is further submitted by the counsel for the petitioner that the superior authority i.e. SDOP, Rajnagar, has given clear finding that the involvement of the present petitioner in the instant crime or place, is not found but the SHO, Rajnagar, has overlooked the report 3 of superior authority and has filed Challan against the present petitioner. From the seizure report, it can be clearly gathered that the batch number of liquor seized by the Police has not been sanctioned or issued to the present petitioner. Therefore, the FIR as well as the Charge-sheet bearing Crime No.81/2021 registered against the petitioner at Police Station Rajnagar, District Chhatarpur (M.P.) deserves to be quashed.
7. Learned Panel Lawyer on the other hand submitted that prima facie there is material available on record to indicate that the petitioner has committed offence, therefore, the petition should be dismissed.
8. The FIR Annexure A-1 bearing crime No. 81/2021 for offence punishable under Section 34(2) of Excise Act, reveals that co- accused namely Satyam Singh S/o Pratap Singh Parmar and Karan Prajapati S/o Santosh Prajapati were apprehended by police having found in possession of 216 liters of country made liquor, without having any license. As per the contention of the petitioner on the basis of statements of co-accused persons in their memorandum, the petitioner has been made accused in the aforesaid crime number. The petitioner has filed the copy of license issued in his name on a retail sale of country spirit which is Annexure A-2. From perusal of Annexure A-2, it transpires that the petitioner has been granted license for retail sale of the country made spirit from 01.04.2021 to 31.03.2022. At this juncture the provisions of Section 61 of M.P. Excise Act needs to be looked into which reads as under: 4
"61. Limitation of prosecution(1) No court shall take cognizance of an offence punishable-(a) under [Section 34 for the contravention of any condition of a license, permit or pass granted under this Act, Section 37], Section 38, section 38-A, section 39, except on a complaint or report the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorized by the Collector in this behalf;
(b) under any other section of this Act other than section 49 except on the complaint or report of an Excise Officer or Police Officer."
9. Section 61 reflects that the complaint is to be filed by the Collector or his authorized officer or on the report on the case may be. Here in the present case, admittedly neither the complaint has been made by the Collector to the police nor in the form of private complaint to the competent criminal court nor any report has been sent by the Collector or any authorized officer on his behalf. Therefore the prosecution against the present petitioner is against the provision of Section 61 of the Act.
10. Since the petitioner is having valid license issued by the District Excise Officer, therefore, considering the fact that petitioner having valid license on his right to sale liquor, it can not be assumed that the petitioner has committed any offence under Section 34 (or 42 of the Act.), in the case of Smt.Nagawwa Vs. Veerann Shivalingappa Knojalgi and Ors., AIR 1976 SC 1947 and State of Haryana and Ors. Vs. Ch.Bhajan Lal and Ors., AIR 1992 SC 604, the Supreme Court has referred the illustrative cases wherein the proceedings against the accused can be quashed or set aside 5 which are as under:-
"(1) Where the allegations made in the complaint of the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused.
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been base either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."
11. The present case of the petitioner is covered under illustration No.1 to 4 of the case of Smt.Nagawwa (supra). Consequently, the present petition is allowed and the FIR registered at Police Station Rajnagar District-Chhattarpur(M.P.) bearing crime No.81/2021 for offence punishable under Section 34(2) of the Excise Act against the present petitioner Ravi Lakhera stands quashed.
12. Accordingly, this petition filed under Section 482 of Cr.P.C. is allowed and disposed of.
(Sunita Yadav) Judge SM 6