Madhya Pradesh High Court
Ashok vs The State Of Madhya Pradesh on 19 June, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2025:MPHC-IND:14508
1 MCRC-16059-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 19th OF JUNE, 2025
MISC. CRIMINAL CASE No. 16059 of 2025
ASHOK
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Jagdish Baheti - Advocate for the petitioner.
Shri Amit Rawal- GA for the State.
ORDER
1. Present petition under section 528 of BNSS, 2023 is filed for quashing of FIR registered at Crime no. 0687/2024 dated 24/09/2024 at Police Station - Khategaon, District - Dewas for the offence punishable under section 34(2) of M.P. Excise Act, 1915.
2. The exposition of facts giving rise to present petition is as under :
A) Mr. Anikt Yadav, resident of Kannod Road, Khategaon reported to the S.H.O of Police station - Khategaon on 24/09/2024 around 15.20 hours that on the same day, he received information about illegal transportation of liquor for sale through Dhabas, therefore, he along with his fellow reporters Vivek Yadav and Rakesh Jaat intercepted one motorcycle TVS Radeon bearing registration no.M.P.-40-ZB-
Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 19-06-2025 17:52:52NEUTRAL CITATION NO. 2025:MPHC-IND:14508 2 MCRC-16059-2025 7923. Two persons were found with 60 bulk liters country- made desi and foreign liquor. The motorcycle rider and pillion rider fled away leaving the motorcycle and two gunny bags containing illicit liquor on spot. The motorcycle and gunny bags containing liquor were handed over to police station. On such information, the Police station Khategaon registered FIR at Crime no. 0687/2024 for the offence punishable under section 34(2) of M.P. Excise Act, 2015 against two unknown offenders. Ankit Yadav and Vivek Yadav later informed that Dinesh Tomar and Gautam Bachhaniya were transporting the illicit liquor on TVS motorcycle bearing registration no. MP-
40-ZB-7923. Gautam Bachhaniya and Dinesh Tomar were apprehended on 02/12/2024. Gautam and Dinesh, in their statement recorded under section 23(3) of Bharatiya Sakshya Adhiniyam, 2023, informed that they were working at licensed liquor shop of Manish Jaat. Ashok Singh, Manager of one wine shop at Kannod Road, Khategaon provided them country-made desi and foreign liquor for transporting to local Dhabas for sale. Bablu, Ankit and Vivek intercepted them and demanded them Rs. 70,000/- They left the motorcycle and fled away. The police seized their motorcycle and the illicit liquor. Investigation is underway against petitioner Ashok Singh.
3. The FIR is assailed in the petition filed by petitioner Ashok Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 19-06-2025 17:52:52 NEUTRAL CITATION NO. 2025:MPHC-IND:14508 3 MCRC-16059-2025 Singh on following grounds :
i) The disclosure statement made by accused before the Investigation Officer cannot be read into evidence against the petitioner.
ii) The petitioner was working as a Manager at liquor shop licensed to Manish Jaat. The petitioner's action falls within the purview of protection granted to licensed owner.
The Court cannot take cognizance of an offence punishable under section 34 of M.P. Excise Act for contravention of any condition of licence, permit or pass except upon complaint or report of the Collector or an authorized Excise Officer, not below the rank of District Excise Officer. The prosecution on present FIR would be hit by section 61 of the M.P. Excise Act, 1915.
iii) The Magistrate can take cognizance of an offence punishable under the M.P. Excise Act, if the prosecution is instituted within six months from the date of offence. No final report has been submitted till date, therefore, the prosecution would be time barred under section 61 of M.P. Excise Act, 1915.
iv) The duty-paid liquor was transported from one shop to another under the licence of licencee Manish Jaat, therefore, the offence punishable under section 34(2) of M.P. Excise Act Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 19-06-2025 17:52:52 NEUTRAL CITATION NO. 2025:MPHC-IND:14508 4 MCRC-16059-2025 is not made out.
4. It is requested that the FIR bearing Crime no. 0687/2024 registered at the Police station Khategaon, District Dewas be quashed with all consequential proceedings.
5. Learned counsel for the petitioner, in addition to the grounds, referring to the order dated 23/11/2016 passed in MCRC no. 11873/2016 and order dated 26/02/2019 passed in MCRC no. 52860/2018, contended that the alleged offence falls within the purview to breach of condition of licence, therefore, in view of the provision of section 61 of M.P. Excise Act, the petitioner cannot be prosecuted for the offence punishable under section 34(2) of M.P. Excise Act in absence of any complaint or report of the Collector or authorized District Excise Officer. The FIR against the petitioner deserves to be quashed.
6. Per-contra, learned counsel for the State opposed the petition and contended that the investigation is underway. The liquor was allegedly transported without any valid permit for selling through local Dhabas, therefore, it is not a case of breach of condition of licence. The petition is meritless and deserves to be dismissed.
7. Heard learned counsel for both the parties and perused the records.
8. The Supreme Court in case of State of Haryana vs. Ch. Bhajan Lal, reported in AIR 1992 SC 604 after an elaborate consideration of the law and after referring to various earlier decisions, observed in para 108 Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 19-06-2025 17:52:52 NEUTRAL CITATION NO. 2025:MPHC-IND:14508 5 MCRC-16059-2025 as under:-
''108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously Instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.''
9. In the case of Neeharika Infrastructure Vs State of Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 19-06-2025 17:52:52 NEUTRAL CITATION NO. 2025:MPHC-IND:14508 6 MCRC-16059-2025 Maharashtra reported in 2021 SCC Online SC 315 (Three Judge Bench), the Supreme Court reiterated the principles laid down in the case of Bhajanlal (supra) and held that while the Courts ought to be cautious in exercising powers under Section 482 of Cr.P.C ( section 528 of the BNSS,2023), they do have the power to quash the proceedings. The test is whether or not, the allegations in the FIR disclose the commission of a cognizable offence. The Court should not enter into merits of the allegations or trench upon the power of Investigating Agency to investigate into the allegations involving commission of a cognizable offence.
10. Section 34(2) of M.P. Excise Act, 2019 provides as under :
34 Penalty for unlawful manufacture, transport, possession, sale etc.--
(1) Whoever, in contravention of any provision of this Act, or of any rule, notification or order made or issued thereunder, or of any condition of a licence, permit or pass granted under this Act,--
(a) manufactures, transports, imports, exports. colle cts of possesses any intoxicant;
(b) save in the cases provided for in Section 38, sell any intoxicant; of
(c) cultivates bhang; or
(d) taps any toddy production tree/or draws toddy therefrom; or
(e) constructs, or works any distillery brewery or vintn ery; or
(f) uses, keeps or has in his possession any material, still utensil, implement or apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy; or
(g) removes any intoxicant from any distillery, brewery, vintnery or warehouse licensed, established or contained, under this Act;
(h) Bottles any liquor; shall subject to the provisions of sub -section (2), be punishable for every such offence with imprisonment for a term which may extend to one year and fine which shall not be less than five hundred rupees but which may extend to five thousand rupees: Provided that when any person is convicted under this Section of any offence for a second or subsequent time he shall be punishable for every such offence with imprisonment for a term which shall not be less than two months 26, but which may extend to twenty four months and fine which shall not be less than two thousand rupees but which Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 19-06-2025 17:52:52 NEUTRAL CITATION NO. 2025:MPHC-IND:14508 7 MCRC-16059-2025 may extend to ten thousand rupees. .
(2) Notwithstanding anything contained in sub -section (1), if a person is convicted for an offence covered by clause (a) or clause (b) of sub-section (1) and the quantity of the intoxicant being liquor found at the time or in the course of detection of the offence exceeds fifty bulk liter, he shall be punishable with imprisonment for a term which shall not be less than one year hut which may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees :
Provided that when any person is convicted under this section for an offence for second or subsequent time, he shall be punishable for every such offence with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than fifty thousand rupees but may extend to two lac rupee
11. Section 39 of the M.P. Excise Act, 1915 provides as under :
39. Penalty for misconduct by licensees, etc. -- A holder of a licence, permit or pass granted under this Act or any person in the employ of such holder and acting on his behalf, who intentionally --
(a) fails to produce such licence, permit or pass on the demand of any Excise officer or of any other officer duly empowered to make such demand; or
(b) save in a case provided for by Section 34, contravenes any rule made under Section 62; or
(c) does any act in breach of any of the conditions of the licence, permit or pass not otherwise provided for in this Act, shall be punishable in case (a) with fine which may extend to four hundred rupees, and in case (b) or (c) with fine which may ext end to ten thousand rupees.
12. Section 61 of the M.P. Excise Act, 1915 provides as under :
61. Limitation of prosecutions. -- (1) No Court shall take cognizance of an offence punishable --
(a) under Section 34 for contravention of any condition of a licence of permit or pass granted under this Act, Section 37, Section 38, Section 38 -A, Section 39, except on a complaint or report of the Collector or an Excise Officer not below the rank of District Excise officer as may be authorised 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. (2) Except with the special sanction of the State Government, no Judicial Magistrate shall take cognizance of any offence punishable under this Act, or any rule or order thereunder, unless the prosecution is instituted within six months from the date on which the offence is alleged to have been committed.
13. The case on hand is being examined considering the aforestated provisions and prepositions of law.
Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 19-06-2025 17:52:52NEUTRAL CITATION NO. 2025:MPHC-IND:14508 8 MCRC-16059-2025
14. The case diary reveals that when information was sought from the office of District Excise Officer, Dewas regarding batch number of seized illicit liquor, it was reported that the liquor was allotted to the liquor shop at Khategaon licensed to M/s Manish Jaat. The transit past/permit is required for transportation of the liquor from one licencee shop to the other. The office of District Excise Officer, Dewas informed that requisite transit pass or permit was not issued to the licensee on the date of alleged incident. The learned counsel for the petitioner was at loss to show any condition of the license permitting the licensee to transport the liquor without permit or transit pass. Thus, the liquor was prima facie illegally transported without any valid transit pass or permit. It is not case of breach of condition of license, therefore, Section 39 or Section 61 of the M.P. Excise Act would not apply to the case on hand. The benefit of precedents referred to by the petitioner is not available in aforestated factual scenario.
15. In view of the above discussions, no case is made out for quashing of FIR. This Court while considering application for quashing of FIR and consequential proceedings thereof, can neither examine the merits of evidence, nor indulge into scrutiny of veracity and credibility of the allegation on consideration of extraneous factors and circumstances. This Court cannot indulge into appreciation of material collected during investigation on its merits. The allegations in the FIR and the allegation reflected by material collected during investigation cannot be said to be Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 19-06-2025 17:52:52 NEUTRAL CITATION NO. 2025:MPHC-IND:14508 9 MCRC-16059-2025 inherently improbable or absurd. At this juncture, it cannot be said that possibility of conviction is remote and bleak and continuation of criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him. The investigation is at primary stage. The accused/petitioner was not available for investigation. Further investigation might reveal his role and complicity in alleged offence. To scuttle the investigation at this initial stage, without verifying the allegations, would be an abuse of process of Court. Therefore, no case is made out for quashing of FIR and consequential proceedings in exercise of inherent jurisdiction in view law laid down in the case of Bhajanlal and Neeharika (supra).
16. Consequently, the petition under Section 528 of BNSS, 2023 is dismissed.
CC as per rules.
(SANJEEV S KALGAONKAR) JUDGE amol Signature Not Verified Signed by: AMOL NIVRUTTIRAO MAHANAG Signing time: 19-06-2025 17:52:52