Patna High Court
M/S Majhaulia Sugar Industries Pvt. Ltd vs The State Of Bihar Principal Secretary, ... on 19 October, 2023
Author: Anil Kumar Sinha
Bench: Anil Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1281 of 2021
Arising Out of PS. Case No.-230 Year-2020 Thana- MAJHAULIA District- West Champaran
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1. M/S Majhaulia Sugar Industries Pvt. Ltd. having its sugar Mill located at
Majhaulia, P.O. and P.S. - Majhaulia, District West Champaran (Bihar),
represented through Chief General Manager namely Indeep Singh Bhatia,
Son of Jaswant Singh Bhatia, resident of D-140, Sector 122, Noida, Near
Raghav School, Noida, Gautam Buddha Nagar, Uttar Pradesh- 201301.
2. Indeep Singh Bhatia (Chief General Manager) Son of Jaswant Singh Bhatia
M/S Majhaulia Sugar Industries Pvt. Ltd. Resident of D-140, Sector 122,
Noida, Near Raghav School, Noida, Gautam Buddha Nagar, Uttar Pradesh-
201301, Local address at C/o- Majhaulia Sugar Mills, at Majhaulia, P.O.-
P.S. - Majhaulia, District - West Champaran.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Excise and Prohibition,
Government of Bihar, Patna.
2. The Principal Secretary, Excise and Prohibition, Government of Bihar,
Patna.
3. The Excise Commissioner, Excise and Prohibition, Bihar, Patna.
4. The Excise Inspector, West Champaran at Betiya
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Ashish Giri, Advocate
Ms. Riya Giri, Advocate
Mr. Sumit Kumar Jha, Advocate
For the Respondent/s : Mr.Vivek Prasad, GP 7
Ms. Supragya, AC to GP 7
Ms. Roona, AC to GP 7
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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
CAV JUDGMENT
Date : 19-10-2023
1. The present writ application has been filed for
quashing of the First Information Report bearing Majhauliya
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P.S. Case No. 230 of 2020 dated 26-04-2020 contained in
(Annexure- 6) registered for the offences under Sections 284,
285, 403, 406, 407, 408, 409, 420 and 34 of the I.P.C. read with
Sections 30 (a), 31 of the Bihar Prohibition and Excise Act
2016.
2. The factual matrix of the case is that the petitioner
no. 1 is a company in the name and style of M/s Majhaulia
Sugar Industries Pvt. Ltd. and the petitioner no. 2 is its Chief
General Manager. The petitioners are holding N.O.C. / license
and have a distillery at Majhauliya, which is engaged in
production of ethanol. The ethanol is being transported by the
petitioners from its distillery to various oil companies through
M/s Indian Tankers Pvt. Ltd. after due verification of G.P.S. and
digital seal / lock. According to the petitioners the electronic
locks are being provided by M/s M.S.D. Telemematrix Pvt. Ltd.
3. On 25-04-2020 a team constituted by the
Superintendent [Excise], East Champaran reached near N.H. 28
and found one tanker near an old hotel bearing Registration No.
UP-53-AT-1786 whose one of the seals from five of its
chambers was found broken, which was being used for
siphoning of ethanol in a pick- up van bearing Registration No.
BR-02-GA-1445. Upon search 200 liters container fully loaded
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with ethanol and another container which was connected
through a pipe having 20 liters of ethanol and 04 empty
containers of 35 liters each were found in the pick-up van. In the
tanker three chambers were found without seal and the chamber
rod was also found not related to the digital lock. Accordingly,
on 26.04.2020, an F.I.R. bearing Excise P.S. Case No. 195 of
2020 was registered on the basis of information given, under
Section 30 (a) (f), 31, 32, 36, 38, 41(1) & 47 of the Bihar
Prohibition and Excise Act, 2016 against eight accused persons
i.e. the owner of the tanker, tanker driver, owner of the pick-up
van etc.
4. Subsequently, one another F.I.R. was registered
bearing Majhauliya P.S. Case No. 230 of 2020 on 26.04.2020
against the petitioners and others for the offences under Sections
284, 285, 403, 406, 407, 408, 409, 420 and 34 of the Indian
Penal Code read with Sections 30 (a) and 31 of the Bihar
Prohibition and Excise Act wherein the allegations are with
regard to several violations / infirmities on the part of the
accused persons due to which illegal business of ethanol was
taking place. The petitioners have filed the present case for
quashing of Majhauliya P.S. Case No. 230 of 2020.
5. It is further case of the petitioners that on getting
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information about the occurrence dated 25.04.2020 and being
unaware about Majhauliya P.S. Case No. 230 of 2020 the
petitioner no. 2 lodged an F.I.R. bearing Majhauliya P.S. Case
No. 232 of 2020 dated 27.04.2020 for the offences under
Sections 409, 462, 379, 34 of the I.P.C. read with Section 30
(a), 31 of the Bihar Prohibition and Excise Act 2016 against the
transporter i.e. M/s Indian Tankers Pvt. Ltd. and its driver for
causing loss to the tune of Rs. 11,66,287.50/- for their act of
indulgence in illegal siphoning of ethanol
6. Learned counsel for the petitioners contended that
in relation to one occurrence two FIRs have been lodged. The
FIR against the petitioners has been instituted for the offences
for which an FIR filed earlier already existed. The 1 st FIR is
Excise Case No. 195 of 2020 in which petitioners are not
accused and thereafter 2nd FIR came to be lodged vide
Majhauliya PS Case No. 230 of 2020 in which the petitioners
have been made accused for the same facts and occurrence. The
2nd FIR is not maintainable and is violative of Article 21 of the
Constitution of India.
7. He further argued that just because the name of
petitioners came in the process of investigation the Police is not
empowered to lodge another FIR but can include the accused
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persons in the earlier FIR at the time of filing of charge sheet.
The 2nd FIR is impermissible as it will amount to improvement
of the facts as alleged in the 1 st FIR in respect of an offence
committed in course of same transaction. The continuation of
the 2nd FIR is abuse of the process of law and hence liable to be
quashed. Learned counsel further argued that 2nd FIR under
quashing includes offences under the IPC as well as under the
Bihar Prohibition and Excise Act, 2016 [hereinafter referred to
as the "Excise Act"] and is not maintainable on the ground that
the whole transaction involving production and transportation of
ethanol is governed by the special enactment i.e. Excise Act.
8. Section 30 (f) of the Excise Act is already there in
the 1st FIR. The petitioners have been made accused on the basis
of allegation that the tanker was not locked / sealed by them and
web camera was not working and hence there is connivance of
the petitioners in black marketing but in actuality the sealing of
tanker is the work of Excise Department as per notification
[Annexure- 2 ]. If the ethanol transaction had not caught then
the warehouse would not have been investigated and so the 2 nd
FIR would not have been lodged. The illegal siphoning of
ethanol is which sets the criminal investigation into motion and
the 2nd FIR arose from the 1st FIR as such it does not have its
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independent stand. He further contends that if the Police had
inspected the warehouse in a separate cause of action then 2 nd
FIR would have been maintainable but the case in hand is that
since there was siphoning of ethanol and in that regard
warehouse was raided and 2nd FIR was lodged which is in
continuation of the 1st illegal act therefore 2nd FIR should not
have been lodged and is fit to be quashed. In support of his
argument he relies upon the judgment of the Hon'ble Apex
Court rendered in Krishna Lal Chawla vs. State of U.P. reported
in (2021) 5 SCC 435; Amitbhai Anilchandra Shah vs. Central
Bureau of Investigation reported in (2013) 6 SCC 348 ;
Babubhai vs State of Gujarat reported in (2010) 12 SCC 254
and T.T. Antony vs. State of Kerala reported in (2001) 6 SCC
181.
9. Per contra, Ms. Supragya, learned AC to GP-7 for
the State argued that there are two FIRs because the cause of
action of both FIRs are different. The informants are different
persons, accused are different individuals and the offences
alleged are different from that of 1 st FIR. The cause of action for
the 1st FIR arose when the accused named in the 1 st FIR were
caught trying to siphon illegal liquor / ethanol from the tankers;
however, the cause of action in the 2 nd FIR arose when the
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petitioners breached the terms of the license / N.O.C. as well as
subsequent directions with respect to certain provisions to be
made to safeguard ethanol but did not comply with the same.
There is a clear breach of the terms of license agreement and the
subsequent directions issued by the Excise Department viz.
lapses in the installation of "dharmkanta", "CCTV cameras" as
well as "digital locks" were already there i.e. much before the
incident leading to 1st FIR.
10. She further argued that there is no specific bar to
applicability of the provisions of the Indian Penal Code with the
provisions of the Excise Act even if it is a special act. Lastly she
submitted that petitioners will be absolved of all the liabilities
towards the State and the licensing authority if FIR is quashed
and detail investigation is not done on the 2nd FIR which may
lead to larger conspiracy having broader ramifications. The 1 st
FIR covers smaller field on narrow dimension in which ethanol
was being illegally siphoned by tanker owner, tanker driver,
pick up van owner etc. Learned counsel relied upon the
judgments rendered in State (NCT of Delhi ) vs. Sanjay reported
in (2014) 9 SCC 772, Babubhai vs. State of Gujarat reported in
(2010) 12 SCC 254, Nirmal Singh Kahlon vs State of Punjab
reported in (2009) 1 SCC 441, Varshaben Kantilal Purani vs
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State of Gujarat reported in (2019) 11 SCC 774; Rakesh Kumar
vs. State of Bihar reported in 2022 (3) PLJR 490.
11. I have heard learned counsel for the parties and
have gone through the materials on record. It is not disputed that
two FIRs have been lodged on the same date i.e. 26-04-2020.
The informant of both the FIRs are different persons of different
districts inasmuch as the informant of the 1 st FIR being Excise
PS Case No. 195 of 2020 is one Vijay Kumar Chaudhary,
Inspector (Excise), Sikrahna Region, East Champaran and
informant of the 2nd FIR vide Majhauliya PS Case No. 230 /
2020 is one Raj Kumar Chaudhary, Inspector (Excise), West
Champaran, Bettiah.
12. 1st FIR was lodged inter alia on the fact that on
25-04-2020the Excise Team at the back side of the old hotel "Hajar Bis" situated at East Champaran found that seal of one of the tankers out of five tankers having ethanol stored in it was broken which was being used for siphoning of ethanol in a pick up van. 200 liter container fully filed with ethanol and another container which was connected to a pipe having 20 liters of illicit ethanol and 04 empty container of 35 liters each capacity were found in the pick up van. Three chambers were found without seal and also the chamber rod was found not connected Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023 9/15 which related to digital lock.
13. The 2nd FIR bearing Majhauliya PS Case No. 230 of 2020 has been lodged on the basis of inspection conducted on 25/04/2020 in which in the warehouse of the petitioners- company various irregularities in relation to digital lock, non availability of CCTV camera near the low meter, non installation of "dharmakanta", non availability of the connecting rod and other several irregularities in violation of the condition of licence / N.O.C. and the circular issued by the Department of Excise, Government of Bihar were detected. Several irregularities / illegalities found during the course of inspection are mentioned in the First Information Report under quashing in which it has been alleged that the management of warehouse/company, authorized agency responsible for putting digital lock and tanker operators deliberately and in connivance with each other are promoting black marketing of ethyl alcohol / ethanol.
14. Section 30 of the Excise Act is quoted hereinbelow for ready reference:-
"30. Penalty for unlawful manufacture, import, export, transport, possession, sale, purchase, distribution, etc. of any intoxicant or liquor.- Whoever, in contravention of any provision of this Act or of any rule, regulation, order made, notification Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023 10/15 issued thereunder, or without a valid license, permit or pass issued under this Act, or in breach of any condition of any license, permit or pass renewed or authorisation granted thereunder-
(a) Manufacturers, possesses, buys, sells, distributes, collects, stores, bottles, imports, exports, transports, removes or cultivates any intoxicant, liquor, hemp; or
(b) constructs or establishes or works in any manufactory, distillery, brewery or warehouse; or
(c) Manufactures, uses, keeps or has in his possession any material, utensil, implement or apparatus, or uses any premises, whatsoever, for the purpose of manufacturing any intoxicant or liquor; or
(d) Manufactures any material or film either with or without the State Government logo or logo of any State or wrapper or any other thing in which liquor or intoxicant can be packed or any apparatus or implement or machine, for the purpose of packing any liquor or intoxicant; or
(e) Removes any liquor or intoxicant from any distillery, brewery, warehouse, other place of storage licensed, established, authorized or continued under this Act; or
(f) Manufactures, possesses, sells, distributes, bottles, imports, exports, transports or removes, any preparation made with or without the use of any intoxicant or liquor which can serve as an alcohol or a substitute for alcohol and is used or likely to be used or consumed for the purpose of getting intoxicated;
shall be punishable with imprisonment for the term which may Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023 11/15 extend to life and with fine which may extend to ten lakh rupees.
Provided that the punishment:
(a) For the first offence shall not be less than five years imprisonment and fine of not less than one lakh rupees, and
(b) For the second and subsequent offences shall not be less than ten years rigoruous imprisonment and fine of not less than five lakh rupees."
15. From perusal of the F.I.R. under quashing it appears that various contraventions / breaches / irregularities were found after inspection done by Excise Officials which are allegedly in violation of the terms of license / N.O.C. and the notification / circular issued by the Government under its Excise Department vide Annexure-2. Further in the 2nd FIR the informant has alleged the connivance of three agencies i.e. petitioners- company, authorized agency for putting digital lock and the tanker operators who are allegedly engaged in black marketing of ethanol. Learned counsel for the petitioner relied upon paragraph nos. 20 & 21 of the judgment reported in (2010) 12 SCC 254 Babubhai vs State of Gujarat which say that FIR sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023 12/15 formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the police officer in charge of the police station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the diary. All the other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out as to whether both the FIRs relate to the same incident in respect of same occurrence or in regard to the incidents which are two or more parts of the same transaction. If the answer is in affirmative, the second FIR is liable to be quashed.
16. The respondents / State also relied upon paragraph nos. 16, 17, 18 & 21 of the same judgment i.e. Babubhai case (supra) which say that more than one FIR in respect of same transaction are not permissible but if the two FIR pertains to two different crimes / incident or incident are in Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023 13/15 two or more parts of the same transaction then 2nd FIR is permissible.
17. The petitioner also relied upon Amitbhai Anilchandra Shah vs. Central Bureau of Investigation reported in (2013) 6 SCC 348 specially upon paragraph nos. 37 & 58.3 to 58.6. Paragraph no. 37 of the aforesaid judgment says that the second FIR in respect of an offence or different offences committed in the course of same transaction is not only impermissible but it violates Article 21 of the Constitution of India. In T.T. Antony vs. State of Kerala reported in (2001) 6 SCC 181 the Hon'ble Apex Court has held that registration of second FIR (which is not a cross -case) is violative of Article 21 of the Constitution of India. Paragraph 58.5 of the said judgment says that First Information Report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence / event because whenever any further information is received by the investigating agency, it is always in furtherance of the first FIR.
18. The respondent / State relied upon Anju Chaudhary vs State of Uttar Pradesh & Anr. reported in (2013) 6 SCC 384 for the proposition that the merits of the each case is to be examined whether a subsequently registered FIR is a second Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023 14/15 FIR about the same incident or offence or is based upon distinct or different facts and whether its scope of inquiry is different or not. It will not be appropriate for the court to lay down one straight jacket formula uniformly applicable to all cases. In Nirmal Singh Kahlon vs State of Punjab reported in (2009) 1 SCC 441 the Hon'ble Apex Court has held that 2 nd FIR or subsequent FIR is permissible where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications and it cannot be equated with the earlier conspiracy which covered a smaller field on narrow dimension. The same proposition has been laid down by the Hon'ble Supreme Court in (2019) 11 SCC 774 Varshaben Kantilal Purani Vs State of Gujarat & Ors.
19. Now coming back to the present case as discussed above the 1st & 2nd FIR differ fundamentally from each other inasmuch as the informants of both the FIRs are different officers belonging to two different districts; accused persons are also different and the scope of investigation is also substantially different. In the 2nd FIR the possibility of larger conspiracy after inspection of the warehouse of the company has been alleged which may have broader ramifications which cannot be equated with the contents of the 1 st FIR in which Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023 15/15 tanker driver, owners of tanker and the pick up van were found indulged in theft / siphoning of ethanol, as such, the 1 st FIR cannot be equated with the 2nd FIR, which are distinct and different from each other having separate cause of action at different places, having different accused persons.
20. In view of the aforesaid discussions on facts as well as on law, this Court is of the considered opinion that the two FIRs are different fundamentally from each other and the petitioners are not able to make out a case for quashing of the 2nd FIR contained in Annexure-6. Accordingly, I find no merit in this petition. Hence, the same is dismissed.
(Anil Kumar Sinha, J)
praful/-AFR
AFR/NAFR AFR
CAV DATE 31-08-2023
Uploading Date 19-10-2023
Transmission Date 19-10-2023