Madhya Pradesh High Court
Govind Bhayal vs The State Of Madhya Pradesh on 8 June, 2021
Equivalent citations: AIRONLINE 2021 MP 689
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
HIGH COURT OF MADHYA PRADESH : JABALPUR.
S.B : HON'BLE SHRI JUSTICE RAJENDRA KUMAR SRIVASTAVA
M.CR.C. NO.2011/2020
Govind Bhayal.
Vs.
State of Madhya Pradesh.
PRESENT :
Shri Sharad Verma, learned counsel for the petitioner.
Shri Ramji Pandey, learned Panel Lawyer for the respondent-State.
ORDER
(8.6.2021) Accused/petitioner has filed this Miscellaneous Criminal Case under Section 482 of the Cr.P.C. (in short ''the Code'') to quash the FIR and consequential proceedings of Crime No.593/2019, registered at Police Station Patan, District Jabalpur, for offence punishable under Section 34 of M.P. Excise Act, 1915.
2: Case of prosecution in short is that on 19.9.2019, Assistant Sub Inspector Tikaram Prajapati of Police Station Patan, received an information that some persons are transporting illicit liquor by a vehicle (Pick up) bearing registration No.MP-20-G/1858. Thereafter, Assistant Sub Inspector and other police officials reached on the spot, they tried to stop the said vehicle No. MP-20-20-G/1858, but driver of the said vehicle did not stop the said vehicle. After some time driver left the said vehicle on the road and ran away. The said vehicle was searched and 1674 bulk liters of 2 country made liquor was found, thereafter liquor and vehicle were seized. It is found that co-accused Mohd. Taj @ Tajju is the registered owner of the aid vehicle. FIR was lodged. On 30.9.2019, co-accused Mohd. Taj @ Tajju was arrested, his memorandum statement under Section 27 of the Evidence Act was recorded and he disclosed that other co-accused bought the alleged liquor from the present accused/petitioner.
3: Learned counsel for the accused/petitioner submits that initiation of criminal proceedings against the accused/ petitioner is purely baseless. Present accused/petitioner is not registered owner of that vehicle. He was not present on the spot. Accused/petitioner is made as an accused upon the memorandum statement of co-accused. No other material is available against the accused/petitioner. Statement of co-accused has been recorded under Section 27 of the Evidence Act, which is not admissible with regard to the present accused/petitioner. Apart from this, accused/petitioner is licensee of foreign liquor and country made liquor. Therefore, criminal prosecution against the accused/petitioner is also barred by Section 61 of M.P. Excise Act, so initiation of criminal proceedings against the accused/petitioner is contrary to law. Therefore, he prays for quashing the FIR and consequential proceedings against the accused/petitioner.
4: Learned counsel for the respondent-State submits that there is sufficient material available against the accused/petitioner. So, it is not a proper case in which inherent jurisdiction can be invoked, therefore, petition is liable to be dismissed.
5: Heard both the parties and perused the record.
36: It is evident from the record that 1674 bulk liters country made liquor was seized from the said vehicle bearing registration No.MP-20-G/1858. At that time vehicle was parked on the road. It is alleged by prosecution that driver and other person ran away from the spot. Thereafter, it is found that co-accused Mohd. Taj @ Tajju is registered owner of the said vehicle, he was arrested on 30.9.2019 and his statement under Section 27 of the Evidence Act was recorded. He disclosed that present accused/petitioner has liquor shop at Narsinghgarh, District Damoh. Other co-accused bought liquor from the shop of present accused/petitioner. Thereafter, other co-accused kept the alleged liquor in the said vehicle. When co- accused was transporting liquor, then vehicle was stopped by the police officials. So, it is evident that accused/petitioner is made as an accused upon the memorandum statement of co-accused Mohd. Taj @ Tajju.
7: On analyzing the provisions of Section 27 of the Evidence Act, it is crystal clear that the evidence of memoranda given by the co-accused persons under Section 27 of the Evidence Act to the police can be accepted so far as articles recovered from the accused and for the discovery of the items. Except the above circumstances, no other evidence has been collected in the present case, against the present petitioner. Hence, it is prima-facie indicated that the applicant has conspired or connived with the accused persons and with an intention has committed the crime cannot be presumed.
8: In the case of Prakash Singh Vs. State of MP, 1994 (II) MPWN 72 , a coordinate bench of this Court has held that :-
4"The statement admissible under Section 27 of the Evidence Act are the statements, which could be used as evidence against the maker and not against any other person. Under Section 27 only portions of information given by an accused which are admissible are those which relate distinctly to the facts discovered thereby. Consequently, statements by an accused which do not related to aforesaid facts but involve other accused are inadmissible under Section 27 against the later."
9: Similarly, in the case of Raghu Thakur Vs. State of MP, 2012 (4) MPHT 116, this Court has held that :-
"6. A plain reading of Section 27 of Indian Evidence Act indicates that the statement under Section 27 of Indian Evidence Act is an exception to the ban imposed upon the Courts to utilize the confessional statement made under Sections 25 & 27 of Indian Evidence Act, so as to protect a person making disclosure from being falsely implicated by the police in whose custody that person remains at the time of making disclosure. The provision of Section 27 of Indian Evidence Act further indicates that the facts disclosed under Section 27 of the Indian Evidence Act can be used only against the person making disclosure and not against any other person."
10: Except for the aforesaid disclosure by the co-accused persons, there is no evidence against the petitioner available on record, which may establish that illicit liquor belonged to the petitioner. It is also not the case of the prosecution that the vehicle in which, illegal liquor was being transported belongs to the petitioner. The memorandum under Section 27 of the Evidence Act is confessional statement to the police, which also is hit by Section 25 of the Evidence Act and cannot be accepted as legal evidence against the petitioner in the absence of other incriminating evidence.
11 : In the case of R.P.Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan lal, 1992, Supp.(1) SCC 335, it is held that in the following categories of cases, the inherent power can be invoked to quash the criminal proceeding :-
5"(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction ;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged ;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
12 : In the instant case except the memorandum of co-accused, Mohd. Taj @ Tajju, no other material is available on record against the accused/petitioner. There is no material available on record on which it can be said that seized liquor belonged to the accused/petitioner. So, prima facie, it appears that no legal material is available on record against the accused/petitioner on which he has been impleaded as an accused/petitioner.
13 : Apart from this, accused/petitioner is licensee for sale of foreign and country liquor since 1.4.2019 to 31.3.2020.
14 : In the case of Girish Bhatnagar Vs. State of MP in M.Cr.C. No. 4646/2017 passed by this Court.
Newly amended Section 61 of the Act reads as under:-
"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 licence, 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 6 thereunder, unless the prosecution is instituted within six months from the date on which the offence is alleged to have been committed."
Complaint has been defined under Section 2 (d) of Cr.P.C. which reads as under:-
"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
It is clear that if a person is found to be flouting the conditions of licence and if he is required to be prosecuted then the complaint has to be filed by the Collector or an Officer authorised by the Collector as contemplated under Section 61 of the Act. The coordinate Bench of this Court by order dated 23.11.2016 passed in the case of Gajendra Singh Bhadoria v. State of M.P. (M.Cr.C.No.11870/ 2016) has held as under:-
"Meaning thereby, if a person is found to be flouting the licence conditions and is required to be prosecuted then the private complaint has to be filed by the Collector or an Officer authorised by the Collector as contemplated in Section 61 of the Act then only prosecution can be maintainable against any person who is having a licence. In some special circumstances, power to file a private complaint has been given to a competent authority/designated officer and therefore, complaint in any manner should have been filed by the Collector or his Authorised Officer as per Section 61 of the Act. Report regarding contravention of any of the conditions of licence could have been made by the Collector or an Excise Officer while registering an offence by competent Police Station or Police Station (Excise). Therefore, the police may exercise the power to register the FIR provided the said report is made by either Collector or any other Officer authorised in this behalf by the Collector. Here in the present case, report is admittedly not by either Collector or other Officer authorised by him, therefore, the prosecution against the present applicant is against Section 61 of the Act.7
In the instant case, the prosecution in respect of offence under Section 34 of the Act has been initiated at the instance of police and therefore, learned Magistrate could not have taken cognizance of the offence in view of the provisions embodied in Section 61 (1) (a) of the Act. The power of authorisation by the Collector is not absolute, it is circumscribed. It is not open to him to authorise any officer. The said view is further supported by the view expressed earlier by this Court in the matter of Shankarlal and Ors. Vs. State of M.P., 1990 JLJ 782 and Vijay Kumar & Rajendra Kumar & Co. Vs. State of M.P., 1987 (II) MPWN 54 as well as Gomti Prasad & Ors. Vs. State of M.P., 1976 MPWN 232.
With the amendment Act of 2014, M.P.Excise (Amended Act), 2014 has included Section 34 into the ambit of Section 61 of the Act. Thus, intention of legislature is clear wherein the offence coming under Section 34 of the Act also are to be treated and prosecuted in a manner as provided under Section 61 of the Act. In the light of Section 4 and 5 of the Cr.P.C., potency and effect of Section 61 becomes more vigorous because it is settled in law that Special Law prevails over General Law. Here the previsions of M.P. Excise Act,1915 would prevail over the provisions of Cr.P.C."
Thus, it is clear that since the complaint has not been filed either by the Collector or by his authorised officer and the FIR was not lodged on the report of the Collector or any officer authorised by him in this behalf, therefore, the Court below could not have taken cognizance of the case."
15. In another case Gajendra Bhadoriya Vs. State of M.P. (M.Cr.C No. 11873/2016) passed by co-ordinate bench of this High Court has quashed the FIR on similar allegations.
16 : It is presumed that accused/petitioner breach any condition or process of law, therefore, he cannot be prosecuted except on the complaint filed by the Collector or an Excise Officer not below the rank of District Excise Officer 8 as may be authorised by the Collector in this behalf. On the basis of condition precedent, the FIR and consequential proceedings of Crime No. 593/2019, registered at Police Station Patan, District Jabalpur, for offence punishable under Section 34 of M.P. Excise Act, 1915, against the accused/petitioner is hereby quashed. However, it is made clear that this order does not debar the Collector or District Excise Officer to file a complaint against the accused/ petitioner in accordance with law.
17: Accordingly, this petition is allowed.
(RAJENDRA KUMAR SRIVASTAVA) JUDGE A.Praj.
Digitally signed by ASHWANI PRAJAPATIDate: 2021.06.09 17:14:44 +05'30'