Madhya Pradesh High Court
Hotam Shivhare vs The State Of Madhya Pradesh Thr on 17 August, 2017
1 MCRC No. 8341/2017
(Hotam Shivhare vs. State of M.P.)
17.08.2017
Shri R.K. Joshi, Counsel for the applicant.
Shri Prakhar Dhengula, Panel Lawyer for the
respondent/State.
Heard finally.
This petition under Section 482 of CrPC has been filed for quashing the FIR in Crime No.393/2016 registered by Police Station Kampoo, District Gwalior under Sections 34 & 42 of M.P. Excise Act as well as for quashing the charge sheet and further proceedings.
The brief facts of the case are that on 23.07.2016, an information was received that at the triangle of Bela Ki Bawdi a person who was lean and wearing blue jeans was going from the scooter towards Girwai alongwith illegal liquor in the cartoons. On the information of the informant, when the police team reached at the spot, a person wearing blue jeans alongwith two cartoon was starting the scooter of gray colour bearing number M.P.04 NE 3201. He was caught hold by the police and on interrogation he disclosed his name as Hemsingh Kushwah and on checking both the cartoons 100 quarter containing 180 ML each of white country made liquor was found in his possession. On asking about the licence, no licence could be produced. On interrogation, he further stated that he is selling the liquor on commission on the instructions of Contractor Hotam Singh Shivhare. The co-accused was arrested and FIR was registered against the applicant and co-accused person.
It is submitted by the counsel for the applicant that 2 MCRC No. 8341/2017 the Court could not have taken cognizance in view of Section 61 of Excise Act and also there is no admissible evidence against the applicant.
Per contra, it is submitted by the counsel for the State that charge sheet has been filed, therefore, the defence of the applicant may not be considered.
The applicant has been put to investigation on the basis of statement made by the co-accused under Section 27 of the Evidence Act. The case has been registered against him on the complaint of a Police Constable.
It is contended by the counsel for the applicant that in view of the newly incorporated Section 61 of the Excise Act, the Court can take cognizance only on the complaint or report of the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorized by the Collector in this behalf. However, the Court has taken cognizance of the offence on the basis of charge sheet which is bad in the light of Section 61 of Excise Act.
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 3 MCRC No. 8341/2017 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."
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 4 MCRC No. 8341/2017 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.
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."5 MCRC No. 8341/2017
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.
Learned counsel for the applicant submits that a false FIR has been registered against the applicant. No investigation has been made against the applicant. The applicant was having a valid licence issued by the Collector, District Gwalior to sell the country made liquor and the licence was valid from 01.04.2016 to 31.03.2017. The applicant has been implicated on the information of co-accused. The applicant was a valid licensee, hence, no offence has been committed by the applicant as he has not breached any condition of licence granted to him. Therefore, the prosecution of the applicant is bad and without any admissible evidence. Hence, prayed that the FIR registered against the applicant and consequent proceedings may be quashed. The learned counsel also relied upon order dated 19.10.2016 passed by coordinate Bench of this Court passed in the case of Gajendra Singh Bhadoria v. State of M.P. (M.Cr.C.No.11870/ 2016) and order dated 23.11.2016 passed in the case of Gajendra Singh Bhadoria v. State of M.P. (M.Cr.C.No.11873/2016), and submitted that on similar allegations the FIR has been quashed.
Learned Public Prosecutor fairly conceded that except the statement of the co-accused recorded under Section 27 of Evidence Act, there is no other admissible evidence 6 MCRC No. 8341/2017 available against the applicant.
I have considered the submissions of the learned counsel and on perusal of FIR, it appears that co-accused Hem Singh Kushwaha is being prosecuted by the police having found in possession of country made liquor and was not having any licence. He had disclosed that liquor has been purchased from the shop of the applicant.
On behalf of the applicant, copy of the licence has been produced which reveals that licence has been granted by the Collector District Gwalior in favour of the applicant for retail sale of country made liquor from 01.04.2016 to 31.03.2017. The applicant is having a valid licence, therefore, he has a right to sell the liquor. Prima facie, it cannot be said that the applicant has committed any offence under Sections 34 & 42 of M.P. Excise Act as there is no breach of any condition of the licence granted in favour of the applicant. In such circumstances, the prosecution of the applicant certainly amounts to a breach of process of law. Hence, it is a fit case to exercise the inherent powers of this Court.
Consequently, this petition is allowed. FIR registered at Crime No.393/2016 under Sections 34 & 42 of M.P. Excise Act at Police Station-Kampoo, District-Gwalior as well as the charge sheet and further proceedings are hereby quashed.
The petition is disposed of accordingly.
(G.S. Ahluwalia)
(alok) Judge