Kunal Chawala vs State Of U.P. And Another on 24 May, 2023

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Allahabad High Court

Kunal Chawala vs State Of U.P. And Another on 24 May, 2023

2. Heard Sri Gopal S. Chaturvedi, learned Senior Advocate assisted by Sri Dileep Kumar Pandey, learned counsel for the applicant and Sri Shashi Kant Pandey, learned brief holder for the State of U.P. and perused the records.

3. The present Criminal Misc. Application U/S 482 Cr.P.C. has been filed by the applicant Kunal Chawala with the following prayers:

"It is, therefore Most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the Charge Sheet dated 26.02.2022 and cognizance/summoning order dated 28.02.2022 as well as entire proceeding in Case No. 11020 of 2022 (State Vs. Raman Jaiswal and others), under Sections 420, 120-B IPC and Section 60, 63, 72 of U.P. Excise Act, arising out of Case Crime No. 666 of 2021, Police Station- Madhuban Bapudham, District Ghaziabad, pending before the Court of learned Chief Judicial Magistrate, Ghaziabad.

It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceeding of Case No. 11020 of 2022 (State Vs. Raman Jaiswal and others), under Sections 420, 120-B IPC and Section 60, 63, 72 of U.P. Excise Act, arising out of Case Crime No. 666 of 2021, Police Station- Madhuban Bapudham, District Ghaziabad, pending before the Court of learned Chief Judicial Magistrate, Ghaziabad, during the pendency of the present case, otherwise the applicant shall suffer irreparable loss and injury, and/or may pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

4. The prosecution case as per the First Information Report lodged on 30.12.2021 by Smt. Sheelabh Mishra the Excise Inspector, Sector-3, Ghaziabad, the opposite party no.2 under Sections 420, 120-B IPC and Section 60, 63, 72 of U.P. Excise Act, 1910, Police Station- Madhuban Bapudham, District Ghaziabad against the applicant Kunal Chawala, Raman Jaiswal, Ramveer Singh, Sunil Kumar, Lalji Yadav and Vipin Yadav on the basis of a recovery memo of recovery of 4809 cartons and 266 loose bottles of Indian Made Foreign Liquor, arrest of four accused persons and recovery of four vehicles being Truck No. HR 55 X 0004, Truck No. HR 68 C 5032, Ford Ecosport DL 5 CR 468 and Hyundai i-20 UP 16 Z 0006 alleging therein that FIR No. 385 of 2021 was lodged in District Moradabad in which Nagendra Yadav resident of Meerut was apprehended transporting 40 bottles of Indian Made Foreign Liquor. He disclosed that the liquor was brought from the custom godown of Kunal Chawla from Ghaziabad and he supplies it illegally in various Districts in Uttar Pradesh. For the supply, Vipin Yadav who is the person of Kunal Chawla and having mobile No. 8800482499 helps him and by calling on the said number liquor can be called anywhere. On the said information, the District Excise Officer, Ghaziabad under supervision of the first informant along with Excise Inspectors and Enforcement Officers of Excise Department of Meerut formed a team. On the basis of information received from Moradabad on 29.12.2021, the said Officers reached the godown of Kunal Chawla in P.S. Madhuban. The main gate of the godown was open and two trucks were standing inside from which cartons of liquor was being kept inside. Two persons met inside. On asking, they disclosed their names as Raman Jaiswal and Ramveer Singh. On further asking, they disclosed that they were in the said godown for Kunal Chawla and their work is to get the cartons of liquor unloaded and supplied to various places. On asking about Vipin Yadav they refused to tell anything but on checking their mobiles, the number of Vipin Yadav was found in it and their were regular calls on the mobile. On being suspicious, the godown was searched thoroughly. The papers with regards to the material which was being unloaded from the trucks was demanded which could not be shown. The drivers of the truck disclosed their names as Sunil Kumar and Lalji. They also could not show the papers of the material on demand. On asking for license with regards to the liquor kept in the godown, the persons could not show any license and neither could produce any documents with regards to the stock and the details of it. From Truck No. HR 55 X 0048 Ballentine brand liquor was being unloaded and on other truck No. HR 68 C 5032, 500 cartons of Red Label brand liquor was present which was being unloaded. The godown was then inspected where liquor of various brands were found. A list was then drawn by the said team of 75 Indian Made Foreign Liquor which in total was in 4809 cartons and there were 266 loose bottles. The cartons were inspected and in some cartons there was no tag of FSSAI and mother company which would go to show that the material did not come through the legal channel. The Government of India and the State Government were incurring loss of customs and excise duty. Apart from this, there was different batch numbers of mother company. Even the batch numbers and date of manufacture were missing. On thorough inspection, 50 plastic bags of white colour, one blue colour plastic bag, one packet of rubber band, 7 bundles of tape, one packet of black polythene, one packet of blue polythene, 180 empty boxes of Glenfiddich and five seals which were used in boxes were found. On further probe from the said persons, they stated that they work for Kunal Chawla and the liquor is transported in black ploythenes to various places. In the Ford Ecosport and Hyundai i-20 also liquor was recovered. On probing Raman Jaiswal and Ramveer Singh they disclosed that on the instruction from godown of Kunal Chawla delivery of liquor in various places in the State and in various districts and also in Ghaziabad is done without payment of customs duty and excise duty. It is stated that as such Kunal Chawla and other persons are running a gang due to which Government is being defrauded of its customs duty and State Government is also being defrauded of excise duty. Samples of the material recovered was drawn and recovery memo was prepared which was given for lodging of the First Information Report and the First Information Report was thus lodged.

5. The investigation in the matter concluded and a charge sheet was submitted against Raman Jaiswal, Ramveer Singh, Sunil Kumar, Lalji Yadav and Kunal Chawla (the present applicant) under Sections 420, 120-B IPC and Section 60, 63, 63 of the Uttar Pradesh Excise Act, 1910.

6. The trial court vide its order dated 28.02.2022 took cognizance upon the said charge sheet and summoned the applicant Kunal Chawla and other accused persons to face trial.

7. The applicant was granted anticipatory bail vide order dated 08.02.2022 passed by the Sessions Judge, Ghaziabad in Crl. Misc. Anticipatory Bail Application No. 21 of 2022 (Kunal Chawla Vs. State of U.P.).

8. The trial court vide its order dated 30.03.2023 framed charges against the applicant under Sections 420, 120-B IPC and Section 60, 63 of the Uttar Pradesh Excise Act, 1910. The said charge was read to the applicant-accused who pleaded not guilty and claimed to be tried.

9. The trial then started as Criminal Case No. 753 of 2022 (State of U.P. Vs. Raman Jaiswal and others) in which the statement of PW-1 the first informant Sheelabh Mishra started to be recorded on 22.03.2023 which concluded on 04.05.2023 and then the statement of Akhilesh Verma the Excise Inspector, Ghaziabad was recorded as PW-2 which started on 11.04.2023 and is yet to be concluded.

10. During the pendency of investigation, the applicant filed a writ petition before this Court numbered as Criminal Misc. Writ Petition No. 13402 of 2022 (Kunal Chawla Vs. State of U.P and 2 others) for quashing of the First Information Report with a further prayer to not to arrest him in the case in which a Division Bench of this Court vide order dated 19.09.2022 directed that till the next date of listing or till the submission of police report under Section 173(2) Cr.P.C. whichever is earlier, the respondents are restrained to arrest the petitioner pursuant to the impugned FIR subject to cooperation in the on going investigation.

The present application under Section 482 Cr.P.C. has thus been filed with the prayers as aforesaid.

11. Learned counsel for the applicant argued as follows:-

(i) Cognizance could not have been taken by the trial court for offences under Section 60, 63 of the Excise Act as the same cannot be done on a police report. As per Section 70 of the Excise Act, cognizance can be taken on a complaint or report of an Excise Officer only. The trial against the applicant is void ab-initio as the same cannot proceed.

(ii) No offence whatsoever under Sections 420, 120-B IPC is made out. There is no fraudulent act, no false representation and there is nothing dishonest which has come in evidence which would make out a case against the applicant.

(iii) The applicant Kunal Chawla and his wife Ruchi Chawla are the Directors of M/s Mehar Global Spirit Private Ltd. The company has been incorporated on 05.11.2018 under the Companies Act, 2013 but the company has not been made as an accused and as such the Director of the company cannot be prosecuted. Reliance has been placed upon the judgment of the Apex Court in the case of Dayle De Souza Vs. Government of India through Deputy Chief Labour Commissioner and another : AIR 2021 SC 5626.

(iv) If the case is of evasion of customs and excise duty then the concerned relevant authorities should have proceeded as per law and should have taken action for it but the charge as framed does not in any manner show that the applicant is being tried for it.

(v) A petition under Section 482 Cr.P.C. for quashing of the proceedings is maintainable even if the trial has started and some of the witnesses have been examined as has been held by a Division Bench of this Court in the case of Shueb Mahmood Kidwai @ Bobby Vs. State of U.P. : (2021) (0) Supreme (All) 122.

(vi) Reliance has been placed upon the judgment of the Apex Court in the case of Surinder Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence : (2018) 8 SCC 271 and while relying upon paragraph nos. 7, 8 and 14 it is argued that in so far as the evidence against the applicant is concerned, the same is only a confession of co-accused. The court may take the confession into consideration but the same is not a proof, there must be other evidence also to corroborate it.

12. Per contra, learned counsel for the State opposed the prayer for quashing and argued as follows:

(i) The applicant is named in the First Information Report. There is an allegation that the applicant is the owner of godown in question from where illicit liquor has been recovered.

(ii) In so far as the ownership of godown is concerned, the same has not been disputed and even the material as has been recovered has not been disputed.

(iii) The allegations in the First Information Report prima facie make out a case against the applicant.

(iv) In so far as the allegations of the offences under the Indian Penal Code are concerned, it is clear from the perusal of the First Information Report that there is an allegation that illegal/illicit liquor was found for which the documents could not be shown and even the liquor was not having any tagging of FSSAI and mother company which would go to show that the same was not coming through genuine channels. There is further an allegation that the batch number and the date of manufacture were also not mentioned. It is submitted that even many empty boxes of liquor were found. No satisfactory reply was given by the persons there. It is submitted that the proceedings are under an Special Act and general law. The proceedings are not barred to continue together.

(v) In so far as the argument of the company not being made as an accused is concerned and the proceedings be quashed on the said ground is concerned, prima facie it was found that godown was under the ownership of the applicant and whether the same was for the use of the company or not, is a matter of trial.

(vi) The trial in the present matter has started in which one witness has been examined and the statement of the second witness is being recorded. The quashing of the proceedings at this stage, may not be in the fitness of things as scuttling the trial at this stage will not be proper.

13. After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is named in the First Information Report. There are allegations against him that illegal liquor was being unloaded from the truck and being stocked in his godown. The material as found in the godown was deficient for certain necessary formalities due to which a conclusion was drawn that the same has not come through legal channel. Even there was no explanation and presentation of relevant documents by the concerned persons with regards to the same. In the present petition also the ownership of godown and the recovery of the material is not challenged. After recovery of the material and arrest of some of the accused, the First Information Report was lodged after which the investigation concluded and charge sheet was submitted on which the trial court took cognizance and summoned the applicant and other accused persons. On appearance of the applicant, the trial court framed charges against him. The said charges were read to the applicant to which he pleaded not guilty and claimed to be tried. There was no challenge of the order taking cognizance on the charge sheet, summoning of the applicant by the trial court and also to the framing of charge against him but the only things stated by him after framing of charge was that he denies the charges and claims to be tried. The trial started in which the statement of PW-1 who is the first informant has been recorded. The statement of the other witness as PW-2 is being recorded. Now at this stage, the present petition has been filed for quashing of the proceedings.

14. The Apex Court in the case of Ratilal Bhanji Mithani Vs. State of Maharashtra and others : (1979) 2 SCC 179 has held that after framing of charge there cannot be a discharge but only an acquittal can be done on a finding of not guilty turning on the merits of the case. It has been held as follows :-

"24. At the outset, let us have a look at the relevant provisions of the Code of Criminal Procedure, 1898, which admittedly governed the pending proceedings in this case. The procedure for trial of warrant cases by Magistrates is given in Chapter XXI of that Code. The present case was instituted on a criminal complaint. Section 252 provides that in such a case, the Magistrate shall proceed to hear the complainant (if any) and take all such evidence, as may be produced, in support of the prosecution. Sub-section (2) of that Section casts a duty on the Magistrate to ascertain the names of persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and to summon all such persons for evidence. Section 253 indicates when and in what circumstances an accused may be discharged: It says:

"253. (1) If, upon taking all the evidence referred to in Section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."

Section 254 indicates when and in what circumstances a charge should be framed. It reads:

"254. If, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused."

Section 255 enjoins that the charge shall then be read over and explained to the accused, and he shall be asked whether he is guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record that plea, and may convict him thereon.

25. Section 256 provides that if the accused refuses to plead or does not plead, or claims to be tried, he shall be required to state at the next hearing whether he wishes to cross-examine any of the witnesses for the prosecution whose evidence has been taken, and if he says he so wants to cross-examine, the witnesses named by him shall be recalled and he will be allowed to further cross-examine them. "The evidence of any remaining witnesses for the prosecution shall next be taken" and thereafter the accused shall be called upon to enter upon and produce his defence.

26. Section 257 is not material. Section 258(1) provides that if in any case in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal. Sub-section (2) requires, where in any case under this chapter the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence on him in accordance with law.

27. From the scheme of the provisions noticed above it is clear that in a warrant case instituted otherwise than on a police report, "discharge" or "acquittal" of accused are distinct concepts applicable to different stages of the proceedings in Court. The legal effect and incidents of "discharge" and "acquittal" are also different. An order of discharge in a warrant case instituted on complaint, can be made only after the process has been issued and before the charge is framed. Section 253(1) shows that as a general rule there can be no order of discharge unless the evidence of all the prosecution witnesses has been taken and the Magistrate considers for reasons to be recorded, in the light of the evidence, that no case has been made out. Sub-section (2) which authorises the Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless, is an exception to that rule. A discharge without considering the evidence taken is illegal. If a prima facie case is made out the Magistrate must proceed under Section 254 and frame charge against the accused. Section 254 shows that a charge can be framed if after taking evidence or at any previous stage, the Magistrate, thinks that there is ground for presuming that the accused has committed an offence triable as a warrant case.

28. Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. After the framing of the charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Section 349 and 562 of the Code of 1898 (which correspond to Sections 325 and 360 of the Code of 1973).

29. Excepting where the prosecution must fail for want of a fundamental defect, such as want of sanction, an order of acquittal must be based upon a "finding of not guilty" turning on the merits of the case and the appreciation of evidence at the conclusion of the trial.

30. If after framing charges the Magistrate whimsically, without appraising the evidence and without permitting the prosecution to produce all its evidence, "discharges" the accused, such an acquittal, without trial, even if clothed as "discharge", will be illegal. This is precisely what has happened in the instant case. Here, the Magistrate, by his order dated December 12, 1962, framed charges against Mithani and two others. Subsequently, when on the disposal of the revision applications by Gokhale, J., the records were received back he arbitrarily deleted those charges and discharged the accused, without examining the "remaining witnesses" of the prosecution which he had in the order of framing charges, said, "will be examined after the charge"."

(emphasis supplied)

15. The situation is the same in the present matter. After taking cognizance on the chargesheet, framing of charges, accused not pleading guilty and claiming to be tried, the trial starting and one witness has been examined whereas the statement of the other prosecution witnesses is being recorded, the applicant who is facing trial comes up challenging the cognizance/summoning order dated 28.02.2022 as well as entire proceedings of the trial at such a belated stage.

16. It has been held by the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; State of Bihar Vs. P. P. Sharma : 1992 Supp (1) SCC 222; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Zandu Pharmaceuticals Works Ltd. Vs. Mohammd Shariful Haque : (2005) 1 SCC 122; M. N. Ojha Vs. Alok Kumar Srivastava : (2009) 9 SCC 682; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Md. Allauddin Khan Vs. State of Bihar : (2019) 6 SCC 107; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706; Rajeev Kourav Vs. Balasaheb & others : (2020) 3 SCC 317; Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh : (2020) 12 SCC 467, that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution.

17. Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows:

"23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

24. The question which is raised for consideration is that in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC. This has often been hotly debated before this Court and various High Courts. Though in a series of decisions, this question has been answered on several occasions by this Court, yet the same still comes up for consideration and is seriously debated.

25. In this backdrop, the scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in the judgment of this Court in State of Haryana and Others Vs. Bhajan Lal and Others, (1992 Suppl (1) SCC 335). The relevant para is mentioned hereunder:-

"102. 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 channelised 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 FIR 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 FIR do not constitute a cognizable offence but constitute only a non-cognizable 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.

(7) 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."

26. This Court has clarified the broad contours and parameters in laying down the guidelines which have to be kept in mind by the High Courts while exercising inherent powers under Section 482 CrPC. The aforesaid principles laid down by this Court are illustrative and not exhaustive. Nevertheless, it throws light on the circumstances and the situation which is to be kept in mind when the High Court exercises its inherent powers under Section 482 CrPC.

27. It has been further elucidated recently by this Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others, 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.

28. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception."

18. In the case of Ramveer Upadhyay Vs. State of U.P. : 2022 SCC Online SC 484 the Apex Court has held in paragraph nos. 27, 38 and 39 that quashing of a criminal case by exercising jurisdiction under Section 482 Cr.P.C. should be done in exceptional cases only. Paragraphs 27, 38 and 39 are quoted herein:

"27. Even though, the inherent power of the High Court under Section 482 of the Cr.P.C., to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the Cr.P.C is not to be exercised for the asking.

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38. Ends of justice would be better served if valuable time of the Court is spent on hearing appeals rather than entertaining petitions under Section 482 at an interlocutory stage which might ultimately result in miscarriage of justice as held in Hamida v. Rashid @ Rasheed and Others, (2008) 1 SCC 474.

39. In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Atrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Complaint Case No.19/2018 is not such a case which should be quashed at the inception itself without further Trial. The High Court rightly dismissed the application under Section 482 of the Cr.P.C."

19. Further in the case of Daxaben Vs. State of Gujarat : 2022 SCC Online SC 936 in para 49 the Apex Court has held as under:

"49. In exercise of power under section 482 of the Cr.P.C., 1973 the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence."

20. In so far as argument with regards to the offences under the Excise Act, taking cognizance and trying the applicant for it is concerned, although it is strenuously argued that the trial is bad in the eyes of eye and is void ab-initio but in the case of State of Maharashtra Vs. Sayyed Hassan Sayyed Subhan : (2019) 18 SCC 145 it has been held by the Apex Court that there is no bar to a trial or conviction of an accused under two different enactments. The only bar is to the punishment of him twice for the offence. It has been held as under :

"7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. [T.S. Baliah v. T.S. Rangachari, (1969) 3 SCR 65 : AIR 1969 SC 701] The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under IPC and at the same time, an offence under any other law. [State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655 : 1989 SCC (Cri) 27] The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows:

"26. Provision as to offences punishable under two or more enactments.--Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

8. In Hat Singh case [State of Rajasthan v. Hat Singh, (2003) 2 SCC 152 : 2003 SCC (Cri) 451] this Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. While considering a dispute about the prosecution of the respondent therein for offences under the Mines and Minerals (Development and Regulation) Act, 1957 and the Penal Code, this Court in State (NCT of Delhi) v. Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] held that there is no bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offences. A perusal of the provisions of the FSS Act would make it clear that there is no bar for prosecution under IPC merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point."

21. Further in the case of Kunwar Pal Singh Vs. State of Uttar Pradesh : (2020) 14 SCC 331 it has been held by the Apex Court that since the ingredients constituting offence(s) in both the enactments are different, prosecution under both the enactments is permissible. It has been held that all offences under any other law shall be investigated, inquired into, tried under Cr.P.C., subject to any enactment regulating the manner or place of investigation, trial, etc. of such offences. It is held as follows :-

"4. In the written submissions filed by the appellant, a relatively new plea and contention has been raised by relying upon the judgments of this Court in Belsund Sugar Co. Ltd. v. State of Bihar [Belsund Sugar Co. Ltd. v. State of Bihar, (1999) 9 SCC 620], Sharat Babu Digumarti v. State (NCT of Delhi) [Sharat Babu Digumarti v. State (NCT of Delhi), (2017) 2 SCC 18 : (2017) 1 SCC (Cri) 628] and Suresh Nanda v. CBI [Suresh Nanda v. CBI, (2008) 3 SCC 674 : (2008) 2 SCC (Cri) 121] to urge that the MMDR Act, 1957 being a special statute, prosecution for an offence under Section 379 IPC would not be maintainable. The judgment of this Court in State (NCT of Delhi) v. Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] , it is submitted, is distinguishable as FIR for the offence against illegal sand mining in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] was registered suo motu due to non-production of any document to establish mining rights and, therefore, the ratio in that case would apply only to cases of illegal mining where the mining lease had already been revoked or there was no subsisting mining lease.

5. We find the submission of the appellant to be untenable. In Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437], a Division Bench of this Court had decided the appeals preferred against the conflicting judgments of the Delhi High Court [Sanjay v. State, 2009 SCC OnLine Del 525 : (2009) 109 DRJ 594], Gujarat High Court [Vishalbhai Rameshbhai Khurana v. State of Gujarat, 2010 SCC OnLine Guj 13915 : (2010) 3 GCD 2160], Kerala High Court [Moosakoya v. State of Kerala, 2007 SCC OnLine Ker 584 : (2008) 1 KLT 538], Calcutta High Court [Seema Sarkar v. State, 1994 SCC OnLine Cal 277 : (1995) 1 Cal LT 95], Madras High Court [M. Palanisamy v. State of T.N., 2012 SCC OnLine Mad 2125 : (2012) 4 CTC 1], [Sengol v. State, 2012 SCC OnLine Mad 82 : (2012) 2 CTC 369] and Jharkhand High Court on the question whether a person can be prosecuted for the offences under Sections 379/114 and other provisions of IPC on the allegations of illegal mining in view of Section 22 of the MMDR Act, 1957, which reads as under:

"22. Cognizance of offences.--No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government."

6. After adverting to the provisions of CrPC, namely, Sections 2(c), 2(d) and 2(h) which define "cognizable offence", "complaint" and "investigation" respectively, this Court in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] had referred to Section 4 CrPC, which reads as under:

"4. Trial of offences under the Indian Penal Code and other laws.--(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

As per sub-section (2) of Section 4, all offences under any law, other than IPC, can be investigated, inquired into and tried under CrPC, subject to any enactment regulating the manner or place of investigation, trial, etc. of such offences.

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8. Accordingly, in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] it was held that the investigation of the offences is within the domain of the police and the power of a police officer to investigate into cognizable offences is not ordinarily impinged by any fetters albeit the power must be exercised as per the statutory provisions and for legitimate purposes. The courts would interfere only when while examining the case they find that the police officer in exercise of the investigatory powers has breached the statutory provisions and put the personal liberty and/or the property of a citizen in jeopardy by an illegal and improper use of the powers or when the investigation by the police is not found to be bona fide or when the investigation is tainted with animosity. While examining the issue, this Court in Sanjay [State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 : (2014) 5 SCC (Cri) 437] took notice of the decision in H.N. Rishbud v. State of Delhi [H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 : 1955 Cri LJ 526] wherein this Court has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to the taking of the cognizance or trial. The cardinal principle of law as noted by this Court in Directorate of Enforcement v. Deepak Mahajan [Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 : 1994 SCC (Cri) 785] is that every law is designed to further the ends of justice and should not be frustrated on mere technicalities. The public trust doctrine was cited and applied to underscore the principle that certain resources like air, sea, water, forests and minerals are of great importance to the people as a whole and that the Government is enjoined to hold such resources in trust for the benefit of the general public and to use them for their benefit than to serve private interests."

22. Regarding the second limb of argument that there is no evidence with regards to the offences under the IPC, it is apparent from the records that the trial court after prima facie finding a case to be made out against the applicant took cognizance upon the charge sheet, summoned him and then charges were also framed against him under sections 420, 120-B IPC and Section 60, 63, 72 of U.P. Excise Act. There are allegations against him that illegal liquor was being unloaded from the truck and being stocked in his godown. The trial has started in which one prosecution witnesse has been examined and the second witness is under examination. The applicant who is a named accused, charged accused is being tried but he has not tried to claim discharge before the trial court at the appropriate stage. Even the order framing charge has not been challenged by him yet.

23. Learned counsel for the applicant has while arguing the matter submitted that in view of the judgement of a Division Bench of this Court (Lucknow Bench) in the case of Shueb Mahmood Kidwai @ Bobby Vs. State of U.P. : Criminal Misc. 482/378/407 No. 3044 of 2017, decided on 23.02.2021 : [(2021) 0 Supreme (All) 122] has answered a reference made by a Single Judge Bench whether after taking cognizance on a charge sheet, framing of charge and 18 out of 19 witnesses being examined in the trial at this stage accused/applicant is entitled to move an application under Section 482 Cr.P.C. Learned counsel has placed the following paragraphs of the said judgement (though unnumbered in the original text) to support his argument, which read as under:

"This case has been placed before this Division Bench in view of a reference made by a learned Single Judge of this Court vide his order dated 12.12.2017 which reads as under:-

"Supplementary affidavit filed on behalf of the applicant is taken on record.

Heard counsel for the parties.

In continuation of Court's order dated 09.05.2017, it is hereby observed that applicant was required to show whether final report submitted by the police against the accused has been accepted by the Court or not. Vide annexure SA-2 there is prima-facie evidence that the final report submitted by the police has been accepted by the Court. Five cases shown to be registered against the present applicant. In four of them he has been acquitted and in one, final report submitted by the police, has been accepted.

Perusal of the order dated 14.06.2000 indicates that cognizance was taken in the year 2000, charge was framed on 27.08.2008 vide annexure 5 out of 19 witnesses 18 have been cross examined. The question is whether at this stage accused/applicant is entitled to move application under Section 482 Cr.P.C. During arguments, learned counsel for the applicant has referred annexure 7 to annexure 12 to show that similar applications under Section 482 Cr.P.C. moved on behalf of co-accused have been allowed by this Court. From annexure 7 to 10, the order have been passed on concession by learned AGA. However, orders annexure 11 and 12 have been passed even though on behalf of the State quashing of charge sheets was vehemently opposed. In both these cases, learned Single Judge has opined that when in all the 4 cases shown in the Gang Chart, the applicant has been acquitted, prosecution of the applicant under Gangster Act should not be continued. Thereafter he has quashed proceedings of Sessions Trial No.199 of 2000, under Section 2/3 UP Gangster Act going on against co-accused Ram Kumar Singh and Akhtar Husain alias Sarju."

24. With regards to the argument that the company has not been made as an accused and the proceedings be quashed on the ground itself it is the prosecution case that the godown belonged to the applicant from which the illegal liquor was recovered. It is the case of the applicant that the godown is of the company, the same is to be taken up in the trial at the appropriate stage to show as to who is the owner of the godown and whose material is being stocked therein. The proceedings on the said ground itself cannot be quashed.

25. The proposition of law with regards to maintainability of a petition under section 482 Cr.P.C. even at the stage of recording of evidence in trial is not in dispute at all but the decision of the same would be in the facts and circumstances of each and every case independently.

26. In view of the discussion as above, the law on the issue, the prima facie material available against the applicant and also the stage of the case, this Court does not find it to be a fit case for interference, the present application under Section 482 Cr.P.C. is thus dismissed.

Order Date :- 24.05.2023/ M. ARIF (Samit Gopal, J.)

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