Delhi District Court
Unknown vs The State Of Nct Of Delhi on 4 February, 2020
IN THE COURT OF SH. GULSHAN KUMAR,
ADDITIONAL SESSION JUDGE 03
SOUTH EAST DISTRICT, SAKET COURTS
NEW DELHI
IN THE MATTER OF Digitally
signed by
GULSHAN
CNR NO. DLSE010076332018 GULSHAN KUMAR
CR No. 684 OF 2018 KUMAR Date:
2020.03.11
Brinder Pal Singh, 16:17:20
+0530
S/o Late Sh. Partap Singh,
R/o E-38, Kalandi Colony,
Maharani Bagh, New Delhi. .......... Revisionist
Versus
The State of NCT of Delhi .......... Respondent
DATE OF INSTITUTION : 15.09.2018 DATE OF RESERVING ORDER : 25.11.2019 DATE OF PRONOUNCEMENT : 04.02.2020
1. Vide this Order I shall dispose of a criminal revision petition filed by the revisionist under Section 397 and 399 of the Code of Criminal Procedure against the order dated 18.07.2018 passed by Ld. Metropolitan Magistrate whereby it was ordered to frame charge against the revisionist for the offence punishable under Section 61 of Punjab Excise Act, 1941 (hereinafter referred to as impugned order).
CR No. 684/2018 Brinder Pal Singh Vs. The State of NCT of Delhi Page 1 of 102. The brief facts as per the case of revisionist are that the complainant in his complaint stated that on 26.05.2006, as per the direction of Collector (Excise) at about 5:20PM, he along with HC Harsh Wardhan, HC Subhash Chand and Ct. Vijayan of EIB were present at Anandmai Marg, opposite Chandiwala Estate, Kalkaji and were checking the vehicles coming from liquor godowns and TATA 407 bearing no. DL1LA6738 was seen coming which was driven by Raju. The vehicle was having 300 boxes of Kingfisher beer vide transport permit no. 200605049273 dated 23.05.2006, valid upto 26.05.2006. This transport permit was issued for 300 cases of beer after payment of excise duty with batch numbers mentioned on it. As per the transport permit, the batch numbers should have been only "J1" and "M3". On checking, the 300 cases it was found 108 cases of beer of "J1" and "M3", 192 cases of batch number "F2" and "A4" were also found. The total number of cases, however, was 300 on which due excise duty was paid. The information was given to Collector (Excise), when Excise Inspector M. P. Bajaj and Madan Lal came at the spot and prepared detailed report. It was stated that driver Raju in collusion with Brinder Pal Singh, Attorney of the Company kept in his possession 192 boxes of liquor illegally, without a valid transport permit. On the basis of this information, FIR No. 529/06 was registered and investigation CR No. 684/2018 Brinder Pal Singh Vs. The State of NCT of Delhi Page 2 of 10 was carried out. Further, during the investigation accused were arrested, statements of relevant witnesses were recorded, explanation from Excise Department (DEO permits) was obtained as per which, no gain to the accused or loss to exchequer was found to have been caused. It was found that it was only a violation of conditions of the licence as per which, a transport permit holder could allegedly transport two batch numbers at a time. After completion of investigation, chargesheet was filed against the revisionist and Raju. The revisionist had filed written submissions for discharge along with relevant documents collected by the police during investigation from Excise Department. Thereafter, Ld. Trial Court heard arguments on charge and after hearing arguments on charge, on 18.07.2018 Ld. Trial Court ordered to frame charge against the revisionist for offence under Section 61 of the Punjab Excise Act, 1914. Revisionist has filed a criminal revision petition against the said order and prayed that the said order be set aside.
3. Ld. Additional PP for State submits that the order of Ld. MM does not suffer from any infirmity or illegality.
4. Ld. Counsel for the revisionist argued on the lines of his revision petition and grounds thereof.
CR No. 684/2018 Brinder Pal Singh Vs. The State of NCT of Delhi Page 3 of 105. I have heard and considered the submissions of both the parties.
6. Before proceeding further, I deemed it fit to reproduce Section 61 of the Punjab Excise Act, 1914 as under-
Section 61. Penalty for unlawful import, export, transport, manufacturing, possession etc.-
(1) Whosoever, in contravention of any section of this Act or of any rule, notification issued or given thereunder or order made, or of any license, permit or pass granted under this Act-
(a) imports, exports, transports, manufacturer, collects or possesses any intoxicant;
(b) constructs or works any distillery or brewery; or
(c) uses, keeps, or has in his possession any material, still utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than tari; shall be punishable for every such offence with imprisonment for a term which may extend to three years and with fine upto two thousand rupees and if found in possession of a working still for the manufacture of any intoxicant shall be punishable with the minimum sentence of six months imprisonment and fine of two hundred rupees.
(2) Penalty for unlawful import, export, transport, CR No. 684/2018 Brinder Pal Singh Vs. The State of NCT of Delhi Page 4 of 10 manufacture, possession, sale etc.:
Whosoever, in contravention of any section other than sections 29 and 30 of this Act or of any rule, notification issued or given thereunder or order made, or of any license, permit or pass granted under this Act-
(a) sells any intoxicant; or
(b) cultivates the hemp plant; or
(c) removes any intoxicant from any distillery, brewery or warehouse established or licensed under this Act; or
(d) bottles any liquor for the purpose of sale; or
(e) taps or draws tari from any tariproducing tree, shall be punishable with imprisonment for a term which may extend to two years and fine which may extend to two thousand rupees.
It should be noted, moreover, that the infliction of a penalty under this Chapter does not debar the Collector from cancelling a license under Section 36 or Section 37.
Section 61(1)(b) refers to distilleries and breweries as the terms are generally understood, large works not as a rule capable of concealment. A case might arise of illicit distillation being carried on, on so large a scale as to come under this subclause but no such case has so far arisen, and the subclause should not be applied to the ordinary illicit still found in the Union Territory of Delhi, which is covered by section CR No. 684/2018 Brinder Pal Singh Vs. The State of NCT of Delhi Page 5 of 10 61(1)(a) Doubt often arise as to whether punishment should be asked for under both sections 61(1)(a) and 61(1)(c).
Such cases arise-
(1) when a still at work is seized with a quantity of lahan and of the resultant spirit;
(2) when illicitly distilled spirit and lahan are seized without apparatus;
(3) when apparatus and lahan are seized;
(4) when illicitly distilled spirit and apparatus not at work are seized.
In such cases there is a certain degree of overlapping, as
(a) covers manufacture and (c) covers use of a still for manufacture.
When the offence is manufacture by a still or otherwise comes within the more definite terms of clause (c), that clause (c) should be used in preference to the more general clause (a). In practice indeed, it will not often be possible to convict and punish under both subclauses as section 71, Indian Penal Code, will come into operation. Where the possession of the illicitly distilled spirit or of the lahan is really only one part of the process of manufacture, the offender can be sentenced only to three years, whether he is convicted under (a) or clause (c).
It is not easy to lay down general rules; but if a reference CR No. 684/2018 Brinder Pal Singh Vs. The State of NCT of Delhi Page 6 of 10 is made in each case to section 71 of the Indian Penal Code and section 35 of the Criminal Procedure Code, and care is taken to distinguish between distinct offences and separate offences, i.e., the separable elements in themselves offences of one combined offence no difficulty should be arise.
7. It was observed by Ld. Trial Court that it was held by the Hon'ble High Court of Delhi in "State Vs. Jaswant Singh, 2013 SCC (b)(i) onLine Del 4049" that as per the provisions of Section 71 r/w Section 75 of the Punjab Excise Act, 1914 a police officer has to be treated as an Excise Officer for an excise offence and the report submitted by him to the Magistrate under Section 173 Cr.P.C. is valid complaint on which, the Magistrate would be competent to take cognizance. A police officer posted in the Excise Intelligence Bureau ceases to be a police officer as he does not wear his uniform and cannot hold official arm. No unauthorized liquor was found in the possession/transported by the revisionist, no case could be made out. There was no loss of Excise Duty as duty on 300 cases of beer was duly paid and cases covered by batches number A4 and F2 were not in excess of 300 cases on which excise duty was paid. The lodging of FIR was unlawful as excise duty on all the 300 cases of beer found in the truck was paid and there was no evasion of excise duty. 192 cases bearing batches CR No. 684/2018 Brinder Pal Singh Vs. The State of NCT of Delhi Page 7 of 10 number A4 and F2 were also not in excess of 300 cases mentioned in transport permit. The cases of beer covered by these batches were part of stock of beer imported and entered in the registers maintained under the Act and the Rules framed there under. Rule 24 and 28 of the Bonded Warehouse Rules, 1975 stipulates that IMFL would not be removed from the warehouse until it has been checked by the officer in charge and all process for storage and issue of IMFL shall be conducted within the premises under the direct supervision of Officer Incharge of Bonded Warehouse. Transport Permit (TP) for 300 cases was issued after payment of excise duty on all the 300 cases. 108 cases of J1 and M3 batches and 192 cases of F2 and A4 batches loaded in the truck, under the supervision of Excise Inspector were part of the inventory of the godown and were not unauthorized. Rule 24 and 28 of the Bonded Warehouse Rules are reproduced as under-
Rule 24: No Indian made foreign liquor shall be removed from the warehouse, until it has been checked by the officerincharge and a transport or export pass in form FLW8 as the case may be has been granted. Such passes shall only be issued on the proof of execution of bond by the licensee/or on production of treasury receipt to the effect that the required amount of duty has been paid into the Government treasury.
Rule 28: All processes for the storage and issue of Indian CR No. 684/2018 Brinder Pal Singh Vs. The State of NCT of Delhi Page 8 of 10 made foreign liquor shall be conducted within the warehouse premises, under the direct supervision of the officerincharge.
8. In the present case, accused no. 1 i.e. Raju was the driver of vehicle assigned for carrying the stock of beer under authority of valid and legal documentation for transportation of liquor from Bonded Warehouse of United Breweries Ltd., (UBL). Revisionist is the Attorney of United Breweries Ltd., holder of L1 License granted by the Collector of Excise, Delhi for storage/sale of Indian made foreign liquor in NCT of Delhi. The vehicle carrying the consignment of 300 cases of the retail vend of M/s Swar Sangam was intercepted by the staff of Excise Intelligence Bureau for verification of the authenticity of the sale documentation, tally of brand and stock in vehicle with documents and supporting Excise Transport Permit issued by Excise Department after collection of excise duty. 300 cases of Kingfisher Premium large beer were released from the bonded warehouse of UBL under the supervision and control of Excise Inspector and Excise Constable. The quantity of 300 cases dispatched to Swar Sangam Wine Shop out of stock stored and accounted for in the records of the Excise Department in the Bonded Warehouse of UBL which were found in the vehicle at the time of checking. The duties were paid to the Excise Department only on the basis of the quantum of stock CR No. 684/2018 Brinder Pal Singh Vs. The State of NCT of Delhi Page 9 of 10 proposed to be released from the Bonded Warehouse for sales to the respective licensees. There is no relationship of payment of any Duty whatsoever with the batch number of the product. Reconciliation of inward and outward movement of stock is maintained in the Excise Records of the B.W.H. in units only and not by batch numbers. Further, the liquor dispatched from bonded warehouse of UBL was under the supervision and control of Excise Inspector and Excise Constable. Liquor was not dispatched from the warehouse without checking and supervision of Excise Inspector and therefore, revisionist had not committed any offence punishable under Section 61 of Punjab Excise Act, 1914.
9. Keeping in view the above discussion, revisionist Brinder Pal Singh stands discharged for the offences under Section 61 of Punjab Excise Act, 1914. Accordingly, the criminal revision petition stands allowed.
Criminal Revision Petition Record be consigned to record room.
Trial Court Record, if any, be sent back to court concerned along with copy of order.
ANNOUNCED IN THE OPEN COURT (GULSHAN KUMAR)
ON 04.02.2020 ASJ03, S.E., SAKET COURTS
NEW DELHI
CR No. 684/2018 Brinder Pal Singh Vs. The State of NCT of Delhi Page 10 of 10