Delhi District Court
Tejinder Singh Wadhwan vs State on 3 July, 2024
IN THE COURT OF SH. LOVLEEN
ADDL. SESSIONS JUDGE-03, SOUTH EAST
SAKET COURTS, NEW DELHI
Criminal Revision No. 144/2023
CNR No. DLSE01-002728-2023
Tejinder Singh Wadhwan
S/o Rajinder Singh
O/o 33, Defence Colony,
New Delhi -110024.
.... Revisionist
VERSUS
STATE
Through SHO,
Police Station, Defence Colony,
New Delhi-110024
.... Respondent
CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....1 of 12
Date of institution : 04.03.2023
Date of reserving the order : 14.05.2024
Date of pronouncement : 03.07.2024
JUDGMENT
1. This is a revision petition filed under section 397 Cr.PC, 1973 against the impugned order dated 13.09.2022 and order dated 19.11.2022 passed by Ld. Metropolitan Magistrate-09, South-East, whereby Ld. MM has charged the revisionist u/s 33 r/w Section 44 of Delhi Excise Act, 2009 in Criminal Case No. 690/2021 titled as State vs Tejinder Singh Wadhwan arising out of FIR No. 177/2019 PS Defence Colony and has ordered recording of evidence of prosecution witnesses. For the sake of convenience, the revisionist herein shall be referred to as "Accused" henceforth.
GROUNDS OF REVISION
2. The grounds cited by the revisionist against the impugned order are as under :
A). Because the Ld. Judge has passed the impugned CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....2 of 12 order without proper appreciation of the facts and law and without considering the submissions made by the Revisionist herein. That the Ld. Judge has erroneously, incorrectly framed charge against the Revisionist herein without appreciating the submissions of the Revisionist herein and has failed to consider Order dated 26.03.2021 passed by the Ld. Financial Commissioner, Delhi. B). Because the irregularity committed by the Ld. Judge is evident from the impugned orders passed by in Criminal Case No. 690 of 2021. It is submitted that the Ld. Judge ought to have considered that the charge under Section 33 of the Delhi Excise Act, 2009 could not sustain against the Revisionist and the Revisionist ought to have been discharged.
C). Because the Revisionist was not present during the commission of the said offence of sale of wine bottle to the decoy customer and the said fact is established and evident from the FIR, the charge sheet, the statements, inspection report dated 12.10.2019, seizure memo dated 12.10.2019 and from order dated 26.03.2021 passed by the Ld. Financial Commission, Delhi and order dated 17.01.2020 passed by the Ld. Commissioner (Excise), Delhi.
D). Because the Ld. Financial Commissioner by Order CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....3 of 12 dated 26.03.2021 has passed order in favour of the Revisionist which has attained finality and has exonerated the Revisionist from the same charged and has specifically adjudicated upon Section 33 and 44 of the Delhi Excise Act and held that "while it is true that it is the responsibility of the proprietor to ensure/verify the compliance with Act and Rules, the fact is than an employee can only take precautions and cannot always be held liable for the acts of commission by an employee, unless it is proved otherwise."
E). Because Section 33 of the Delhi Excise Act, 2009 states that "Penalty for unlawful import, export, transport, manufacture, possession, sale, etc. (1) Whoever, in contravention of provision of this Act or of any rule or order made or notification issued or of any licence, permit or pass, granted under this Act-
(a) manufactures, imports, exports, transports or removes any intoxicant;
(b) constructs or works any manufactory or warehouse;
(c) bottles any liquor for purposes of sale;
(d) uses, keeps or has in his possession any material, still, utensil, implement or apparatus, whatsoever, for the purpose of manufacturing any intoxicant other than toddy or tari;
CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....4 of 12
(e) possesses any material or film either with or without the Government logo or logo of any State or wrapper or any other thing in which liquor can be packed or any apparatus or implement or machine for the purpose of packing any liquor;
(f) sells any intoxicant, collects, possesses or buys any intoxicant beyond the prescribed quantity, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to one lath rupees."It is submitted that from a bare reading of Section 33 it is evident that the Revisionist cannot be held liable for any offence as stated in Section 33 of the Act because the said Section is not applicable upon the Revisionist as there is not even a single allegation against the Revisionist falling under any provision of Section 33 of the Act.
F). Because no justifiable reason has been provided by the Ld. Judge while dismissing the Application for discharge against the Revisionist and while framing charge against the Revisionist under Section 33 of the Act. It is submitted that no offence is made out against the Revisionist which is also evident from the impugned CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....5 of 12 orders which also fail to disclose the allegation against the Revisionist or the role attributable to the Revisionist towards commission of the alleged offence. G). Because the name of the Revisionist was not arrayed in the FIR as accused and with deliberate intention the name of the Revisionist is roped in as Accused No. 1 in the charge sheet despite the fact that even the charge sheet and the entire investigation is silent about fact that and failed to mention that the Revisionist is being charged for which act or omission under Section 33 of the Act.
H). Because the Revisionist was not present at the licensed premise at the time of commission of the alleged offence and the said categorical submission has been made by the Revisionist before all the Authorities and the same is evident from the Order passed by the Ld. Commissioner (Excise), Delhi and the Ld. Financial Commissioner, Delhi.
I). Because in view of Order dated 26.03.2021 passed by the Ld. Financial Commissioner, Delhi, the Ld. Judge in Criminal Case No. 690 of 2021 erroneously failed to consider that the Accused No. 2 has admitted that he executed the sale without the knowledge or authorization of the Revisionist and for his own gain.
CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....6 of 12 J). Because the Revisionist is 73 years old and has been running The Taste Departmental Store for decades and there has been no complaint against the Revisionist till date. It is submitted that even the FIR and the Charge Sheet nowhere impose any allegation against the Revisionist herein and the name of the Revisionist is being roped in only to harass the Revisionist despite the established fact that the Revisionist was not present at the time of the commission of the offence and had no knowledge of commission of the offence.
K). Because it is not justified to proceed with criminal action against the Revisionist who had no knowledge regarding the commission of offence and is being accountable for his employee who states to have committed the offence behind the Revisionist and for his own gain. It is submitted that it is not justified in the present case to hold the Revisionist accountable for the actions of his employee when all the precautions were being taken by the Revisionist and there is no complaint till date against the Revisionist.
L). Because the Hon'ble Supreme Court in Radheshyam Kejriwal versus State of West Bengal, (2011) 3 SCC 581 which was later affirmed in Ashoo Surendranath Tewari vs. The Deputy Superintendent of CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....7 of 12 Police, EOW, CBI and Anr, (2020) 9 SCC 636 held that:
"38. (vii) in case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases." It finally concluded: 39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."
M). Because the Hon'ble High Court of Delhi by Judgment dated 04.07.2022 in Writ Petition (Crl.) No. 1279 of 2021 Johnson Jacob versus State held that "20. However, I am of the view that when departmental proceedings and the criminal proceedings are a mirror image of each other and the accused has been exonerated on merits in the departmental inquiry, and not due to minor technicalities or irregularities, the criminal proceedings, on the same set of facts and circumstances, cannot be permitted to be continued as the standard of proof in departmental proceedings is much lower than the standard of proof in criminal proceedings. The same principle has been laid down by the Hon'ble Supreme Court in Ashoo Surendranath Tewari v. The Deputy Superintendent of Police CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....8 of 12 (supra)."
N). Because to charge the Revisionist for an offence the Respondent No. 1 is to establish the act and the mens- rea however in the present case it is evident from the entire investigation and the charge sheet that neither any wrongful act is attributable to the Revisionist nor the presence of mens-rea to commit an offence is established.
O). Because neither there was even a single independent public witness present at the time of inspection nor listed as witness in the Charge Sheet.
3. A prayer has been made to set aside the impugned orders dated 13.09.2022 and 19.11.2023.
4. The prayer has been opposed by the Ld. Addl. PP for State.
Discussion
5. This court has considered the records as well as the submissions made by the parties.
6. As per charge-sheet filed against the accused and one other person (an employee of the accused), on 12.10.2019, a decoy customer was sent by Excise Department, Delhi at the Departmental Store belonging to the accused. At the relevant CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....9 of 12 time, the said decoy customer was sold a bottle of wine by the employee of the accused after removing the bar code affixed onto the same. At that time, a previous order dated 27.09.2019 issued by the Excise Department, Delhi prohibiting the accused from selling any liquor from his store was in force / operation (against the accused).
7. Perusal of the impugned order dated 13.09.2022 passed by the Ld. MM reflects that he has ordered the framing of charge against the accused on the basis of the provision u/s 44 of Delhi Excise Act. Section 44, Delhi Excise Act clearly defines the liability of the holder of a license / permit to sell liquor in case an employee or agent of his violates the other provisions of Delhi Excise Act. However, such a 'holder' may escape liability in case he proves to the satisfaction of Ld. MM that he took due and reasonable precaution to prevent commission of an offence by his employee / agent. Given the facts of circumstances of this case, Ld. MM has correctly observed that the appropriate stage for the accused to prove his defence would be during trial (i.e. after the framing of charge). At the stage of consideration on charge, the accused could not be permitted to rely upon the statement of his employee (i.e. co- accused Bandhu Ram) to prove his defence, if any. Section 44 Delhi Excise Act shall continue to operate against the accused CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....10 of 12 till the time he proves that he took due precautions as are required by law. As such, this Court does not find any infirmity in the impugned orders.
8. The accused relies upon an order dated 25.03.2021, passed by Financial Commissioner, Delhi while disposing of the second appeal filed by the accused u/s 72 (3) Delhi Excise Act against the cancellation of his licence to sell liquor, for impugning the orders passed by Ld. MM. Vide the said order, the worthy Financial Commissioner, Delhi has set aside the order for 'cancellation' of the liquor license previously granted to the accused while observing as under:-
"7. It is also undisputed fact that during the inspection on 12.10.2010, one of the Excise Inspectors approached the employee of the appellant, Sh. Bandhu Ram, as a decoy customer and desired to purchase a cheese, a salami and a bottle of sula wine. sh. Bandhu Ram sold the same by issuing a manual bill of Rs. 1,240/- and after removing the barcode of the said bottle. The said wine bottle was found for sale in Delhi. In this regard, the appellant has contended that the entire case is merely a sale of a bottle of wine which was sold by Sh. Bandhu Ram without the knowledge and information of the appellant, therefore this act which is not even committed by the appellant, is in no manner attributable to the appellant. While it is true that it is the responsibility of the proprietor to ensure / verify the compliance with Act and rules, the fact is that an employer can only take precautions and cannot CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....11 of 12 always be held liable for the acts of commission by an employee, unless it is proved otherwise.
9. In the considered opinion of this Court, the highlighted portion of the observations made by worthy Financial Commissioner, Delhi are not in line with the statutory provisions made u/s 44 of Delhi Excise Act. The relevant provision u/s 44 Delhi Excise Act has created a legal fiction, which could not be ignored lightly. Even otherwise, the said observations are not binding upon the Ld. MM. As such, the accused could not agitate his case for discharge on the basis of said order passed by the worthy Financial Commissioner, Delhi.
10. No other infirmity is noticeable in the impugned orders passed by the Ld. MM. Neither the orders seem to be arbitrary, perverse or irrational nor does they reflect any jurisdictional error which occasioned any injustice in the matter. The present petition is devoid of any merits and is hereby dismissed.
11. TCR be sent back along with the copy of this judgment. Revision file be consigned to Record Room as per rules. Digitally signed by LOVLEEN LOVLEEN Date:
2024.07.03 16:42:59 +0530 Dictated and Announced (Lovleen) in the open court ASJ-03 (South-East), on 03.07.2024 Saket Courts, Delhi CR no. 144/23 Tejinder Singh Wadhwan Vs. State & Ors Page no....12 of 12