Madhya Pradesh High Court
Pramod Thakur vs The State Of Madhya Pradesh on 16 September, 2025
1 MCRC-37263-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
MCRC No. 37263 of 2025
(PRAMOD THAKUR Vs THE STATE OF MADHYA PRADESH )
Dated : 16-09-2025
Shri Pramod Singh Tomar - Advocate for the applicant.
Shri C.M. Tiwari - Government Advocate for the respondent/State.
This is the first bail application filed by the applicant under Section 483 of B.N.S.S. for grant of regular bail relating to Crime No.629/2025 registered at Police Station - Chourai, Distt. Chhindwara (M.P.) for the offence punishable under Section 34(2) of M.P. Excise Act. Applicant is in detention since 23.07.2025.
2. As per the prosecution story, on receiving information from the informant Police made a search and recovered 279 bulk liter country made liquor from possession of present applicant. Therefore, the offence has been registered against the present applicant under the aforesaid section.
3. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in this case. He is in custody since 23.07.2025. It is submitted that offence under Section 34(2) of M.P. Excise Act is not made out. It is also submitted that as per Section 34(2) of M.P. Excise Act, two conditions are mandatory (i) accused must have been convicted for an offence under clause (a) or (b) of sub-section (1) of Section 34 and (ii) from applicant more than 50 bulk liter illicit liquor has been seized. Unless these two conditions are fulfilled, offence under Section 34(2) of M.P. Excise Act will not made out. There is no criminal antecedents of Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43 2 MCRC-37263-2025 applicant. In support of his submission, learned counsel has placed reliance on the decision of Coordinate Bench of this Court in Pavan Gour vs. State of M.P. passed on 23.06.2023 in MCRC. No.23717/2023 in which learned Coordinate Bench has held that for offence making out under Section 34(2) of M.P. Excise Act prior conviction under Section 34(1)(a)(b) and thereafter in subsequent offence, seizure of liquor exceeding 50 bulk liter is necessary. The relevant portion of said decision as reproduced as under:-
"4. Heard learned counsel for the parties.
5. Section 34(1)(a)(b) and Section 34 (2) of the MP Excise Act, 1915 are quoted as under:-
"34 Penalty for unlawful manufacture, transport, possession, sale etc.
-- (i) Whoever, in contravention of any provisions of this Act, or of any rule, notification or order made or issued thereunder, or of any condition of a licence, permit or pass granted under this Act,--
(a) manufactures, transports, imports, exports. collects or possesses any intoxicant;
(b) save in the cases provided for in Section 38, sell any intoxicant ."
"Section 34(2) Notwithstanding anything contained in sub -section (1), if a person is convicted for an offence covered by clause (a) or clause (b) of sub -section (1) and the quantity of the intoxicant being liquor found at the time or in the course of detection of the offence exceeds fifty bulk litre, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees:
Provided that when any person is convicted under this section for an offence for second or subsequent time, he shall be punishable for every such offence with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than fifty thousand rupees but may extend to two lac rupees."
6. Word used in Section 34(2) of the Act is 'and' and not 'or' on basis of which counsel appearing for applicant has argued that there has to be both ingredients of Section 34(2) i.e. quantity of liquor exceeding fifty bulk litres and accused is convicted of an offence covered under Clauses-(a) and (b) of Section 34(1) only then offence under Section 34(2) will be made out.
7. Justice G.P. Singh in Principles of Statutory Interpretation has mentioned that word 'or' is disjunctive and word 'and' is normally Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43 3 MCRC-37263-2025 conjunctive but at times they are read vice versa to give effect to manifest intention of the Legislature as disclosed from the context. Now it is to be looked into Section to find out the intent of the Legislature whether word 'and' used in Section 34(2) of MP Excise Act, 1915 is to be read as 'or' or word 'and' it is to be read as 'and' in its normal sense of conjunctive.
8. On reading of Section 34(1) of the MP Excise Act, it is found that quantity of liquor in respect of which there is violation is not prescribed in said Section, therefore, any amount of liquor which is manufactured, transported, imported, collected, possessed without any license will be covered under Section 34 even liquor more than fifty bulk litre will also be covered under Section 34 of the Act of 1915.
9. On reading of Section 34(2), it is found that offence covered in this Section provides with more harsh penalty which shows that offence covered under Section 34(2) is more serious in nature. Illicit possession, manufacturing or sale of fifty bulk liter is covered under Section 34(2) of the MP Excise Act, 1915 with addition that offender must have been convicted under Section 34(1)(a)(b) also. No quantity of liquor is prescribed in Section 34(1), therefore, possessing more than fifty bulk liter will also be covered under Section 34(1)(a). Only distinguishing feature between under Section 34(1)(a) and Section 34(2) is that there is also requirement of earlier conviction under Section 34(1)(a) of MP Excise Act, therefore word 'and' used in Section 34(2) cannot be read as 'or' and requirement of Section 34(2) is fulfilling both the requirements as laid down in said Sections.
10. In these circumstances, Legislature cannot have intention that word 'and' used in Section 34(2) is to be read as 'or'. Word 'and' in Section 34(2) is to be read in its normal sense of conjunctive. In view of same, requirement for making out case under Section 34(2) is conviction under Section 34(1)(a)(b) and subsequent offence is in relation to liquor exceeding fifty bulk liter.
11. In view of aforesaid, no offence under Section 34(2) is made out against the applicant as applicant had not been convicted for offence under Section 34(1)(a)(b). Resultantly, bail application filed by applicant is allowed."
4. On the other hand, learned State counsel submits that offence under Section 34(2) of M.P. Excise Act is made out. It is submitted that object of the legislature in enacting Section 34(2) is to curb large-scale illicit trade in liquor where the quantity seized exceeds fifty bulk liters. The proviso of Section 34(2) itself prescribes enhanced punishment solely on this ground, Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43 4 MCRC-37263-2025 without any stipulation of prior conviction.
5. Heard learned counsel for the parties and perused the record.
6. Section 34(1)(a)(b) and Section 34 (2) of the MP Excise Act, 1915 are quoted as under:-
"34 Penalty for unlawful manufacture, transport, possession, sale etc.-- (i) Whoever, in contravention of any provisions of this Act, or of any rule, notification or order made or issued thereunder, or of any condition of a licence, permit or pass granted under this Act,--
(a) manufactures, transports, imports, exports. collects or possesses any intoxicant;
(b) save in the cases provided for in Section 38, sell any intoxicant."
shall subject to the provisions of sub-section (2) , be punishable for every such offence with imprisonment for a term which may extend to 1 years & fine which shall not be less then 500/- but which may extend to Rs.5,000/-.
Provided that when any person is convicted under this Section of any offence for a second or subsequent time he shall be punishable for every such offence with imprisonment for a term which shall not be less than 2 months but which may extend to 24 months and with fine which shall not be less than 2,000/- Rs. but which may extend to 10,000/- Rs.
"Section 34(2) Notwithstanding anything contained in sub -Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43
5 MCRC-37263-2025 section (1)-
if a person is convicted for an offence covered by clause (a) or clause (b) of sub -section (1) and the quantity of the intoxicant being liquor found at the time or in the course of detection of the offence exceeds fifty bulk litre, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees:
Provided that when any person is convicted under this section for an offence for second or subsequent time, he shall be punishable for every such offence with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than fifty thousand rupees but may extend to two lac rupees."
" 59-A. Certain offence under the Act to be non-bailable Notwithstanding anything contained in the Code of Criminal Procedure, 1973 ( No.2 of 1974) or Section 59 of the Act,
(i) No application for any anticipatory bail shall be entertained by any Court in respect of a person accused of an offence punishable under Section 49-A or in respect of a person not being a person holding a licence under the Act or rules made thereunder who is accused of an offence covered by clause (a) or Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43 6 MCRC-37263-2025 clause (b) of sub-section (1) of Section 34 with quantity of liquor found at the time or in the course of detection of such offence exceeding fifty bulk liters.
(ii) A person, accused of an offence punishable under Section 49-A or a person not being a person holding a licence under the Act or rules made thereunder who is accused of an offence covered by clause (a) or clause (b) of sub-section (1) of Section 34 with quantity of liquor found at the time or in the course of detection of such offence exceeding fifty bulk liters shall not be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and in case such an application is opposed by the Public Prosecutor, unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is no tlikely to commit any offence while on bail :
Provided that no Court shall order for detention of such person in custody during the course of investigation for total period exceeding 60 days where it relates to an offence covered by clause (a) or clause (b) of sub-section (1) of Section 34 with quantity of liquor found at the time or in the course of detection of the offenced under Section 49-A and on the expiry of such of 60 days or 120 days, as the case may be, and in the event of the report of complaint not being filed the accused shall be released on Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43
7 MCRC-37263-2025 furnishing bail.
(iii) The limitations for grant of bail specified in clause (ii) are in addition to limitations prescribed under the Code of Criminal Procecdure, 1973 ( No.2 of 1974) or any other law for the time being in force regarding grant of bail."
7. It is pertinent to go through the statement of objects and reasons of the Amendment Act, 2000 to disclose the intention of the legislature behind enacting the Amendment Act. In clause 3 of the proposed Bill, it was mentioned that-"It has been noticed that the quantum of punishment for offences u/s 34 is inadequate, therefore, deterrent punishments have been proposed. It has also been proposed to cancel the licence of a person who is engaged in unlawful activities." It is therefore clear that section 34(2) and 59- A are enacted to address the issue of inadequacy of quantum of punishment and to provide deterrent punishment on basis of quantity of liquor as provided u/s 34(2) of the Act.
8. On reading of Section 34(1) of the MP Excise Act, it is found that quantity of liquor is not prescribed in said Section, therefore, any amount of liquor which is manufactured. transported, imported, collected, possessed without any license will be covered under Section 34 (1) clause (a) to (h) of the Act.
9. Whereas, on reading of Section 34(2), it is found that offence covered in this Section provides with more harsh penalty, if a person commits offence under Section 34(1) clause (a) and (b) and where the quantity of liquor found at the time or in the course of detection of the Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43 8 MCRC-37263-2025 offence exceeds 50 bulk litre.
10. Technically, Section 34(2) is not a different offence from section 34(1) of the Act, as it provides enhanced punishment for the same offence under Section 34(1) clause (a) and (b), where quantity of liquor exceeds 50 bulk litre. The similar opinion has been given by the Division Bench of this Court in Naresh Kumar Lahria vs. State of M.P. 2004 (4) MPHT 205 . Relevant portion of said decision is reproduced below:-
"22. Submission of Mr. Chaturvedi is that there is no reason to ostracise the applicability of Section 438 of the Code by operation of law. The main crux of the argument is that the liberty of a person is affected and there is no guidance in the provision. We shall first take up the issue of lack of guidance. On a perusal of the provisions, it is clear as noon day that the said provision deals with a different spectrum altogether. It deals with the accused who has committed the offence under Section 49-A of the Act or Section 34 (a) or 34 (b) of the Act. Each of the provision in our considered opinion has the guidance. Sections 34 (a) and 34 (b) clearly postulate that a person who trades in liquor without licence and found in possession of more than 50 bulk of litres is covered in the net of Section 59. We have referred to the number of decisions to show no one can trade in liquor without licence but the Legislature has not provided that anyone in possession of liquor would not be entitled to the benefit of the provision of Section 438 of the Code, but the rider is there as the quantity has been provided. Nobody is expected to carry 50 bulks of liquor for personal consumption. It can not be thought that a person who carries liquor for personal use would carry 50 bulks of litre of liquor. Thus the quantity makes a distinction. Section 49-A deals with different situation altogether. It is concerned with spurious liquor. Any one who deals with spurious liquor in fact deals with poison meant for collective. Both the provisions in our considered view constitute a separate and special class of offence. The liquor tragedy which bring a chill in the spine of the collective can not be ignored. The death of poor people due to this poison can not be totally brushed aside, An individual may claim liberty on the backdrop of the fundamental right, but no one has the right to trade in this manner Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43 9 MCRC-37263-2025 to affect the interest of the collective. The major chunk of population of the State of M.P. consist of rural tribal and illiterate people. Number of crimes arc committed because of consumption of liquor. The crimes also take place due to quarrel and fight over illicit liquor. Some people try to accumulate money in trading illicit liquor as they do not intend to pay the consideration money as required under the Act. The State exchequer is affected. Quite apart from the above the spurious liquor becomes an apparent poisonous substance. The agony of the situation has been vividly described by Hansaria, C.J. (as His Lordship then was) in the case of Jan Ranjan Das (supra). The background of trade, social milieu, the conduct of the people, the loss of revenue, the attitude of these traders can never be ignored or marginalized. In this context we may refer with profit to the decision rendered in the case of Kartar Singh v. State of Punjab, (1994) 2 JT SC 423, wherein the Apex Court was dealing with the applicability of the Section 438 of the Code in respect of Terrorist Activities and Disruptive (Prevention) Act, 1987 and in the said case Their Lordships came to hold that Article 21 of the Constitution was not applicable to the offences under the said Act. In the case of Ram Krishna (supra) while dislodging the decision of this Court the Apex Court held that Section 18 of the SC & ST (Prevention of Atrocities) Act, 1989, wherein Section 18 debars the applicability of Section 438 of the Code the Apex Court held that looking to the historical background relating to the untouchability which lead to the commission of such offences against the SC and ST there is justification of apprehension that if the benefit of anticipatory bail is made available to the person who has allegedly committed the offence there is possibility of terrorising of the victim and affect the system. Keeping in view the totality of scenario, Their Lordships held that Section 18 of the aforesaid statute is not violative of Article 21 of the Constitution."
11. From the aforesaid judgment of learned Coordinate Bench in Pavan Gaur (supra), it is revealed that if an accused is arrested by the Police with a liquor exceeding 50 bulk liters without previous record of conviction under Section 34 (1) (a) or (b) of M.P. Excise Act then such offence shall be punishable u/s 34 (1) in place of Section 34 (2) of M.P. Excise Act.
Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:4310 MCRC-37263-2025 So far as the bail aspect is concerned, as per the order passed in Pawan Gaur (supra) if there is no previous conviction on the said offences than it can be assumed with reference to Section 59-A(ii) of M.P. Excise Act that accused is not guilty of offence.
With utmost respect of aforesaid view of Coordinate Bench and in the considered opinion of this Court, this view is appearing contrary to the provisions of statutory law as there is no requirement u/s 59A(ii) of M.P. Excise Act that accused must be previously convicted under the said offences. The only requirement for this provision is regarding the quantity of liquor must be exceeding 50 bulk liter.
Interpretation of Section 34(2) of M.P. Excise Act regarding previous conviction does not seems to be convincing as -
1. The Coordinate Bench of this Court in the case of Pawan Gaur (supra) did not consider the complete provision of Section 34(1) particularly following condition which reflects that the provision of Section 34(2) does not constitute independent or separate offence. However following language of the provision indicates that the provision of Section 34(2) is supplementary or extended form of Section 34(1) of M.P. Excise Act. In other words it can be considered aggravated form of Offence on the ground of quantity of liquor.
"shall subject to the provisions of sub-section (2), be Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43 11 MCRC-37263-2025 punishable for every such offence with imprisonment for a term which may extend to one year and fine which shall not be less than five hundred rupees but which may extend to five thousand rupees"
2. The Coordinate Bench in the aforesaid decision did not consider that the provision of Section 34(2) of M.P. Excise Act is starting in the following manner -"....... If a person is convicted for an offence .........."
Legislature has not used the word 'was' in place of 'is' for making previous conviction as an essential element for constituting the said offence.
3. The Coordinate Bench also did not consider in aforesaid decision that the provision of Section 34(2) of M.P. Excise Act is also having its special proviso for the punishment of subsequent conviction in place of Section 45 of M.P. Excise Act.
4. The entail line of the proviso of Section 34(1) and 34(2) may also be relevant for understanding and consideration the real intent of the legislation which is as under:
"Provided that when any person is convicted under this section for an offence for second or subsequent time"
12. Having considered the submissions, I am respectfully not agreed with legal proposition profound in the in the aforesaid judgment in Pawan Gaur (supra), therefore an important question of law arises as to the true interpretation of Section 34(1), 34(2) and 59-A of M.P. Excise Act. In such Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43 12 MCRC-37263-2025 circumstances, the matter requires consideration by Division Bench/Larger Bench for an authoritative pronouncement on the following substantial question of law:
" Whether for constituting an offence under Section 34(2) of the M.P. Excise Act, a prior conviction under Section 34(1)(a) or (b) is an essential requirement in addition to recovery of more than fifty bulk litres of illicit liquor, or whether possession of such seizure alone is sufficient to attract the provision?
13. As the applicant has no criminal antecedents and this matter is referring to Division Bench/Larger Bench, in the meantime this Court deems it appropriate to release the applicant/accused on interim bail till disposal of this petition.
14. It is directed that the applicant be released on temporarily bail till disposal of this petition on his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of the Trial Court.
15. Registry is directed to place the matter before Hon'ble the Chief Justice on administrative side with a request to constitute the Division Bench/Larger Bench over the reference made above.
16. Fate of this case shall be decided after the reference is answered.
(PRAMOD KUMAR AGRAWAL) JUDGE mohsin Signature Not Verified Signed by: MOHD MOHSIN QURESHI Signing time: 16-09-2025 18:42:43