Madhya Pradesh High Court
Nand Kishore Sharma vs The State Of Madhya Pradesh on 25 October, 2018
1
THE HIGH COURT OF MADHYA PRADESH
Single Bench: Hon'ble Shri Justice S.K. Awasthi
M.Cr.C. No.39996/2018
Nand Kishore Sharma
vs.
State of M.P. and others
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Shri Jagdish Baheti, learned counsel for the applicant
Shri Vishal Sanodiya, leanred Public Prosecutor for the
respondent/State.
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ORDER
(Passed on 25 /10/2018) The applicant has preferred this petition under Section 482 of Cr.P.C. for quashment of FIR bearing crime No.202/2018 dated 23.07.2018 registered at Police Station - Ravati, District Ratlam under Section 34 (2) and 42 of M.P. Excise Act as well as for quashing of charge-sheet and further proceedings.
(2) Brief facts of the case are that on the basis of source information police intercepted the vehicle bearing Registration No. MP-45-D-0344 at nine square Ravati. After seeing the police, one person sitting on the vehicle was fled away, however the driver of the vehicle was caught hold by the police and on interrogation he disclosed his name Surendra Kumar. On search 25 boxes of power Brand Beer and Two boxes of Legend Brand English Liquor (Total 100 bottles of 180 ml each) was found in the vehicle. On asking about the license driver Surendra Kumar failed to submit any permit / license, therefore, the said liquor and vehicle was seized. Surendra 2 Kumar informed the name of fled away as Deepak Shivhare and he further disclosed that seized liquor belongs to the Excise Contractor (present applicant) of Ravati foreign liquor shop. Accordingly case under Section 34 (2) of Excise Act was registered at crime No.202/2018 against the other co- accused persons Surendra Singh and Deepak Shivhare. During the investigation police also comes to the conclusion that the vehicle bearing registration No. MP-45-D-0344 belongs to the applicant, therefore, offence under Section 42 of Excise Act was also added. After completion of the investigation charge sheet was filed.
(3) Learned Counsel for the applicant has submitted that applicant is in the business of Liquor Trade for which he holds a valid license issued by the State Government through Collector Ratlam for Rawati Group of Excise including foreign liquor shop at Rawati which is for the period of 01.04.2018 to 31.03.2019. Therefore, the applicant being a liquor licensee is governed by the amended section 61 of M.P. Excise Act which provides that no Court shall take cognizance of an offence punishable under Section 34 and 42 of the Act for the contravention of any condition of a licence permit or pass, except on a complaint or report of the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorized by the Collector in this behalf. In the present case no authorization has been given by the Collector to any Excise or police Officer so as to investigate the matter against the applicant. It is further submitted that at the time of seizure of the said liquor i.e. on 23.07.2018, the applicant was neither present on the vehicle nor he was in the Village Ravati. He has been implicated in the present crime only on the basis of disclosure statement of co-accused Surendra Kumar, which is not admissible under the law. Therefore, no case is made out against the applicant, hence he prayed for quashment of FIR as well as charge sheet and other consequential proceedings.
3(4) On the other hand, learned Public Prosecutor opposes the prayer by submitting that on the basis of source information, the police rightly acted upon in the person who was transporting the liquor, has named the applicant, as the person who has given him the liquor on whose instruction the liquor was transported. It was also found that the vehicle involved in the offence is belongs to the applicant, therefore, he has rightly been implicated in the present crime.
(5). I have heard learned counsel for the parties and perused the copy of charge-sheet.
(6) The present applicant has been put to investigation on the basis of information given by the co-accused Surendra Kumar. Learned counsel for the applicant has submitted that the applicant is the license holder of the Ravati Foreign liquor shop and in the view of newly incorporated section 61 of the M.P., the court can take cognizance against the present applicant only on the complaint or report of the collector or an Excise Officer as may be authorized by the Collector in this behalf. Newly amended Section 61 of M.P. Excise reads as under:
"61. Limitation of prosecution.-(1) No court shall take cognizance of an offence punishable- (a) under [Section 34 for the contravention of any condition of a licence, permit or pass granted under this Act, Section 37], section 38, section 38- A, section 39, except on a complaint or report of the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorised by the Collector in this behalf; (b) under any other section of this Act other than section 49 except on the complaint or report of an Excise Officer or Police Officer.
(2) Except with the special sanction of the State Government no Judicial Magistrate shall take cognizance of any offence punishable under this Act, or any rule or order thereunder, unless the prosecution is instituted within six months from the date on which the offence is alleged to have been committed."
(7) From the perusal of the documents filed by the applicant shows that he holds a license issued by the State Government for Ravati Group of Excise 4 including foreign liquor shop at Rawati which is for the period of 01.04.2018 to 31.03.2019. Therefore, being a liquor licensee his case will be governed by the amended section 61 of M.P. Excise Act. In the present case admittedly neither the complaint has been made by the Collector to the police nor by the District Excise Officer and they have also not authorized to police to investigate the matter against the applicant. Complaint has been defined under Section 2(d) of Cr.P.C. which reads as under: -
"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
(8). From the perusal of the aforesaid provision, it is evident that if a person is found to be flouting the conditions of license and if he is required to be prosecuted then the compliant has to be filed by the Collector or an Officer authorized by the Collector as contemplated under Section 61 of the Act. Report regarding contravention of any of the conditions of licence could have been made by the Collector or an Excise Officer while registering an offence by competent Police station or concerning Excise Circle. Therefore, the police may exercise the power to register the FIR provided the said report is made by either collector or any other officer authorized in this behalf by the Collector.
(9) In the present case, the prosecution in respect of offence under Section 34 and 42 of the Act has been initiated against the applicant at the instance of police and therefore, learned Magistrate could not have taken cognizance of the offence in view of the provisions embodied in Section 61 (1) (a) of the Act. The applicant is implicated in the present crime only on the basis of information given by the co-accused Surendra Kumar and except this there is no other admissible evidence is available against the 5 applicant.
(10). The applicant is having a valid license and hence he has sell or transport the liquor, there is nothing to show that the applicant is committed any offence under Section 34 (2) and 42 of M.P. Excise as there is no breach of any condition of license granted in favour of the applicant. In these circumstances, the prosecution of the applicant certainly amount to a breach of process of law. Hence, it is a fit case to exercise the inherent power under Section 482 of this Court .
(11) Resultantly, petition is allowed. FIR registered at No.202/2018 under Section 34 (2) and 42 of M.P. Excise Act at Police Station- Ravati, District Ratlam as well as the charge-sheet and further proceedings against the applicant Nand Kishore Sharma are hereby quashed.
(12). The petition is disposed of accordingly.
C.C as per rules.
(S.K. Awasthi) Judge praveen Digitally signed by PRAVEEN KUMAR NAYAK Date: 2018.10.25 13:48:01 +05'30'