Madhya Pradesh High Court
Gajendra Singh Bhadoria vs The State Of Madhya Pradesh Thr on 8 February, 2017
1
M.Cr.C.No.13536/2016
(Gajendra Singh Bhadoria v. State of M.P.)
08/02/2017
Shri S.K. Shrivastava, counsel for the applicant.
Shri Arun Barua, Panel Lawyer for the
respondent/State.
Heard on I.A.No.407/2017. This is an application for bringing the subsequent event on record and also to seek an additional relief.
For the reasons mentioned in the application, the same is allowed.
The counsel for the applicant with the permission of the Court has carried out the amendment in the Court itself.
Heard finally.
This petition under Section 482 of CrPC has been filed for quashing the FIR in Crime No.54/2016 registered by Police Station Alampur, District Bhind under Section 34 of M.P. Excise Act and order dated 19.12.2006 by which cognizance has been taken by the Court.
The brief facts of the case are that on 20.07.2016, an information was received that one person of Village Khuja is selling country made liquour near the pond situated near the village. On the information of the informant, when the police team reached at village Khuja, one person was found in possession of plastic bag. On search of the plastic bag, 20 quarters of illegal country made liquor was found. On interrogation, he disclosed his name as Nanhoi S/o Ghansu Kushwah, aged 65 years, Resident of Khuja. He could not produce the license. On asking 2 M.Cr.C.No.13536/2016 (Gajendra Singh Bhadoria v. State of M.P.) about the liquour, it was stated that he has brought from Gajendra Contractor. The co-accused was arrested and FIR has registered against the applicant and co-accused.
It is submitted by the counsel for the applicant that the Court could not have taken cognizance in view of Section 61 of Excise Act and also there is no admissible evidence against the applicant.
Per contra, it is submitted by the counsel for the State that charge sheet has been filed, therefore, the defence of the applicant may not be considered.
The petitioner has been put to investigation on the basis of statement made by the co-accused under Section 27 of the Evidence Act. The case has been registered against him on the complaint of a Police Constable.
It is contended by the counsel for the applicant that in view of the newly incorporated Section 61 of the Excise Act, the Court can take cognizance only on the 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. However, the Court has taken cognizance of the offence on the basis of charge sheet which is bad in the light of Section 61 of Excise Act.
Newly amended Section 61 of the Act 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 3 M.Cr.C.No.13536/2016 (Gajendra Singh Bhadoria v. State of M.P.) 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."
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."
It is clear that if a person is found to be flouting the conditions of licence and if he is required to be prosecuted then the complaint has to be filed by the Collector or an Officer authorised by the Collector as contemplated under Section 61 of the Act. The coordinate Bench of this Court by order dated 23.11.2016 passed in the case of Gajendra Singh Bhadoria v. State of M.P. (M.Cr.C.No.11870/ 2016) has held as under:-
"Meaning thereby, if a person is found to be flouting the licence conditions and is required to be prosecuted then the private 4 M.Cr.C.No.13536/2016 (Gajendra Singh Bhadoria v. State of M.P.) complaint has to be filed by the Collector or an Officer authorised by the Collector as contemplated in Section 61 of the Act then only prosecution can be maintainable against any person who is having a licence. In some special circumstances, power to file a private complaint has been given to a competent authority/designated officer and therefore, complaint in any manner should have been filed by the Collector or his Authorised Officer as per 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 Police Station (Excise). Therefore, the police may exercise the power to register the FIR provided the said report is made by either Collector or any other Officer authorised in this behalf by the Collector. Here in the present case, report is admittedly not by either Collector or other Officer authorised by him, therefore, the prosecution against the present petitioner is against Section 61 of the Act.
In the instant case,the prosecution in respect of offence under Section 34 of the Act has been initiated 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 power of authorisation by the Collector is not absolute, it is circumscribed. It is not open to him to authorise any officer. The said view is further supported by the view expressed earlier by this Court in the matter of Shankarlal and Ors. Vs. State of M.P., 1990 JLJ 782 and Vijay Kumar & Rajendra Kumar & Co. Vs. State of M.P., 1987 (II) MPWN 54 as well as Gomti Prasad & Ors. Vs. State of M.P., 1976 MPWN 232.5 M.Cr.C.No.13536/2016
(Gajendra Singh Bhadoria v. State of M.P.) With the amendment Act of 2014, M.P.Excise (Amended Act), 2014 has included Section 34 into the ambit of Section 61 of the Act. Thus, intention of legislature is clear wherein the offence coming under Section 34 of the Act also are to be treated and prosecuted in a manner as provided under Section 61 of the Act. In the light of Section 4 and 5 of the Cr.P.C., potency and effect of Section 61 becomes more vigorous because it is settled in law that Special Law prevails over General Law. Here the previsions of M.P. Excise Act,1915 would prevail over the provisions of Cr.P.C."
Thus, it is clear that since the complaint has not been filed either by the Collector or by his authorised officer and the FIR was not lodged on the report of the Collector or any officer authorised by him in this behalf, therefore, the Court below could not have taken cognizance of the case.
Learned counsel for the applicant submits that a false FIR has been registered against the applicant. No investigation has been made against the applicant. The applicant is having a valid license issued by the Collector, District Bhind to sell the country made liquor and the license is valid from 01.04.2016 to 31.03.2017. The applicant has been implicated on the information of co-accused. The applicant is a valid licensee, hence, no offence has been committed by the applicant as he has not breached any condition of license granted to him. Therefore, the prosecution of the applicant is bad and without any admissible evidence. Hence, prayed that the FIR registered 6 M.Cr.C.No.13536/2016 (Gajendra Singh Bhadoria v. State of M.P.) against the applicant and consequent proceedings may be quashed. The learned counsel also relied upon order dated 19.10.2016 passed by coordinate Bench of this Court passed in the case of Gajendra Singh Bhadoria v. State of M.P. (M.Cr.C.No.11870/ 2016) and order dated 23.11.2016 passed in the case of Gajendra Singh Bhadoria v. State of M.P. (M.Cr.C.No.11873/2016), and submitted that on similar allegations the FIR has been quashed.
Learned Public Prosecutor fairly conceded that except the statement of the co-accused recorded under Section 27 of Evidence Act, there is no other admissible evidence available against the applicant.
I have considered the submissions of the learned counsel and on perusal of FIR, it appears that accused Nanhoi has been apprehended by the police having found in possession of country made liquor and was not having any license. He had disclosed that liquor has been purchased from the shop of the applicant.
On behalf of the applicant, copy of the license has been produced which reveals that license has been granted by the Collector District Bhind in favour of the applicant for retail sale of country made liquor from 01.04.2016 to 31.03.2017. Considering that applicant is having a valid license he has a right to sell the liquor even if it is assumed that co-accused has purchased the liquor seized from his possession, prima facie, it cannot be said that the applicant has committed any offence under Section 34 of M.P. Excise Act as there is no breach of any condition of the 7 M.Cr.C.No.13536/2016 (Gajendra Singh Bhadoria v. State of M.P.) license granted in favour of the applicant. In such circumstances, the prosecution of the applicant certainly amount to a breach of process of law. Hence, it is fit case to exercise the inherent powers of this Court.
Consequently, this petition is allowed. FIR registered at Crime No.54/2016 under Section 34 of M.P. Excise Act at Police Station-Alampur, District- Bhind as well as the order dated 19.12.2016 taking cognizance are hereby quashed.
The petition is disposed of accordingly.
(G.S.Ahluwalia)
(ra) Judge