Madhya Pradesh High Court
Gopal Shivhare vs The State Of Madhya Pradesh on 16 August, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C. No. 2349/2017
Gopal Shivhare
Vs
State of M.P.
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Shri Manish Datt, learned senior counsel with Shri Siddharth
Datt for the petitioners.
Shri S.B. Agnihotri, learned G.A. for the respondent/State.
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ORDER
(16.08.2019) Petitioner has filed this miscellaneous criminal petition under Section 482 of the Cr.P.C. for quashing the Crime No. 147/2016 under Section 34(1) and 34(2) of MP Excise Act. which has been presented by Excise department Katni No. 3.
2. Case of prosecution is in short that on 20.09.2016, an information was received by Excise Sub Inspector, Katni that some illegal liquor was being transported in Maruti Swift car then Abkari Sub Inspector and other panch witnesses reached the spot at that time co-accused Rachit Jat, Pratik Parmar and Vijay Kumar Yadav were coming by a Maruti Swift- VDI car bearing No. MP 20/CE/2406 and they stopped the said car and searched it and found that Deshi Madira about 270 liters liquor was found which was seized from the co- accused Rachit Jat, Pratik Parmar and Vijay Kumar Yadav and they were arrested and case was registered. During the investigation, statement of witnesses have been recorded. While investigating, it was found that present petitioner/accused is license holder for selling liquor 2 M.Cr.C. No.2349/17 and co-accused Vijay Kumar Yadav is servant of present petitioner- accused, Vijay Kumar Yadav committed the offence under Section 34(2) of MP Excise Act, therefore present petitioner/accused is also liable. Excise Sub Inspector received the permission from District Magistrate to initiate the proceeding under the Excise Act against the petitioner/accused. Permission was granted for the same by District Magistrate then supplementary charge sheet has been filed against the petitioner/accused and other under Sections 34(1), 34(2) of MP Excise Act.
3. Learned counsel for the petitioner/accused submits that allegation is the whole charge sheet even if accepted in its entirety do not make any case against the present petitioner/accused. Petitioner/accused was not transporting the liquor, he is license holder, therefore, no offence is committed by him. There is no material which is available on the record on the basis of which cognizance can be taken against the petitioner/accused. All the allegations leveled against the present petitioner are false, frivolous and exaggerated. So this is a proper case in which inherent jurisdiction can be invoked. This proceeding before the trial Court against the present petitioner/accused is, misuse of the process of law, therefore, he prays for allowing the petition and prays that charge sheet may be set aside which is filed against the petitioner under Sections 34(1) and 34(2) of MP Excise Act.
4. Learned counsel for the State submits that there is prima facie material which is available on the record. Therefore he prays for dismissal of this petition.
3M.Cr.C. No.2349/17
5. Heard both the parties and perused the record.
6. It is evident from the record that petitioner/accused is license holder to sell the liquor. Vijay Kumar Yadav is the authorized employee of present petitioner/accused. Vijay Kumar Yadav and other persons were arrested for transporting the liquor with permit. The quantity of liquor was 270 liter, so case was registered against Vijay Kumar Yadav and co-accused Rachit Jat, Pratik Parmar under Section 34(1) and 34(2) of Excise Act. Therefore, it is evident that petitioner/accused is implicated in this case on this ground that petitioner/accused is license holder of the liquor, co-accused-Vijay Kumar Yadav is employee of present petitioner/accused and they were arrested for transporting the liquor without permit. Case was registered against them. So petitioner/accused is also liable for the act of his employee-Vijay Kumar Yadav. So first it is necessary to examined the provision of Section 34(2),(3) (4) and 44 of MP Excise Act, which is quoted as under:-
"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 repees:
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 repees but may extend to two lac rupees. (3) When an offence covered by clause (a) or clause
(b) of sub Section (1) is committed and the quantity of 4 M.Cr.C. No.2349/17 liquor found at the time or in the course of detection of such offence exceeds fifty bulk liters, all intoxicants, articles implements, utensils, materials, conveyance etc. in respect of or by means of which the offence is committed, shall be liable to be seized and confiscated.
It such an offence is committed by or on behalf of a person who holds a licence under the Act for manufacturing or stocking or storing liquor for sale on which duty at the prescribed rate has not been paid then notwithstanding anything contained in Section 31 the licence granted to him shall be canceled in case he is convicted for the offence as aforesaid.
(4). The seizure or confiscation of the intoxicants, articles, implements, utensils, materials and conveyance and the cancellation of licence as provided under sub-Section (2) above shall be in addition and without prejudice to any other action that may be taken under any provisions of the Act or rules made there under.
44. Criminal liability of licensee for acts of servants.- Where any offence under section 34, section 35, section 36, [section 36-A]1, section 38, [section 38- A]1, or section 39 is committed by any person in the employ and acting on behalf of the holder of a licence, permit or pass granted under this Act, such holder shall also be punishable as if he had himself committed the same, unless he establishes that all due and reasonable precautions were exercised by him to prevent the commission of such offence:
Provided that no person other than the actual offender shall be punishable with imprisonment except in default of payment of fine."
7. So it is clear from the aforesaid Sections that petitioner/accused is permit holder to sell liquor. Co-accused Vijay was his employee at the time of incident. According to the prosecution case, co-accused Vijay was arrested for transporting the liquor without any permit. Liquor was seized and case was registered against employee of the petitioner/accused Vijay. So petitioner/accused is liable under Section 44 of MP Excise Act, which prescribe criminal liabilities of licensee for act of servant.5 M.Cr.C. No.2349/17
8. In the case of State of Harayana Vs. Bhajan Lal and others reported in 1992 SCC (Cri) 426 the Hon'ble Apex court has held as under:-
"(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the un-controverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
9. The Hon'ble Apex court has laid down seven guide lines for exercising the inherent power of High Court under Section 482 of 6 M.Cr.C. No.2349/17 Cr.P.C. for quashing the FIR and this Court will examine the facts of the case under the light of above said principles.
10. Having read the above said principles, it is manifest that High Court should use its inherent power under Section 482 of Cr.P.C. to secure the ends of justice or to prevent an abuse of the process of any Court, but while exercising its power the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
11. Therefore, it is evident that there is primary material which is available on the record. Section 44 of MP Excise Act prescribes liabilities of licensee for act of servant. Therefore, it is not a proper case in which inherent jurisdiction can be invoked. Prosecution proved its case against the co-accused Vijay. Petitioner will establish this fact before the trial Court that all due and reasonable precaution were exercise by him to prevent the commission of such offence.
12. Accordingly, this petition is hereby dismissed.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.08.21 18:21:47 +05'30'