Madhya Pradesh High Court
Rakesh Singh Parihar vs The State Of Madhya Pradesh on 13 December, 2023
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 13 th OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 30044 of 2023
BETWEEN:-
RAKESH SINGH PARIHAR S/O SHRI TAULAN SINGH
PARIHAR, AGED ABOUT 43 YEARS, OCCUPATION:
BUSINESS R/O MARAILA POST PADRI P.S. SIRMOUR
DISTRICT REWA (MADHYA PRADESH)
.....APPLICANT
(BY SHRI SHARAD VERMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH STATION
HOUSE OFFICER POLICE STATION GOPHARU DISTRICT
SHAHDOL (MADHYA PRADESH)
.....RESPONDENT
(BY MS. PRIYANKA MISHRA - GOVERNMENT ADVOCATE)
Heard on : 23.11.2023
Pronounced on: 13.12.2023
This petition having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
ORDER
In this petition filed under Section 482 of CrPC the applicant has challenged the registration of FIR dated 03.05.2023 at Crime No.285/2023 in Police Station Gohparu District Shahdol for the offence under Section 34(2) of M.P. Excise Act. It is prayed that the FIR be quashed and the criminal proceedings initiated against the applicant be directed to be dropped.
2. Brief facts of the case registered at Crime No.285/2023 at Police Station Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 12/15/2023 5:39:48 PM 2 Gohparu District Shahdol are that Sub Inspector Subhash Dubey posted at that police station received information from Mukhbir about transportation of illicit liquor. He set up a vehicle check point and carried out checking of vehicles in the presence of witnesses and police party. At around 9:30 p.m. on 02.05.2023 truck No.MP-18/JA-4358 arriving from Shahdol side was stopped. The driver who was lone occupant of this vehicle was informed about the Mukhbir suchna. The driver named Mukesh Choudhary told the search officer that he was carrying the liquor under valid permits. Those two permits were inspected and it was found that one was valid for transportation of 28 boxes of foreign liquor and another for transportation of 51 boxes of beer. Upon search it was found that 28 boxes of foreign liquor and 165 boxes of beer were loaded on that truck. The seizure memo was prepared and the samples were drawn. There was no permit with the driver of the vehicle to validate the transpiration of excess liquor. The driver was arrested and FIR was registered against him as well as the vehicle owner namely Manish Gupta. Upon interrogation, driver revealed that he was carrying the liquor belonging to applicant. After investigation, charge-sheet was filed against driver Mukesh Choudhary, but final report reveals that the other person claimed to be involved in the crime, namely Manish Gupta and the present applicant Rakesh Singh Parihar both are absconding, therefore, charge-sheet is not filed against them.
3. The grounds raised in this criminal case are that the facts mentioned in FIR, even if taken on their face value do not prima facie constitute any offence against the applicant. He is being arrayed as accused only on the basis of memorandum of co-accused. Further, he is the licence holder of a liquor shop and the validity period of his licence is from 01.04.2023 to 31.03.2024, Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 12/15/2023 5:39:48 PM 3 therefore, prohibition of Section 61 of M.P. Excise Act is attracted here. The liquor belonging to applicant was being transported under a valid transit permit and a delivery challan. If any excess liquor was found in the vehicle, it was for the in-charge of warehouse and the driver of vehicle to explain. The applicant is not named in FIR. He was not even present at the time of raid or at the warehouse. The allegations made in FIR are absurd and inherently improbable. There is no legal evidence available against the applicant, which would suggest his involvement in the crime. The registration of FIR is a sheer abuse and misuse of process of law. Applicant has relied upon various citations of the Apex Court and also of the Co-ordinate Benches of this Court to emphasize that no case is made out against him. It is therefore, prayed that the FIR dated 03.05.2023 registered under Crime No.285/2023 be quashed and it be directed that the criminal proceedings initiated under that FIR against applicant be dropped.
4. The State has opposed the present case by claiming that the registration of FIR is based on search made at the spot and applicant is absconding therefore, no interference is warrant in the legal proceedings that is undertaken against him.
5. Both the parties have been heard and the record is perused.
6. The facts stated in the FIR have been examined in the backdrop of facts collected during investigation. The case diary reveals that on 03.05.2023, the driver of vehicle gave his memorandum statement under Section 27 of Indian Evidence Act claiming that all the liquor found in his truck belonged to applicant. He has further revealed that this liquor was loaded in his truck in the presence of applicant and only at the behest of truck owner Manish Gupta and liquor contractor Rakesh Singh Parihar (the present applicant), he was transporting this liquor to Amarpur, Umariya.
Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 12/15/2023 5:39:48 PM 47. Applicant's claim is that only a part of liquor that was found in the truck belonged to him and for this part he was holding a valid permit. His further claim is that the excess liquor that was found in the truck was not owned by him and he cannot be held responsible for illegal transportation of said liquor. As there is a dispute about the ownership of excess liquor, that matter can be resolved only through investigation and thereafter through trial. It is too early to give any certificate of innocence to the applicant regarding the ownership of this excess liquor.
8. These facts reflect that the present case is not the one in which the applicant is claiming to have been involved merely on the basis of memorandum of co-accused. The facts reveal that part of the liquor that was being transported in the truck belonged to applicant and whether the rest of the liquor, which was in excess to the permitted quantity belonged to applicant or to some other person is a matter of investigation and trial. Therefore, claim made by the applicant that he is being arrayed in the case only on the basis of memorandum of co-accused is prima facie not acceptable.
9. The other ground raised by the applicant in this case is that the prohibition of Section 61 of M.P. Excise Act applies here as the applicant is the licence holder of a liquor shop and no complaint was made by Collector or District Excise Officer, in this case. The provision of Section 61 M.P. Excise Act prohibits a Court to take cognizance of an offence which is committed under Section 34 of the Act for the contravention of any condition of a licence, permit or a pass granted under Act, if the prosecution case is not based upon any complaint or report of Collector or District Excise Officer.
10. Having considered the provision of Section 61 of M.P. Excise Act it Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 12/15/2023 5:39:48 PM 5 cannot be claimed that the facts of the case attracts the application of that provision. Here the crime of illegal transportation of liquor is claimed to have been committed in regard to excess liquor that was found in the truck and which allegedly belonged to applicant. For this excess liquor there was no permit in existence, nor can applicant claim that he was having any licence to validate this transportation. Thus, no offence of violating the conditions of permit or licence is alleged in this case. Section 61 of M.P. Excise Act comes into play only if any condition of licence/permit/pass is contravened. By no stretch of imagination it can be claimed or argued that under a permit of transporting a limited and defined quantity of liquor, applicant was entitled to transport undefined and excess quantity of liquor and his act was not supposed to be questioned under the regular provisions of M.P. Excise Act. In respect of excess quantity of illicit liquor he is at par with any other person who does not have any licence or permit or pass to transport illicit liquor and applicant does not have any immunity or privilege to transport illicit liquor.
11. The citation of Yogendra Singh vs. State of M.P. (M.Cr.C. No.11591/2021) is relied upon by the applicant, but that is not applicable here because in that case a lesser quantity of liquor was being transported to what was permissible for transportation, therefore, no question of transportation of illicit liquor was made out in that case. In the case of Gajendra Singh Bhadoriya vs. State of M.P. 2016 SCC online MP 12094 it was observed in para 16 of the order that there was no breach of condition of licence granted in favour of petitioner, resultantly, FIR registered against him was quashed. In Suresh Upadhyay vs. State M.P. (M.Cr.C. No.3387/2012 ) co-accused was found in possession of illicit liquor and he had named the applicant as the seller of said liquor under the memorandum statement. The Court observed that Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 12/15/2023 5:39:48 PM 6 considering that applicant had a valid licence to sell the liquor, it cannot be said that applicant had committed any offence under Section 34 or 42 of M.P. Excise Act even if it is assumed that co-accused had purchased the liquor from applicant. The facts of the present case are definitely distinguishable from the facts of the cases cited above by the applicant, therefore, principles laid down there cannot be applied in the present case.
12. On the basis of foregoing discussion, it can be inferred that the involvement of applicant in the alleged crime is a matter to be investigated, hence the FIR and the criminal proceeding initiated against the applicant on the basis of said FIR cannot be quashed. So far as the maintainability of the present case is concerned, in the light of the objection of State, the citation of Girish Bhatnagar vs. The State of M.P. (M.Cr.C. No.4646/2017 ) may be cited here for the guidance, in which it has been held that even if the applicant is absconding his petition under Section 482 of Cr.P.C. for quashing the proceedings is maintainable if he challenges the fact that the registration of crime was without jurisdiction.
13. Taking into considering the entire facts of the case, this petition is dismissed.
(ANURADHA SHUKLA) JUDGE rv/ps Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 12/15/2023 5:39:48 PM