Allahabad High Court
Siyaram vs State Of U.P. And Others on 26 July, 2013
Author: Ravindra Singh
Bench: Ravindra Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Criminal Misc. Writ Petition No. 12475 of 2011 Siyaram Vs. State of U.P.and others Hon'ble Ravindra Singh, J.
Hon'ble Anil Kumar Agarwal, J.
Heard Sri Indra Mani Tripathi, learned counsel for the petitioner and learned A.G.A.for the State of U.P. This petition has been filed by the petitioner Siyaram with the following prayers :
A)Issue writ, order or direction in the nature of certiorari to quash the impugned Government Order dated 26.2.2010 and 12.4.2010 issued by respondent no.1 and 2, and consequential FIR dated 20.5.2011 lodged by the respondent no.3 in case crime no. 426 of 2011 under sections 272/273 and 60 Excise Act, 1910, registered in police station Hari Parvat, Agra district Agra.
B)Issue writ, order or direction in the nature of Mandamus commanding the respondents not to initiate any coercive measures and stay the arrest of petitioner in case crime no. 426 of 2011 under sections 272, 273 IPC and 60 Excise Act, 1910, registered in police station Hari Parvat Agra and district Agra otherwise the petitioner/applicant shall suffer irreparable loss and injury.
C)further more, this Hon'ble court may graciously be pleased to declare the G.O. dated 26.2.2010, 12.4.2010 issued by the respondent nos. 1 and 2 to the extent of invocation of section 272/273 IPC is unjustified, non est and ultra virus of Article 14 of the Constitution of India.
Or may pass/issue such other writ, order or direction like a nature as this Hon'ble court may deem fit and proper in the aforesaid facts and circumstances of case.
D)Award the cost of petition.
The above mentioned relief has been sought on the following grounds:
a)Because the whole act of the respondents are illegal, arbitrary, malafide, without jurisdiction and against the law, Rules and procedure of the various enactment of central government.
b)Because the petitioner is an employee of valid registered and authorized Firm's running the medical shop and sell, stock or exhibit for sale or distribute by retail, the Drugs in accordance with rules, and regulations of the Drugs and Cosmetics Act, 1040 and Rules 1945.
c)Because the aforesaid Firm known as "M/s Sharma Drug House" situated at Freeganj Agra, is fully eligible doing aforesaid business of Drugs and cosmetics under the license issued by the appropriate authority in accordance with the Act 1940 and its rule 1945.
d)Because the aforesaid "M/s Sharma Drug House" situated at freeganj Agra, after completing whole requirements, formalities and after depositing requisite charges/fees with due permission of authorities as prescribed under the aforesaid Rules 1945 made applicable and the appropriate licensing authority after being full satisfaction has issued the license.
e)Because the aforesaid Drug License issued with the name of Mohit Sharma under the title "M/s Sharma Drug House" situated at freeganj Agra, is valid upto 31.12.2011.
f)Because there is no any complaint amongst the public against the "M/s Sharma Drug House" situated as freeganj, Agra. The aforesaid Firms and petitioner has unblemished carrier till today.
g)Because the petitioner has been alleged with case crime no. 426 of 2011 under section 272,273 IPC and 60 Excise Act 1910 registered in police station Hari Parvat, Agra, and District Agra.
h)Because the FIR itself explanatory that it has been lodged by respondent no. 3 the Excise Inspector , only on suspicion and probability.
i)because the recovery of unlocked/open bottles contains 100 ml liquid alleged to have been made by the respondent no. 3, treating malafide and inimical to the petitioner employer Firm's due to ulterior motive and for some things, which clearly reveals that he has falsely implicated the petitioner with ulterior motive, only being an employee of the Firm as "M/s Sharma Drug House".
j)Because the petitioner is an employee of the medical firm known as "M/s Sharma Drug House", situated at Freeganj Agra.
k)Because the aforesaid medical Firm registered and governed with provisions of Drugs and Cosmetic Act, 1940( Act 1940) and Drugs and Cosmetic Rule, 1945( Rule 1945).
l)Because the deponent is proprietor of aforesaid medical Firm as "M/s Sharma Drug House" fully eligible and qualified doing the business of Drugs and cosmetics under the aforesaid Rules 1945 and Act 1940.
m)Because the aforesaid Drug License under the designation of aforesaid Firm's as "M/s Sharma Drug House" is valid, renewed and up-to dated 31.12.2011. It is further made clear that the license of the aforesaid Firm has neither suspended nor cancelled till today.
n)Because the aforesaid G.O. dated 26.2.2010 and 12.4.2010 has no application with the petitioner employer Firms, and same G.O. to the extent of invocation of section 272/273 IPC are violating the Art. 14 of the Constitution of India, and contrary to the provision of PFA Act Food Safety and Standard Act 2006( FSSA Act 2006) and Drugs and Cosmetics Act 1940, its Rules 1945.
o)Because there is nothing to show that the petitioner indulged in doing any wrong things or in violation of any terms and condition of Rules or License.
p)Because the petitioner has no concerned with Methyl Alcohol' the main component of Tincture' is 'Ethyl Alcohol' as such it is absolutely wrong, false and mere an allegation that the petitioner indulged in doing business of Methyl Alcohol' or its component.
q)Because some of the identical medical Firms Operators/ Proprietors have challenged the similar acts of the respondents authority, before this Hon'ble court by means of W.P. No. 27461 /09, 30581/09 and 30583 /09 in which this Hon'ble court has pleased to pass the interim order dated 3.6.2009 and 17.7.2009 whereby directed the respondent's authority to open the shop/medical stores of the concerned petitioner's Firms and allowed them carrying their business.
r)Because identical Firms as petitioner's employer Firm filed writ petition nos. 63965 and 61761 of 2010 before this Hon'ble Court, which has been allowed by vide order dated 25.11.010 and 24.11.2010 whereby directed the respondent to de-sealed the shops/Firm.
s)Because the proprietor of "M/s Sharma Drug House" situated at freeganj at last made complaint to the various authorities of state including respondents by means of telegram dated 20/21.05.2011, but the respondents have not paid heed to the matter, while threatening to dare consequences instead to comply with the law, procedure and order's of this Hon'ble Court.
t)Because the act of respondent's violates Art. 14,16,19,21 and 22 of the Constitution of India.
The facts, in brief, of this case are that that impugned FIR dated 20.5.2011 has been lodged by Ajay Singh at Police Station Hari Parwat, District Agra against the petitioner in case crime No. 426 of 2011 under section 60 Excise Act and Sections 272, 273 I.P.C. mentioning there in that an information was received by Ajay Singh, Excise Inspector, Sector 2, Agra through his Mukhbir Khas on 20.5.2011 at about 5.00 P.M. that a person having some bottles in a bag was sitting behind Sai Kripa Temple and he was selling the liquor, the first informant along with other persons of his staff proceeded to the place of incident, on arrival of the team of the first informant two persons, who was standing at the place of incident tried to escape but miscreant was apprehended, another miscreant successfully escaped from the place of incident, the person who was apprehended by the team of first informant disclosed his name as Siyaram, his search was made by the first informant, on his search 53 small bottles kept in a bag were recovered which were giving the smell of the alcohol, on its testing 76.8% V/V was found. The petitioner, who was apprehended on the spot, stated that the person who successfully escaped from the place of incident was a customer.
It is contended by learned counsel for the petitioner that impugned order/letter dated 26.2.2010 passed by Principal Secretary (Home) , U.P.Govt.Lucknow and order dated 12.4.2010 passed by Chief Secretary , U.P. Govt. Lucknow are illegal, in pursuance of the order above mentioned impugned orders, the impugned FIR dated 20.5.2011 has been lodged against the petitioner, therefore, the impugned FIR is also illegal, the same may not be lodged against the petitioner, therefore, it may quashed.
(ii) The order/letter dated 26.2.2010 has been issued by Principal Secretary, U.P.Govt. Lucknow. The order/ letter dated 26..2.2010 has been communicated to Joint Commissioner, Dy. Commissioner, District Excise Officers and Assistant Excise Commissioner Pravertan mentioning therein that in case use of spurious liquor is not prevented, the concerned officers shall be responsible. In pursuance of the order dated 26.2.2010 it has also been directed that along with the offence under section 60 of the Excise Act, Section 372 I.P.C. may also be added and in such cases action under section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention ) Act may also be ensured. In the letter dated 26.2.2010 the Rule 79 of Excise Manual, Vol. I, Part III, Chapter - 2 has also been quoted. The order dated 26.2.2010 is illegal because on the basis of the offence of Excise Act, the offence punishable under section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention ) Act may not be imposed. The order/letter dated 26.2.2010 is against the provisions of U.P.Gangsters and Anti Social Activities (Prevention) Act.
(iii) The Circular/letter dated 12.4.2010 issued by Chief Secretary , U.P.Govt. Lucknow and circulated to all the Commissioners and District Magistrates of the U.P. Circular/Order dated 12.4.2010 has been issued in respect of subject Methyl Alcohol Se Sambandhit U.P.Poisons (Regulation of Possession and Sale) Niyamawali 1921 Yatha Sanshodhit Niyamawali 1994 Ke Prabhavi Kriyanavan Hetu Pratyek Janpad Mey Nodal Samiti Gathan Ke Sambandh Mey. The impugned order/circular dated 12.4.2010 has been issued to check the use of Mehyl Alcohol in the liquor. The impugned order/Circular dated 12.4.2010 is illegal and is against the provisions of law. In the light of the above mentioned order/circular dated 26.2.2010 and 12.4.2010, the impugned FIR dated 20.5.2011 has been lodged, the same is also illegal. It may also be quashed along with impugned order/Circular dated 26.2.1010 and 12.4.2010.
(iv) In the present case without the report of Public Analyst to show that sample of the recovered /seized liquor was noxious, the offence under sections 272, 273 I.P.C.has also been added in the impugned FIR, therefore, the impugned FIR dated 20.5.2011 and impugned order /circular dated 26.2.2010 and 24.2.2010 may be quashed.
In reply of the above contention it is submitted by learned A.G.A.that :
(i) Impugned FIR dated 20.5.2011 in case crime no. 426 of 2011 , Police Station Hari Parwat, District Agra has been investigated and charge sheet has been submitted under sections 272/273 I.P.C.and 60 Excise Act, on which the cognizance has been taken by learned Magistrate concerned, in such a circumstance, this petition has become infructuous. In case the petitioner is having any grievance against the charge sheet, the same may be challenged before the appropriate court.
(ii) The impugned FIR dated 20.5.2011 has not been lodged in pursuance of the order/circular dated 26.2.2010 and 12.4.2010. The order/circular dated 26.2.2010 has been issued by Principal Secretary of U.P.Government to prevent the use of spurious/noxious liquor and the responsibility has been fixed on the Senior Officers of the Excise Department, the Circular dated 26.2.2010 has been issued in accordance with law in which it is clearly mentioned that in case sample of liquor is found noxious, the offence punishable under section 272 I.P:C.may also be added and in such circumstances, action under section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention ) Act may also be ensured. In the impugned circular dated 26.2.2010, Rule 79 of Excise Manual, Vol. 1, Part III, Chapter - 2 has also been quoted. The action against a person on the basis of involvement under section 272 I.P.C., the action under section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act may be taken. The Circular is to check use of noxious liquor. The circular is fixing the responsibility of the Senior Officers of the Excise Department. It is not against the provision of any law, there is no illegality in the impugned circular.
(iii) The Circular dated 12.4.2010 issued by Chief Secretary U.P.Govt. with regard to the amendment of U.P.Poisons ( Regulation of Possession and Sale) Rules, 1921 amended in the year 1994 with regard to use of Methyl Alcohol. The impugned Circular dated 12.4.2010 is to ensure that Mehyl Alcohol may not be used in the liquor. This Circular is for the purpose of effective execution of the provisions of U.P. Poisons (Regulation of Possession and Sale) Rule 1921 amended Rule 1994. The impugned circular dated 12.4.2010 is not illegal and is not against any provision of law even it is not in contradiction with other circular or effective law. The impugned order /circular dated 26.2.2010 and dated 12.4.2010 are not illegal, the impugned FIR has not been lodged in pursuance of the above mentioned impugned order/circular. The allegations made in FIR are prima facie disclosing the cognizable offence. The lodging the impugned FIR is not barred by any law but in the present case after completing the investigation charge sheet has been submitted against the petitioner, therefore, the prayer for quashing the impugned order/circular and the FIR may be refused. The present writ petition is devoid of the merits, the same may be dismissed.
We have heard learned counsel for the petitioner and learned A.G.A. at length and have perused the record available including the impugned order/circular and the impugned FIR, from the perusal of the impugned order/circular dated 26.2.2010, it appears that it has been issued for the purpose of preventing the use of noxious/spurious liquor. The responsibility has also been fixed upon the Senior Officers of the Excise Department. In the said Circular, it is mentioned that in case liquor is found noxious, the section 272 I.P.C.may also be added and action under section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention ) Act may be ensured. In case the liquor is found to be noxious, section 272 I.P.C.may be added. In the said action under section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention ) Act may also be taken. In the impugned circular, the provision of Rule 79 of Excise Manual,Vol.1, Part III, Chapter - 2 have also been quoted.
The impugned circular/order dated 26.2.2010 is not against any provision of law, it is not contradiction of any circular or order issued by Government in any case order /circular dated 26.2.2010 may not be said to be illegal. The impugned order dated 12.4.2010 has been issued by Chief Secretary, U.P.Govt. Lucknow for constituting the Nodal Committee in every districts of State in compliance of the provisions of U.P. Provisions (Regulation of Possession and Sale) Rules, 1921 amended Rule 1994 for the purpose of ensuing that Methyl Alcohol may not be used in the Liquor. This Circular has been issued for effective execution of the above mentioned Rules. It is not against any provision of law even it is not in contradiction of effective law or other law/circular. The impugned order dated 12.4.2010 is not suffering from any illegality or irregularity. From the perusal of the FIR it also appears that it has not lodged in pursuance of the impugned order/circular dated 26.2.2010 and 12.4.2010. The allegations made in the impugned FIR which, prima facie, disclosing the commission of the cognizable offence, the lodging of the FIR is not barred by any law. There is no good ground to interfere in the impugned FIR. In the present case, on the basis of the impugned FIR the investigation has been completed and charge sheet has been submitted on which the learned Magistrate concerned has taken the cognizance. There is no good ground to interfere in the impugned FIR, therefore, the prayer for quashing the impugned order / circular dated 26.2.2012 issued by Principal Secretary, U.P. Government Lucknow and order/circular dated 12.4.2010 issued by Chief Secretary, U.P. Government, Lucknow and the impugned FIR dated 20.5.2011 is refused. The present writ petition is devoid of the merits.
Accordingly, it is dismissed.
Dated : July 26, 2013.
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