Madhya Pradesh High Court
Ritesh Sharma vs The State Of Madhya Pradesh on 10 October, 2023
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 10 th OF OCTOBER, 2023
MISC. CRIMINAL CASE No. 36264 of 2023
BETWEEN:-
RITESH SHARMA S/O SHRI JAMUNA PRASAD SHARMA,
AGED ABOUT 46 YEARS, OCCUPATION: CONTRACTOR
R/O H NO SF 40 SUKH SAGAR VALLEY POLIPATHAR P.S.
GAWRIGHAT DISTT. JABALPUR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI SUSHIL KUMAR SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION BUDHAR DISTRICT SHAHDOL (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI G.S.THAKUR - GOVT. ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
Petitioner has filed this petition under Section 482 of Cr.P.C for quashment of charge-sheet and also consequential proceedings i.e. R.C.T. No.989/2017 pending before Judicial Magistrate First Class, Shahdol.
2. Counsel appearing for petitioner submitted that Police Station-Budhar District-Shahdol has registered offence under Section 34(2) of Excise Act against petitioner. As per prosecution version, police received a tip from informer and on said information conducted raid on 07.09.2017 and found 2400 quarters of English liquor in vehicle Bolero No.CJ 07 AU 8717. Vehicle was Signature Not Verified Signed by: NEETI TIWARI Signing time: 13-10-2023 17:47:08 2 driven by one Ramchandra Bharadwaj. On the basis of his memorandum, petitioner was arrayed as an accused in the case. Petitioner was declared absconding and charge-sheet was filed against co-accused. Petitioner applied for anticipatory bail and same was allowed vide order dated 06.02.2019. It is submitted that petitioner is a license holder of Wine Shop. Entire proceedings before the Court is without jurisdiction. Cognizance of offence under Section 34 of MP Excise Act can be taken against license holder on complaint made by Collector or by District Excise Officer. Complaint was not preferred in accordance with Section 61 of Excise Act, therefore, proceedings are tented with mala-fide and same deserved to be quashed. Counsel appearing for petitioner has relied on order dated 05.05.2017 passed by this Court in M.Cr.C.No.4646/2017 in case of Girish Bhatnagar Vs. State of MP and order dated 10.05.2022 passed in M.Cr.C.No.13510/2022 in case of Rajesh Awasthi Vs. State of MP & Anr. It is submitted that in said cases, it was held that prosecution has not filed complaint before trial Court as required under Section 61 of Excise Act. Court cannot take cognizance of an offence unless and until a complaint is filed by Collector or Excise Officer. On said basis, cases registered against petitioners therein were quashed. In these circumstances, petition filed by petitioner may be allowed and charge-sheet and subsequent proceedings in case i.e. RCT No.989/2017 may be quashed.
3. Govt. Advocate appearing for State submitted that on basis of evidence available on record, applicant was made accused in the case. Vehicle Bolero No.CJ 07 AU 8717 was stopped and checked and 48 cartoons containing 2400 quarters of English liquor were found. License for keeping foreign liquor and permit for transporting the same was asked from the driver. Accused did not produce any valid license. Police seized illicit liquor and Signature Not Verified Signed by: NEETI TIWARI Signing time: 13-10-2023 17:47:08 3 registered case against driver. Petitioner was made accused in the case along with Manager-Rajesh Mishra under Section 42 of Excise Act. District Excise Officer has given information that on 07.08.2017 or before it, batch No.075-27, which was seized by Police, was not given to licensee-Ritesh Sharma for supply. Investigation was completed and final charge-sheet was filed, therefore, no inference is called for and petition filed by petitioner may be dismissed.
4. Heard learned counsel for parties.
5. Section 61 lays down that Court shall not take cognizance of an offence under Section 34 of Excise Act, 1915, if offender is holder of license or permit and there is infraction of condition laid down in license, permit or pass. In such case, cognizance can only be taken if a complaint has been filed by Collector or an Excise Officer not below the rank of District Excise Officer. In the present case, charge-sheet has been filed against petitioner by Police and no complaint as defined under Section 2(d) of Cr.P.C was filed. Conditions of license are mentioned in Section 28 of Excise Act, which is quoted as under :
"28. Form and conditions of licence etc .--
(i) Every permit or pass issued or licence granted under this Act shall be issued or granted on payment of such fees, for such period, subject to such restrictions and conditions and shall be in such form and contain such particulars as may be prescribed.
(2) The conditions prescribed under sub -section (1) may require, inter alia, the licensee to lift for sale, the minimum quantity of country spirit or Indian-made liquor, fixed for his shop and to pay the penalty at the prescribed rate on the quantity of liquor short lifted.
(3) Penalty at the prescribed rate on infraction or infringement of any conditions laid down in sub -section (1) of specifically enumerated in sub -section (2) shall be leviable on and recoverable from the licensee."Signature Not Verified Signed by: NEETI TIWARI Signing time: 13-10-2023 17:47:08 4
6. Unlawful acts, which are committed by license vendor are mentioned under Section 38, 38(A), 39 of the Act. Limitation of prosecution is provided under Section 61 of MP Excise Act, which is quoted as under :
"61. Limitation of prosecutions. -- (1) No Court shall take cognizance of an offence punishable --
(a) under 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 Exc ise Officer or Police Officer.
(2) Except with the special sanction of the State Government no Judicial Magistrate shall take cognizance of any offenc e 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 a lleged to have been committed."
7. From going through aforesaid scheme of MP Excise Act, 1915, it is clear that if offence is committed under Section 38, 38-A, 39 of Excise Act by holder of license or permit then prosecution has to file a complaint by Collector or an Excise Officer not below the rank of District Excise Officer authorized by Collector. If there is breach of condition of license of a licensee, then also FIR cannot be filed and a complaint case is required to be filed in the accordance with Section 61 of the Act.
8. Now, Court has to see as to what are conditions of license?
9. Conditions of License are mentioned in Section 28 of the Excise Act. Petitioner has also filed a copy of license, in which, conditions have been mentioned. If petitioner is in possession of liquor legally and he violates conditions of license i.e. bottles were not sealed; records were not maintained properly; licensee has not maintained stocks and invoices; licensee has not kept Signature Not Verified Signed by: NEETI TIWARI Signing time: 13-10-2023 17:47:08 5 accounts of stock received and stock sold; licensee has transported liquor as per the pass FL-25; licensee has purchased his liquor from warehouse NH 78 at Shahdol Budhar Road Gram Panchayat-Jamua; licensee will stock foreign liquor of which fee is paid; licensee will keep his shop closed during dry days; licensee will open his shop between 8.30 am to 9.30 pm.
10. Allegation against petitioner is not violation of aforesaid conditions by prosecution but allegation is made that driver of petitioner was transporting liquor without pass and said liquor has never been issued to petitioner by Excise Officer or by designated godown, which means that liquor, which was seized by Police, was illegal and offence does not relate to violation of conditions of license, therefore, no case is made out for quashing of Charge- sheet and subsequent proceedings pending before Judicial Magistrate First Class, Shahdol.
11. Petition filed by petitioner under Section 482 of Cr.P.C is dismissed.
(VISHAL DHAGAT) JUDGE nd Signature Not Verified Signed by: NEETI TIWARI Signing time: 13-10-2023 17:47:08