Madhya Pradesh High Court
Hari Singh Shivhare vs The State Of Madhya Pradesh on 22 August, 2017
1 Mcrc.2977/17
Hari Singh Shivhare Vs. State of M.P.
22/8/17
Shri Sameer Kumar Shrivastava, Advocate for the petitioner.
Shri Ajay Chaturvedi, Public Prosecutor for the State.
1.Inherent powers of this court u/S. 482 of Cr.P.C. are invoked for seeking quashment of the FIR dated 13/7/2016 bearing Crime No. 428/16 registered by police station, Dabra district Gwalior (M.P.) alleging offences punishable u/Ss. 34 (2) and 42 of the M.P. Excise Act and as well as all other consequential proceedings flowing therefrom.
2. Learned counsel for the rival parties are heard.
3. The brief facts of the case are that on 12.07.2016, an information was received through reliable sources that a white coloured Tempo Trax bearing registration No. MP07/GA 1492 carrying illicit liquor was passing through Gwalior to Datia. On receipt of such information, the police party went to the spot for checking and during process they intercepted the vehicle in question which was carrying 225 cartoon of illicit country made liquour without any valid licence. On being asked about the licence the persons namely Hetram Rai and Harish Pal, who were carrying the alleged liquor at the behest of the petitioner, failed to produce licence and account for the stock. Accordingly, the vehicle was seized alongwith illicit liquor and the accused persons were arrested. Consequently, FIR was registered against the petitioner and other co-accused persons.
4. It is submitted by the counsel for the petitioner that the Court could not have taken cognizance in view of Section 61 of Excise Act and also that there is no admissible evidence available against the petitioner. It is also submitted by the counsel that in the course of the investigation, it was revealed that the petitioner was having the liquor licence issued by the Collector, District Gwalior to sell the country made liquor in the area in question which was valid from 2 Mcrc.2977/17 Hari Singh Shivhare Vs. State of M.P. 01.04.2016 to 31.03.2017 and he has also paid the duty on the liquor and yet the court-below ignored the relevant provisions of law and fell in error by taking cognizance against the petitioner which was solely based upon the memorandum of co-accused u/s. 27 of the Evidence Act.
4.1 Learned counsel for the petitioner further raised the ground that even if it is presumed for the sake of arguments that the alleged liquor was being taken for selling to a place for which there is no valid permit then in that case also as per newly amended provisions of Sec. 61 of the M.P. Excise Act, prosecution can be launched only on a complaint or report of the concerned District Magistrate or an Excise Officer not below the rank of District Excise Officer but in the case at hand the FIR has been lodged on complaint of a police constable and therefore there is gross violation of the provision of Sec. 61 of the Act.
4.2 Accordingly, it is submitted that the prosecution of the petitioner is bad and without any admissible evidence and prayed that the FIR registered against the petitioner and consequential proceedings may be quashed. In support of the aforesaid submissions, learned counsel for the petitioner has 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 the order dated 23.11.2016 passed in the case of Gajendra Singh Bhadoria v. State of M.P. (M.Cr.C.No.11873/2016) to contend that in similar set of circumstances, FIR was quashed by this court. 4.3 Per contra, it is submitted by the counsel for the State that charge sheet has been filed, therefore, the defence of the petitioner may not be considered at this stage.
5. Before considering the rival submissions of the counsel for the 3 Mcrc.2977/17 Hari Singh Shivhare Vs. State of M.P. parties, it would be profitable to reproduce newly amended Section 61 of the Act which reads as is 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 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."
5.1 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."
5.2 A bare perusal of the aforesaid makes it 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. Similarly, in the case of Gajendra Singh Bhadoria v. State of M.P. (M.Cr.C.No.11870/ 2016) decided on 23/11/2016 the coordinate Bench of this Court has taken the same view. Relevant extracts of the order dated 23/11/2016 are reproduced below :-
"In the instant case,the prosecution in respect of offence under Section 34 of the Act has been initiated at 4 Mcrc.2977/17 Hari Singh Shivhare Vs. State of M.P. 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.
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."
5.3 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 was not authorised to take cognizance of the case.
6. 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 petitioner.
7. On perusal of FIR, it appears that co-accused Het Ram and Harish were apprehended by the police having been found in possession of country made liquor without any valid licence. They have disclosed that liquor has been transported at the behest of the petitioner.
8. On behalf of the petitioner, copy of the licence has been 5 Mcrc.2977/17 Hari Singh Shivhare Vs. State of M.P. produced which reveals that liquor licence granted by the Collector District Gwalior in favour of the petitioner for retail sale of country made liquor was valid from 01.04.2016 to 31.03.2017. The petitioner being a valid licence holder is authorised to sell liquor. Even if it is assumed that co-accused are found taking the liquor seized from their possession, prima facie, it cannot be said that the petitioner has committed any offence under Sections 34 & 42 of M.P. Excise Act as there is no breach of any condition of the licence granted in favour of the petitioner.
9. In such circumstances, the very initiation of impugned prosecution against the petitioner being bereft of authority of law, is vitiated in the eyes of law. Thus, the continuance of such vitiated prosecution would defeat the ends of justice. Hence, it is a fit case for exercise of inherent powers of this Court u/S. 482 Cr.P.C. to prevent miscarriage of justice.
10. Consequently, this petition is allowed with the following directions :-
1. FIR dated 13/7/2016 bearing Crime No.428/2016 alleging offences punishable u/Ss. 34 (2) and 42 of M.P. Excise Act registered by Police Station Dabra, District Gwalior (M.P.) against the petitioner is hereby quashed.
2. All consequential proceedings flowing out of the said FIR also stand quashed.
No order as to cost.
(Sheel Nagu) Judge 22/8/2017 (Bu)