Madhya Pradesh High Court
Jagdish Kumar Arora vs The State Of Madhya Pradesh on 4 January, 2018
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: HON'BLE MR. S. C. SHARMA, J
MISC. CRIMINAL CASE No. 10414 / 2015
JAGDISH KUMAR ARORA
AND ANOTHER
Vs.
STATE OF MADHYA PRADESH
AND
MISC. CRIMINAL CASE No. 10416 / 2015
JAGDISH KUMAR ARORA
AND ANOTHER
Vs.
STATE OF MADHYA PRADESH
*****
Mr. Vinay Saraf, learned senior counsel appearing with Mr. Rizwan Khan,
Advocate for the petitioners.
Mr. Abhinav Malhotra, learned counsel for the respondent - State.
*****
ORDER
( 04/01/2018) Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Writ Petition No. 10414 / 2015 are narrated hereunder.
The present petition has been filed u/S. 482 of the
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Code of Criminal Procedure, 1973 for quashment of the proceedings of the criminal trial, to the extent the present applicants are concerned, pending before the Additional Sessions Judge, Indore, arising out of Crime No. 369/2008 of Police Station Manpur, Distt. Indore.
Facts of the case reveal that on 3/5/2008 one Rajiv Kumar Upadhyay, Excise Sub Inspector, conducted a search at the residential house of one Guddu Jaiswal and seized 531 boxes of beer, 101 boxes of Gypsy Whysky, 2 boxes of Blue Chips Whisky, 210 quarters of Masala Country Liquor and 2370 quarters of Plain Country Liquor. He was arrested and charge sheeted for offence u/S. 34(2) of the MP Excise Act, 1915. The criminal case and the charge sheet against Guddu Jaiswal is not the subject matter of the present petition.
During investigation of the criminal case which was registered against Guddu Jaiswal, examination of seized bottles were done and after examining the holograms affixed upon the seized bottles, the Excise Sub Inspector Rajiv Kumar Upadhyay lodged a report at Police Station Manpur
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on 28/8/2008 (Annexure P/1) alleging that the holograms affixed on the bottles of foreign liquors seized by him from the possession of Guddu Jaiswal, were forged and fabricated holograms. Based upon the report of Rajiv Kumar Upadhyay, a criminal case was registered against the present applicants who are Directors of Som Distillery, for an offence u/Ss. 420, 467 and 468 of the Indian Penal Code. A charge sheet was filed in the matter and thereafter the case was committed for trial before the learned Additional Sessions Judge. Now, it is pending before the 10th Additional Sessions Judge, Indore.
The allegation against the present petitioners is that in conspiracy with Excise Officers, they have prepared forged and fabricated holograms and forged and fabricated holograms were affixed upon the bottles after the liquor was manufactured and exported out of the Distillery. It has been argued by the learned counsel for the petitioners that the State of Madhya Pradesh through Excise Department constituted a High Power Investigation Committee for
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examination of holograms affixed on the bottles seized from Guddu Jaiswal and the Members of the said Committee were, one Additional Excise Commissioner and three Dy. Excise Commissioners. After examination of holograms affixed on the bottles seized from the possession of Guddu Jaiswal, the same were found to be genuine holograms and it was held that the holograms were not forged and fabricated. Examination of the holograms was done by the Competent Authority based upon the examination report. Report of the Committee is also on record and the Committee in its report has categorically held that the holograms affixed on the bottles which were recovered from Guddu Jaiswal were not at all forged and fabricated holograms. The relevant excerpts of the report of the Committee reads as under :
ih&8 dzekad 33 fnukad 03-05-2008 %& izdj.k esa efnjk dk voS/k :i ls laxzfgr gksuk ik;k x;kA tIr'kqnk efnjk ds gksyksxzke ijh{k.k djus ij gksyksxzke lgh ik;s x;s tIr efnjk ds yscYl ij mRiknu dh frfFk pLik gksyksxzke izkfIr dh frfFk ds iwoZ dh vafdr gksus ds dkj.k lgk;d vkcdkjh vk;qDr] bUnkSj }kjk izdj.k esa izkfIr lwpuk fjiksVZ ntZ djus gsrq f'kdk;r Fkkuk ekuiqj esa dh xbZ gSA udyh gksyksxzke yxk, tkus dh iqf"V ugha gqbZ gSA Learned counsel for the petitioner has also argued
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before this Court that as per the statutory provisions governing the field as contained under the MP Excise Act, 1915 or the Rules made thereunder, there is no provision for affixing holograms on bottles and vide Circular dated 8/6/2007 the Excise Commissioner has issued directions to all the Distilleries and Breweries to affix the holograms upon all available old stock. It has been argued that once affixing of hologram is not the mandate of any statutory provision, though holograms in the present case are genuine holograms and even if it is presumed for a moment that the holograms were fake holograms, no crime has been committed by the present petitioners who are Directors of Distillery. It has also been argued that there is not even an iota of evidence against the present petitioners in respect of their involvement in the offence alleged. In the entire process of manufacturing, bottling, labelling, packaging and affixing of holograms and dispatch of liquor, there is no role of the Directors of the Distilleries and Breweries and it was done under the supervision of the Excise Officers. It has
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been prayed that the criminal proceedings to the extent the present petitioners are concerned, deserves to be quashed.
Learned counsel for the respondent - State has vehemently argued before this Court the bottles which were recovered from the house of Guddu Jaiswal were containing forged and fabricated holograms and as fake holograms were affixed on the bottles, therefore offence was rightly registered against the present petitioners based upon the report of Rajiv Kumar Upadhyay. However, he has not disputed the report submitted by the State Government dated 12/7/2008 which is a report of the High Power Investigation Committee holding that the hologram were not at all forged and fabricated holograms.
Heard learned counsel for the parties at length and perused the record.
After hearing learned counsel for the parties and after going through the record, it is evident that the requirement of hologram is in a Circular and not provided under any statutory provision of law. A similar issue came up before
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this Court in the case of P. V. Muralidharan Vs. State of Madhya Pradesh (M.CR.C.No. 1238/2014, decided on 3/2/2015). A coordinate Bench of this Court in paragraph 2 to 9 has held as under :
2. The brief facts giving rise to this application are that on 29.05.2011, when Sub-Inspector (Excise) along with his force was petrolling the area, he intercepted goods vehicle bearing registration No.MP06-HC-0861 and MP06-HC-1157 on suspicion. The vehicles were loaded with liquor. They produced permit for the liquor. The vehicles were carrying 500 and 1000 cartons of liquor respectively. The sub-inspector checked 10 cartons from each vehicle and found that in many of such boxes, the required holograms were not affixed and, therefore, he proceeded to take action against the present applicant and other co-accused.
3. While dealing with the matter, the question raised before the learned Additional Sessions Judge was whether the present applicant was liable for affixing holograms on the cartons. The learned Additional Sessions Judge as well as the Magistrate were of the view that at the stage of framing of charge, it could not be decided whether the accused were under liability of affixing the hologram on the cartons containing the liquor.
4. Before the proceeding to decide the controversy involved in the matter, it may be observed that Commissioner Excise issued an instruction which is filed as (Annexure P/4) at page 16 with the application directing therein that earlier instructions were issued for affixing of hologram on all the bottles and cartons of liquor which is duty paid. In the circular (Annexure P/4), it was observed that it was assumed by the officer issuing the instruction that under the previous instruction, all the bottles and cartons must be carrying such holograms affixed on it and, therefore, when any carton or bottles are found in the shops selling such liquor it may be presumed that the liquor was not duty paid and instant action should be taken against them.
5. Under these instructions, the learned counsel for the applicant submits, inter-alia, that in the present case firstly, the present applicant was not under the liability of affixing holograms on the bottles and cartons of the liquor and secondly, he submits that even if it is assumed that the present applicant was under the obligation to affix the hologram, the affixing of hologram is nowhere provided in the Act or Rules and, therefore, charges as
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aforesaid cannot be framed against him for violation of any provision of Act and Rules.
6. During the argument, learned counsel for the State could not provide any provision of law or the Rules where affixing of hologram is made mandatory and the liability is placed on the licensee or the permit holder. So far as, the instruction issued by the Excise Commissioner is concerned that is only an executive instruction to ensure that only duty paid liquor should be sold in the market. The language used in the circular indicates that when boxes containing bottles of liquor are found without hologram then it may be presumed that such liquor is not duty paid and instant action should be taken, that is to say that it is to be enquired into whether the liquor is duty paid or not. Only when it is found that the liquor is not duty paid, the criminal proceeding should be initiated. As offence is, selling or transporting liquor, which is not duty paid and merely, because the cartons and the bottles are not affixed with holograms, such an omission is not punishable.
7. In this view of the matter in the present case, the bottles and the carton containing bottles of the liquor that was subject matter of this criminal case were not found to be not duty paid and it is only the case of the prosecuting agency that the boxes and the bottles were found without holograms.
8. That be so, I find that the application deserves to be allowed and accordingly, the application is allowed. The proceeding against the present applicant pending before the Judicial Magistrate First Class, Ujjain in Crime No.4080/2011 so far as, it relates to the present applicant are quashed.
9. With the aforesaid observation and direction, this application stands disposed of.
The aforesaid judgment reveals that in similar circumstances a criminal case was registered as the bottles found in a Truck which were required to contain holograms, were not having holograms. The learned Single Judge has held that the requirement of putting hologram is not a requirement under any law and the omission is not
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punishable as it is not an offence under any statute. The present case stands on a better footings. There were holograms affixed on the bottles and there is a report submitted by the State Government dated 3/5/2008 establishing that the holograms were not at all forged or fabricated holograms. Even if it is presumed for a moment that holograms are forged and fabricated, in the light of the judgment delivered by the coordinate Bench of this Court passed in M.CR.C.No. 1238/2014, no case is made out against the present petitioners who are Directors of Distillery. No purpose is going to be served by continuing the trial as no offence is made out on the basis of material produced before this Court against the present petitioners.
Resultantly, the present petition preferred u/S. 482 of the Code of Criminal Procedure, 1973 stands allowed. The trial to the extent the present petitioners are concerned, is hereby quashed.
In other connected matter ie., M.CR.C.No. 10416/2015, search was conducted at the residence of one
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Mahendra Rao Maratha on 27/2/2008 and boxes of Blue Chip Tango were recovered from him. He is facing trial u/S. 34(2) of the M. P. Excise Act, 1915. In respect of liquor seized from Mahendra Rao Maratha again a report was lodged by Rajiv Kumar Upadhyay alleging that the holograms are forged and fabricated and a crime was registered at Crime No. 274/2008 and S.T.No. 732/2009 is pending against the same petitioners and, therefore, the criminal proceedings pending against the petitioners in respect of S.T.No. 732/2009, as facts are identical, is also quashed.
No order as to costs.
(S. C. SHARMA) JUDGE KR Kamal Rathor 2018.01.11 12:03:40 -08'00'