Madhya Pradesh High Court
Manoj Agrawal vs The State Of Madhya Pradesh on 7 February, 2020
Author: B. K. Shrivastava
Bench: B.K.Shrivastava
1
HIGH COURT OF MADHYA PRADESH, JABALPUR
SB: BEFORE HON'BLE SHRI JUSTICE B.K.SHRIVASTAVA
MCRC NO.34148/2018
Manoj Agrawal
Vs.
The State of Madhya Pradesh
Shri Anoop Saxena, counsel for the petitioner.
Shri Rizwan Khan, Government Advocate, for the respondent/State.
ORDER
(07.02.2020) This petition has been preferred on 21.8.2018 under section 482 of CrPC by the petitioner Manoj Agrawal for quashment of First Information Report of Crime No.233/2017, registered on 1.9.2017 under section 34(2) of M.P. Excise Act (hereinafter referred to as "the Act") at Police Station, Bamhorikala, District Tikamgarh.
2. It is submitted by the counsel for petitioner that the impugned registration of FIR (Annexure A-3) and its subsequent criminal proceedings initiated against the petitioner, are prima facie illegal, erroneous and contrary to law, therefore, liable to be quashed. Only upon the basis of memorandum of co-accused Raghuveer Lodi S/o Har Prasad Lodhi recorded under section 27 of the Evidence Act, the present petitioner has been made an accused. The aforesaid co-accused was never employed under the control of petitioner, which is crystal clear from the certificate dated 26.7.2018 issued by the District Excise Officer, Tikamgarh (Annexure A-5). The petitioner was having a valid and effective licence of his shop and no liquor has been recovered or 2 seized from his possession. No evidence is available against the present petitioner regarding the alleged crime. According to section 61 of the Act, in absence of any report or complaint by the Collector or District Excise Officer, no case/offence can be registered against the present petitioner and such type of complaint or report should be filed within a period of 6 months from the date of offence. But in this case there is no compliance of that mandatory provision.
3. It is also submitted that the Hon'ble High Court quashed the entire criminal proceedings in an identical matter in M.Cr.C.No.4646/2017 (Annexure A-6), therefore, registration of FIR and its subsequent criminal proceedings against the petitioner is an abuse of process of law. The petitioner has not committed any offence and has been falsely implicated in this case. Looking to the entire facts, grounds and circumstances of the case, prima facie, no case under section 34 (2) of the Act is made out against the present petitioner and the ingredients of section are missing in the present case. The prosecution has totally failed to comply the mandatory provision of section 61 of M.P.Excise Act. Therefore, it is prayed to quash the First Information Report of Crime No.233/2017, registered on 1.9.2017 under section 34 (2) of the Act, registered at Police Station Bamhorikala, District Tikamgarh.
4. On the other side, the State strongly opposed the application. It is submitted by the State that sufficient evidence is available against the present petitioner. The petitioner is absconding. After obtaining the permission from the Superintendent of Police on 9.4.2018, challan has been filed against the two co-accused persons on 10.4.2018 and the present petitioner has been shown as absconded accused under section 299 of CrPC. His application for grant of anticipatory bail under section 438 of CrPC was also dismissed on 17.7.2018. The prosecution recorded the statements of various witnesses and looking to the evidence collected during the investigation, it is found that sufficient grounds are available against the present petitioner. The permission is required only for taking the cognizance of offence. The petitioner is absconded.
3Therefore, when he will be arrested at that time supplementary chargesheet will be filed with the permission required under the relevant law. At present, no chargesheet has been filed against the present petitioner. Because his custodial interrogation is also required, therefore, the petition is liable to be dismissed.
5. As per prosecution case, the Station Officer, Police Station Bamhorikala received the secret information during the routine round of locality. He got the information on mobile that a blue colour Maruti Van is coming from the side of Mauranipur; upon which words "Om Sai Ram" are written on the front glass. In the aforesaid Maruti Van, illegal liquor of the shop of Jikhangaon, Police Station Teharka has been transported. Suresh Rai saw that the liquor has been loaded in the aforesaid Maruti and two young boys are in the aforesaid Maruti. The Station Officer called 2 witnesses named Paras Ram Ghosh and Satyendra alias Bachcha Yadav and gave the information to the aforesaid witnesses. Thereafter, he reached to the spot with the force and the witnesses. When he reached to Mauranipur Road near the Dal Mill, he found the Maruti Van was coming in a very high speed. When the driver of Maruti Van saw the police, he turned the Maruti on left side towards the gate of Dal Mill but he could not succeed to flee with the Maruti because there was a wall of Dal Mill. Thereafter, both boys fled away from the spot leaving the Maruti before reaching the police near to them. Thereafter, the police took the search of the aforesaid Maruti and found 126 litres country-made liquor in the aforesaid vehicle. There was no any legal documents in the Maruti.
6. Thereafter, the police registered Crime No.233/2017 under section 34(2) and 45 of the Act. The police arrested Rahuveer Lodhi and Banti alias Satyendra Singh Parihar. When the police interrogated the aforesaid 2 accused, they gave the substantive information under their memo under section 27 of the Evidence Act. As per information, Raghuveer Lodhi is working as salesman in the shop of petitioner since 4 4 to 5 years back. Petitioner Manoj Agrawal is the Contractor of liquor and Rahuveer Lodhi is working under the control of petitioner Manoj Agrawal. Upon the instructions of Manoj Agrawal, Raghuveer Lodhi is selling the liquor to the outsiders. On 30.8.2017, Banti alias Satyendra Singh Parihar contacted to Raghuveer Lodhi on mobile and told that he wants liquor, then Raghuveer promised to provide and told him to come in the evening. On 31.8.2017 at about 8:00 a.m. Banti alias Satyendra Singh Parihar reached with Bhanu Pateriya by Maruti Van No. UP 93 H 0956. Raghuveer Lodhi loaded the aforesaid liquor in the Maruti Van by receiving Rs.18,200/-.
7. Police arrested Banti alias Satyendra Singh Parihar, who also supported the aforesaid statement and said that when they were going by Maruti, they noticed that the police is following them. He told to Bhanu Pateriya to turn the vehicle towards the Dal Mill and to enter into Dal Mill. But when the vehicle was turned towards the Dal Mill, the gate of Dal Mill was locked, therefore, they fled away after leaving the vehicle.
8. It appears from the case diary that the police recorded the statements of Parasram Ghosh and Satyendra alias Bachcha Yadav, who are the witnesses of seizure on the spot. The police also recorded the statements of Suresh Rai, who supported the fact that he was present at the time when the liquor was loaded from the petitioner's shop on 30.8.2017. Statements of Head Constable Rajendra Yadav, Constable Santosh Dixit, Raghvendra Singh, Yogendra Gurjar, Ashutosh Tiwari, Vinod Kumar Chakravarti and Amar Pratap Singh also recorded, who were present at the time of incident and are witnesses of seizure. Hari Prakash is the previous owner of Maruti Van, who stated the fact that he sold out the aforesaid Maruti Van to Bhanu Pateria. Ravi Yadav and Amjad Khan are the witnesses of aforesaid sell transaction. Rehman Khan is also a witness, who said in his statement that the CDR of mobile phone was prepared by him for showing the connection of accused with the petitioner.
59. Therefore, it appears that sufficient evidence is available against the present petitioner to proceed in the case. The argument of the petitioner is not correct that there is no any evidence against him and he has been made accused only upon the basis of memorandum of co- accused. The statement of Suresh Rai supported the fact that the petitioner loaded the aforesaid liquor in the vehicle of the co-accused.
10. In the column "Grounds" of petition, it is also mentioned in Para (E) that in the absence of any report or complaint of Collector or District Excise Officer, no offence/case can be registered against the present petitioner and such type of complaint or report should be filed within a period of 6 months from the date of incident. But, in this case there is no compliance of the aforesaid mandatory provision. In Para (J) it is again mentioned that the prosecution has totally failed to comply the mandatory provision of section 61 of M.P.Excise Act, therefore, the impugned registration of FIR and its entire criminal proceedings are liable to be quashed.
11. The counsel for petitioner also draws attention of this Court towards the order dated 23.11.2016 passed in M.Cr.C.No.11837/2016 (Gajendra Singh Bhadoria Vs.State of M.P.), order dated 17.1.2017 passed in M.Cr.C.No.5778/2013 (Rajendra Singh & Another Vs. State of M.P. & Another), order dated 5.5.2017 passed in M.Cr.C.No.4646/2017 (Girish Bhatnagar Vs. State of M.P.), and order dated 4.5.2019 passed in M.Cr.C.No.50545/2018 (Sourabh Rai Vs. State of M.P.).
12. The counsel for State strongly opposed the aforesaid contention. It is submitted by the State that the aforesaid requirement is not related to the registration of offence.
13. Section 61 of the M.P. Excise Act, provides :-
"[61.Limitation of prosecutions.-[(1) No court shall take 6 cognizance of an offence punishable,-
(a) under [Section 34 for contravention of any condition of a license, 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 any 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.]"
14. Upon the perusal of the aforesaid provision, it is clear that the cognizance cannot be taken by the Court without fulfilling the requirement of section 61 of the Act. No any restriction is upon registration of crime or FIR. The position of the present petitioner is different from the petitioner of other cases cited by the counsel for petitioner, as above.
15. In this case, the petitioner is an absconded accused. Challan has been filed only against 2 accused. The name of petitioner is mentioned as "absconded accused" under section 299 of CrPC. When an accused shows as an absconded accused, then the police is free to arrest him and thereafter, the police may collect further evidence and file the supplementary challan or the additional evidence, as per section 173(8) of CrPC. Therefore, it cannot be said that the cognizance has been taken against the present petitioner. The Court took the cognizance only against other two co-accused. The requirement of section 61 may be fulfilled after the arrest of the present petitioner. The police/Excise Department may submit all papers to the competent authority as required under section 61 of the Act and thereafter the further proceedings may 7 be initiated by filing the supplementary chargesheet or the additional evidence against the accused.
16. Therefore, in view of the aforesaid it appears that the petition having no any force, hence dismissed.
(B.K.SHRIVASTAVA) JUDGE TG/-
Digitally signed by TRUPTI GUNJAL Date: 2020.02.08 13:07:41 +05'30'