Punjab-Haryana High Court
Raka Ghira vs Union Territory Chandigarh on 31 July, 2017
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
CRM-M-18837-2017 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-18837-2017 (O&M)
Date of decision: July 31, 2017.
Raka Ghira
... Petitioner
v.
U.T. Chandigarh
... Respondent
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
Present: Ms. Isha Goyal, Advocate for the petitioner(s).
Ms. Ashima Mor, Additional PP for UT Chandigarh.
A.B. Chaudhari, J.
In the present petition, the petitioner has put to challenge the
proceedings arising out of case FIR No.210 dated 24.7.2011, under Section
61/1/14 of the Punjab Excise Act (as amended and as applicable in UT
Chandigarh), registered at Police Station Sector 11, Chandigarh and the
consequential proceedings including charges framed against the petitioner.
In support of the petition, Learned Counsel for the petitioner
submitted that a pure question of law is involved in the present petition and
if the question is answered in favour of the petitioner, the proceedings in
question would amount to abuse of process of law and consequently the
power under Section 482 Cr.P.C. will have to be exercised. According to
the Learned Counsel for the petitioner, even the pure question of law that is
being raised in the present petition is no more res integra and has been
decided by this Court at least in two decisions. She cited the two decisions
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which this Court rendered as under:-
(i) Jarnail Singh and others v/s State of Punjab
2008(3) RCR (Criminal) 749
(ii) Kamaljit Singh v/s State of Punjab and others
2010(2) RCR (Criminal) 331
Learned Counsel for the petitioner submitted that perusal of the
FIR itself shows that the alleged offence took place on 24.7.2011 inasmuch
as the raid was conducted at the residential house of the petitioner wherein
there are other members of the family having liquor licences in their favour
and some bottles of IMF liquor were seized from the house. The crucial
question, according to Learned Counsel for the petitioner, is that it has been
categorically held that under the amended provisions of the Act which are in
terms applicable to the UT Chandigarh, the police (CBI) does not have a
power even to register FIR much less to prosecute any person. The reason,
according to her, is that the power has been given to the Excise Officer in
the cases where only liquor is involved. In other words, according to her, if
there is an intoxicant other than liquor that is seized from the accused, then
the police has got the power to register such offence. According to the
Learned Counsel for the petitioner, however, in the instant case, even
according to the prosecution IMFL bottles were seized from the house of the
petitioner and not any intoxicant. There is no allegation about the
intoxicant other than liquor found in the raid. The offence allegedly took
place after the amendment to the Act. Learned Counsel for the petitioner,
therefore, submitted that this being a matter of jurisdictional issue and
absence of authority in the police (CBI) to launch prosecution, the
proceedings will have to be quashed as held by this court in the two
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decisions cited supra.
Per contra, learned counsel for UT Chandigarh opposed the
petition and submitted that there is no need to interfere at this stage as the
trial is on and, therefore, prayed for dismissal of the petition.
I have carefully considered the submissions made by learned
counsel for the rival parties.
It is not in dispute that the FIR relates to the year 2011 and the
trial is already on. In the ordinary course, this Court would not have
interfered in its inherent jurisdiction at such a stage. However, I find that
the question of law that has been raised in the present petition has already
been decided by this Court in the aforesaid two reported decisions. It is not
in dispute that the provisions of the amended Act are fully applicable to the
UT Chandigarh where the offence is alleged to have taken place. In that
view of the matter, it is seen that as per the ratio of the aforesaid two
decisions, the police authorities of UT/CBI which lodged the FIR and filed
the challan and is prosecuting the petitioner is sans any authority of law and
the authority clearly was with the Excise Officer provided by the amended
Act and not with the respondent police department.
Careful perusal of the above referred two decisions rendered by
this Court, in my respectful agreement, show that the prosecution in
question was launched in absence of authority in the respondent police
department and therefore, the same is null and void and without authority
of law.
I quote following paragraphs of the judgment in the case of
Kamaljit Singh (supra) which read thus:-
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"6. Learned counsel for the petitioner vehemently contended that
in view of section 61(A) of the Punjab Excise Act, 1914 (in short, the
Act),possession of liquor was no longer offence and only
penalty could be imposed for the same. There is considerable
merit in the contention. Section 61(A) was inserted in the Act vide
Amendment Act No. 32 of 2006 notified on 25.8.2006 and so the
said section was operative when the impugned FIR was
registered. Section 61(A) of the Act is reproduced herein:-
"61-A. Penalty for offences not triable by a court.- (1) Whosoever,
in contravention of any provision of this Act, the rules framed
thereunder, any notification issued or any order made or any
license, permit or pass granted under this Act, imports, exports,
transports, or possesses any liquor, shall alongwith liquor and
means of transport, except the passenger buses, owned by the
Central Government or the State Government or any of their
undertaking, be detained by an Excise Officer, who shall make a
report to the Assistant Excise and Taxation Commissioner, in-charge
of the district and to the Deputy Excise and Taxation
Commissioner, in-charge of the Division, within a period of twenty-
four hours of such detention. The Excise Officer shall forward such
liquor and the means of transport along with the necessary
documents to the Deputy Excise and Taxation Commissioner in-
charge of the District. (2) On the receipt of the report referred to in
sub-section (1), the Deputy Excise and Taxation Commissioner in-
charge of the Division, shall record the statements of the
offender and the officers, concerned with the case, and release the
offender. (3) The Assistant Excise and Taxation Commissioner in-
charge of the district, may impose the following penalties after
providing the offender a reasonable opportunity of being heard in
case a liquor detained is licit, on which the excise duty and other
levies have been paid in the State of Punjab, namely :-
(a) rupees five thousand in case of detection of such liquor upto
two cases i.e. 18 bulk litres; and
(b) rupees ten thousand in case of detection of such liquor
exceeding more than two cases i.e. 18 bulk litres.
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(4) The Assistant Excise and Taxation Commissioner in-charge of the
district, may confiscate the illicit liquor and may also impose the
following penalties after providing the offender a reasonable
opportunity of being heard in case the liquor detained is illicit,
on which the excise duty and other levies have not been paid in the
State of Punjab, namely:-
(a) rupees twenty five thousand in case of detection of such liquor up
to five cases i.e. 45 bulk litres;
(b) rupees fifty thousand in case of detection of such liquor
exceeding five cases i.e. 45 bulk litres, but not exceeding fifty
cases i.e. 450 bulk litres; and
(c) rupees one lac in case of detection of such liquor exceeding
fifty cases i.e. 450 bulk litres.
(5) If the penalty referred to in sub-section (4), is not paid within a
period of one week from the date of the order, then the Deputy
Excise and Taxation Commissioner in-charge of the Division
shall pass a speaking order of confiscation of the means of
transport and the liquor after giving an opportunity of being heard
to the offender and the owner of the means of transport. In
case the owners of the liquor and the means of transport are not
available, then the order for confiscation may be passed by the
Deputy Excise and Taxation Commissioner incharge of the Division
by affording an opportunity of being heard to the offender, who
has been caught with the goods. The confiscated liquor shall
thereafter, be destroyed under the supervision of the Deputy Excise
and Taxation Commissioner in-charge of the Division and an
authenticated copy of the said order shall be supplied to the affected
person free of cost.
(6) The Deputy Excise and Taxation Commissioner in-charge of
the Division, shall put to auction the confiscated means of transport
with a period of thirty days from the date of the order of confiscation
passed under sub-section (5). The amount received from auction
after deducting the expenditure incurred on it, shall be adjusted
towards the payment of penalty by the owner. The unrecovered
amount of penalty, if any, shall be recoverable as arrears of land
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revenue."
"7. Perusal of the aforesaid provision reveals that if a person is
found in possession of liquor then penalty can be imposed on
him in accordance with the provisions contained in section 61
(A) of the Act."
"9. Perusal of the aforesaid provision reveals that possession of
liquor is not punishable under this provision. It is not the allegation
of the prosecution that the petitioner had sold any intoxicant.
Consequently, the petitioner is not covered by clause (a) of section
61(2) of the Act. The petitioner was merely found in possession of
liquor which is categorically covered by section 61(A)(1) of the Act."
The scheme of the amendment which has been elaborated by
another judgment in the case of Jarnail Singh (supra) also shows that the
amendment was inserted by Amendment Act No.10 of 2003. That means,
the amendment was applied from 2003 whereas offence in question is of
2011. By the said amendment, the distinction was made between the
offences in respect of the intoxicants other than the liquor which would be
triable by a court of law while the offence under the Excise Act would be
adjudicated/decided by the Excise Department and its officers. That is what
has been held in para 8 of the said judgment, which I quote hereunder:-
"8. After amendment carried out vide Punjab Act No.10 of 2003
whereby Section 61 of the 1914 Act was amended a new Section 61-A
was added, the scheme of the 1914 Act had undergone a change.
After the amendment, a distinction was made with regard to the
penalties for offences triable by a Court and penalties for offences
not triable by a Court. In terms of Section 61(1)(aa) with effect from
2.5.2003, any import, export, transport or possession of any
intoxicant other than liquor in contravention of any provision of the
1914 Act, rules, notification or order made thereunder or of any
licence, permit or pass granted under the Act was punishable with
imprisonment for a term as prescribed. Whereas the newly added
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Section 61-A after the amendment carried out vide Punjab Act No.10
of 2003, with effect from 2.5.2003, provided that whoever in
contravention of any provisions of the 1914 Act or rules or
notification or order or any licence, permit or pass granted under
the Act inter alia imports, exports, transports or possess any liquor,
shall along with liquor and means of transport be detained by an
Excise Officer. The procedure to be followed after its detention by
the Excise Officer has further been provided in the Section."
In view of the above legal position cited by this Court, this
Court will have to follow the said reported judgments. In so far as the
question about commencement of trial is concerned, I find that since it has
been held that the filing of FIR/challan/charge against the petitioner itself is
without any authority of law and void ab initio, the criminal case trial must
be held to be the abuse of process of law. The following maxims would
aptly apply:-
"Debile fundamentum fallit onus", meaning thereby that when
the foundation falls, every thing falls; and "sublato
fundamento cadit opus"; meaning thereby, in case a foundation
is removed, the superstructure falls."
It is the duty of this Court to exercise inherent power under
Section 482 Cr.P.C. in such an eventuality.
The delay in making the challenge to the prosecution at a late
stage would not come in the way of the petitioner as the question is no more
res integra and has been consistently decided by this Court about non-
maintainability of the prosecution. The continuance of such a trial would be
an exercise in futility. In the result, the petition must succeed. Hence, I
make the following order:-
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ORDER
(i)CRM-M-18837-2017 is allowed;
(ii) Rule is made absolute in terms of the prayer clause, which reads thus:-
"Petition under Section 482 Cr.P.C. and all other enabling provisions in this regard in furtherance and continuation of earlier petition bearing CRM-M-17667-2017 pending in this Hon'ble Court for 1.6.2017, humbly praying that this Hon'ble Court may be pleased to quash FIR No.210 dated 24.7.2011, registered under Section 61/1/14 of the Punjab Excise Act, 1914 (as applicable in Union Territory Chandigarh) (hereinafter referred to as Excise Act) at Police Station Sector 11, Chandigarh and all consequential proceedings arising therefrom including the Final Report/Challan under Section 173 Cr.P.C. dated 12.3.2012 (Annexure P-3); order taking cognizance dated 14.12.2012 (Annexure P-4) as well as order framing charge dated 25.9.2013 and charge sheet so framed dated 12.5.2014 (Annexure P-6) as the continuation of the impugned proceedings would tantamount to a gross abuse of the process of law and would result in a grave miscarriage of justice."
July 31, 2017. [ A.B. Chaudhari ] kadyan Judge Whether speaking/reasoned Yes/No Whether reportable Yes/No 8 of 8 ::: Downloaded on - 05-08-2017 17:59:47 :::