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2017 Supreme(Bom) 1995
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE, MANGESH S. PATIL, JJ.
Balasaheb S/o Mahadeo Lohar & Ors. - Applicants
Versus
The State of Maharashtra & Ors. - Respondents
CRIMINAL APPLICATION NO. 5449 OF 2017
Decided On : 15-12-2017
For the Applicants :Mr. V. D. Sapkal, Advocate for the Applicants.
For the Respondents: Mr. D.R. Kale, A.P.P.
The main legal point established is that the State Government has distinct powers under Section 104 of the Maharashtra Prohibition Act, 1949, to receive a sum of money in different circumstances, and the court's decision was based on the interpretation of these powers.
Headnote:
Section 482 - Quashing of FIR - Maharashtra Prohibition Act, 1949, Section 65(a), (e) and (d), 72, 77(b), 79, 81, 82, 83, 90 and 108 - Summary of Acts and Sections
Fact of the Case:
The applicants sought to quash an FIR registered under various sections of the Maharashtra Prohibition Act, 1949, related to the interception of a tanker carrying rectified spirit and subsequent allegations against the applicants and their company.
Finding of the Court:
The court found that the direction to continue the prosecution was valid as the amount imposed was in lieu of cancellation of the distillery license and not by way of composition for the offence, as per the provisions of Section 104 of the Act.
Issues: The main issue was the interpretation of Section 104 of the Maharashtra Prohibition Act, 1949, and whether the amount imposed was in lieu of composition for the offence or cancellation of the license.
Ratio Decidendi: The court held that the State Government has two distinct powers under Section 104: to receive a sum of money instead of cancelling or suspending the license, and to receive a sum of money by way of composition for the offence. The court concluded that the amount imposed was in lieu of cancellation of the license, not by way of composition for the offence.
Final Decision: The application to quash the FIR was rejected, and the court discharged the rule.
Mangesh S. Patil, J.
1. Rule. Rule is made returnable forthwith. With the consent of the parties, matter is heard finally.
2. This is an application under Section 482 of the Code of Criminal Procedure with following prayers in clause 'B' and clause 'C'.
“(B) Quash & set aside the Clause3 of the Hon'ble Minister for State Excise, Maharashtra State, Mantralaya, Mumbai dated 18/09/2017 in File No. RVN.1116/RA-256/SE-3 and for that purpose issue necessary orders.
(C) Quash and set aside the F.I.R./Crime No.333/2016, registered with Flying Squad of Prohibition and Excise Department, Mumabi, on 06.09.2016, for the offences punishable U/secs. 65 (a) (e), 81, 83, 90 and 108 of the Maharashtra Prohibition Act, 1949, to the extent of the applicants and for that purpose issue necessary orders.”
3. According to the applicants the applicant no. 1 is the Distillery Manager whereas the applicant no. 2 is the Managing Director of Gangakhed Sugar and Energy Ltd. which is a private Sugar Factory. The Flying Squad of the Prohibition and Excise Department, Mumbai intercepted a Tanker bearing registration No. MH-04-DS-9808 carrying 23,000 liters of rectified spirit at Mitsangvi Chauphuli, Ta. Pathardi, Dist. Ahmednagar on National Highway No. 222. When the driver and the Cleaner on the Tanker were unable to produce any permit for transportation of spirit, the Flying Squad took them to Pathardi Police Station and F.I.R. bearing Crime No. 333/2016 was registered on 06/9/2016 for the offences punishable under Section 65 (a) (e), 81, 83, 90 and 108 of the Maharashtra Prohibition Act, 1949 (hereinafter referred to as the Act). The applicant no. 1 was also shown as accused no. 5 in the Remand Report which was submitted before the Magistrate on 09/09/2016. Simultaneously, the licence granted in favour of Gangakhed Sugar and Energy Ltd., Gangakhed was also calcelled under Section 54 (1) (c) of the Act.
4. It is further averred by the applicants that the State Government has compounded the matter under Section 137 of the Act and has imposed fine of Rs. 5,00,000/-. The order was passed by the Minister for State Excise, Maharashtra State under Section 104 of the Act in File No. RVN.1116/RA-256/SE-3 (Exhibit'-C'). However while passing the order, inspite of having imposed the fine by invoking powers under Section 104 of the Act, by the impugned direction in clause 3 of the order the prosecution was directed to continue. Hence this application with aforementioned prayers.
5. According to the learned Advocate for the applicants, clause 3 of the impugned order is contrary to the provisions of Section 104 (2) of the Act. On payment of the fine amount of Rs. 5,00,000/- as compounding charges, the persons accused of the offences are entitled to be set at liberty and the property seized should be released. Such composition results in acquittal and the person cannot be proceeded again further. Therefore, in view of the specific provisions contained in Section 104 of the Act, the impugned F.I.R. deserves to be quashed and set aside.
6. One Mr. Prasad Bhalchandra Sasturkar Inspector, State Excise, Flying Squad, Maharashtra State, Mumbai has submitted an affidavit in reply on behalf of respondent No.1-State. He has admitted about the interception of the Tanker and registration of the crime. He has contended that during the course of investigation it was transpired that the spirit was filled in the tanker at M/s. Gangakhed Sugar and Energy Ltd., Vijaynagar, Makhani, Tq. Gangakhed, Dist. Parbhani. The driver also disclosed that the applicants had called him and the spirit was filled in the Tanker at their instance. He also disclosed that he had handed over the cash worth Rs. 15,00,000/- to the applicants which was given to him by one Mr. Pravin @ Dada Wani of Dhule for purchasing the spirit. He has then stated that considering severity of the case senior officer of the rank of Superintendent had to inspect the factory and it was found that there are discrepancies in the
