Initially, instant petition was filed under the banner of Cr. Miscellaneous praying therein for quashing of FIR as such subsequently vide order dated 7.12.2006 has been converted into Cr. Writ.

2. Petitioner Kamlakant Sinha has prayed for quashing of FIR of Laheri (Biharsharif) P.S. Case No. 60 of 2006 registered under Sections 420, 467, 379 of the IPC and 47 of the Excise Act.

3. Chaudhary Anant Narayan, Executive Magistrate, Nalanda, as directed by the District Magistrate, Nalanda vide Memo No. 1614/Confidential dated 19.4.2006 launched prosecution against the petitioner, filed written report disclosing therein that petitioner was granted license for wholesale dealership of wine under Sale and Trade Scheme as per Letter No. 962 dated 11.3.2006 by the District Magistrate, Nalanda. During continuance of license, complaint were received regarding malfunctioning over which enquiry was conducted and after getting enquiry report, vide Memo No. 1145/Confidential dated 22.3.2006 license was cancelled side by side the Excise Superintendent, Nalanda was directed to take proper action in accordance with law wherein he failed and accordingly, the District Magistrate directed the complainant for launching of prosecution which he did.

4. Contention on behalf of the petitioner is that the launching of prosecution happens to be bad in law as well as on facts, hence is fit to be quashed.

5. Then, submitted that no illegality or irregularity was committed by the petitioner during continuance of him being a licensee under the Excise Act rather as per instruction given by the competent authority the previous stock of other licensees, which was not renewed subsequently was also tagged with him. Further submitted that with regard to shifting of shop premises, petitioner had already informed the competent authority. Therefore, no violation of any of the condition of the license has been made on his behalf. Then submitted that against the order issued by the District Magistrate vide Memo No. 1145/Confidential dated 22.3.2006 through which the license of the petitioner has been cancelled, petitioner has filed Revision Petition before the Board of Revenue bearing Case No. 64 of 2006 wherein vide order dated 6.7.2006, the aforesaid order has been set aside. As such, institution of the case in the background of above referred letter appears to be in contravention of the order of the Revisional Authority.

6. The State has filed counter affidavit as well as also raised submission refuting the points whatever been argued on behalf of petitioner. Then submitted that FIR cannot be quashed if the allegation makes out a prima facie case. Then submitted that there has been irregularity found during course of conduction of enquiry. So, prima facie, contravention of conditions of license attracting penal provision is there and in the aforesaid background, the prayer of the petitioner is fit to be rejected.

7. Not only this, it has further been submitted that true it is that the order of the District Magistrate has been set aside by the Board of Revenue however the matter was remitted to the District Magistrate to decide afresh as per direction given therein and by virtue of aforesaid order, the criminal' prosecution should not be quashed because prima facie material still survives. But, fairly submitted that since thereafter, the District Magistrate did not pass any order and the matter is pending since 2006.

8. After appreciating rival contention, it is evident that the order of the District Magistrate as communicated vide Memo No. 1145/Confidential dated 22.3.2006 by which license of the petitioner has been cancelled, has been set aside by the Board of Revenue under Revision No. 64 of 2006 dated 6.7.2006 and the matter has been remitted to the District Magistrate/Collector with a direction to look into this case in greater depth and find out suitable ways for enhancing the collection of excise duty. The relevant passage may be quoted as:-

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