Point of Law: Presence of entire quantity of liquor as case property during trial will not be required.

JUDGMENT :

Satyen Vaidya, J.

Heard.

By way of this petition, petitioner has assailed the order dated 18.11.2022 passed by learned Judicial Magistrate 1st Class, Court No.2, Rohru, District Shimla, H.P. in Case No. 165-4 of 2022, whereby the application of the petitioner under Section 457 of the Cr.P.C. for release of the case property has been rejected.

2. Brief facts of the case are that on 28.10.2022, a case under Section 39(1)(a) of the Himachal Pradesh Excise Act was registered at Police Station Rohru, District Shimla, vide FIR No. 192 of 2022. It was alleged that the police had intercepted a vehicle (Mahindra Pick up) bearing registration No. HP-10B-8698 on Adal road within the jurisdiction of Police Station Rohru. On checking the vehicle, a large number of boxes having liquor of different brands and beer were found being transported. The permits/passes carried by the driver of the vehicle were not found in terms of Himachal Pradesh Excise Act and Rules framed thereunder. It was found that the quantity of liquor being transported in the vehicle was in excess of the permits/passes. Further, the vehicle which was authorised to transport the liquor was different and lastly, huge quantity of liquor was being transported at the time when general elections were to be conducted. The entire quantity of liquor found in the vehicle was seized and taken into possession by the police.

3. Petitioner claims himself to be a liquor licencee. He preferred an application under Section 457 of the Cr.P.C. before the learned Judicial Magistrate 1st Class, Court No.2, Rohru, District Shimla, H.P. seeking release of the liquor on the ground that the liquor was being transported under valid permit/pass. The vehicle originally carrying the liquor from Shimla had broken down on way, therefore, the consignment was shifted to another vehicle.

4. Learned Judicial Magistrate 1st Class, Court No.2, Rohru, dismissed the application of the petitioner by holding as under:-

“4. Perusal of the file and documents shows that the permit was issued to Shakti Singh and quantity was mentioned in it. Considering the fact that vehicle along with liquor was seized by the police near Arhal road which route is not shown in the permit, extract 07 boxes which were found without permit, no information of mechanical fault of truck and transfer of liquor boxes to other vehicle was given to local police and Excise and Taxation department and considering the fact that applicant and truck driver and truck owner has not participated in the investigation being conducted by police. Perusal of the record shown that some liquor was found to have valid permit and some liquor boxes were found without any permit, which in my opinion raises suspicion qua illegal transportation of the liquor in time of H.P. Vidhan Sabha election as it was seized by police on the road which was not shown in the permit. For the reasons stated herein above, in my opinion, the present application deserves to be dismissed. The application stands disposed of. After due completion it be tagged with the relevant FIR.”

5. Aggrieved against the dismissal of his application petitioner has approached this Court with a prayer to set aside the impugned order and to release the entire liquor, as was permitted to be transported for him, in his favour.

6. During the pendency of the petition, directions were issued to respondent/State to complete the investigation and file the final report under Section 173 of the Cr.P.C. Investigating agency after completion of investigation has now submitted the final report under Section 173 of the Cr.P.C. and copy of such report has been placed on record.

7. Perusal of report under Section 173 of the Cr.P.C. submitted by respondent/State reveals that except for 7 boxes of liquor (two boxes of IMFL “All Season”, one box containing ½ bottles of brand “All Season”, two boxes containing bottles of Sterling brand, One box containing bottles of Episode brand and One box containing bottles Old Monk