Point of Law: It is trial which determines fate of an accused.

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this petition, filed under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for the following reliefs:

“It is, therefore, most respectfully prayed that this petition may kindly be allowed and FIR No. 5/2020 dated 8.6.2020 registered at Police Station SV & ACB Una under Section 39 (1) (a) and 39 (2) of H.P. Excise Act kindly be quashed as against the petitioner along with all consequential proceedings pending in the Court of learned JMFC-III, Una arising out of aforesaid FIR in the interest of justice and fair play.”

2. Brief facts necessary for the adjudication of the present petition are that an FIR was registered, copy whereof is appended with the petition as Annexure P1, at the behest of Sub Inspector Jasbeer Chand, State Vigilance and Anti Corruption Bureau, at Police Station State Vigilance, Una, dated 08.06.2020, under Section 39 (1) (a) and 39 (2) of the H.P. Excise Act, on the facts that an information stood received by the complainant that M/s A One Enterprises and M/s MARS Bottlers were illegally transporting the liquor bottles of country brand i.e. ‘Himachali Santra’ from M/s MARS Bottlers to A One Enterprises from the bottling facility of M/s MARS Bottlers to A One Enterprises without them possessing requisite licence for transportation of liquor, as they were transporting the bottles on the authority of one permit only again and again and were further transporting the liquor without hologram. On the basis of said FIR, two teams of the officers and officials were constituted and the premises of both M/s A One Enterprises and M/s MARS Bottlers were searched on the same day, i.e. 08.06.2020. As per the prosecution, in the course of search, though it was not found that the accused were involved in the illegal transport of liquor without valid licence, but it was found that certain Nips and bottles in possession of both the parties were without requisite holograms. Incidently, as the Court stands informed at the Bar and which fact has not been disputed by the respondents, only M/s MARS Bottlers were made accused in the FIR, whereas A One Enterprises was not made an accused. The petitioner at the relevant time happened to be appointed as Excise Inspector to look after the affairs of M/s MARS Bottlers. The matter was got investigated and in terms of the final report which has been submitted by the Investigating Officer, it was mentioned therein that the petitioner had violated Notification No. 7-362/2009-EXN-17270-89, dated 23.05.2012 and thus, he is guilty of having committed an offence punishable under Section 39 (2) of the H.P. Excise Act.

3. Learned Senior Counsel appearing for the petitioner has argued that the offence alleged to have been committed by the petitioner is nothing, but the wishful thinking of the Investigating Officer, for the reason that neither there is ex facie any violation of the Notification being referred to in the report by the Investigating Officer nor the petitioner has violated the provisions of Section 39 (1) (a) and 39 (2) of the H.P. Excise Act. Learned Senior Counsel has referred to the Notification which is appended with the response filed by the State and argued that in terms of said Notification, the amendments which have been incorporated in Rule 38 of the H.P. Excise Rules are directly relatable to the licensee and no clause of this Notification in any manner directly or indirectly is relatable to an officer like the petitioner, who stood appointed to look after the affairs of the licensee. Learned Senior Counsel further submitted that in terms of Rule 7 of the H.P. Excise Act, the Notification which is relatable to the petitioner, the same calls upon him to ensure depiction of batch number and hologram in the copies of permit/passes at the time of issuance thereof and before the removal of country liquor, an Indian made foreign spirit from the licensed premises and in the present case it is not the case of the prosecuti