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2017 Supreme(P&H) 2577
IN THE HIGH COURT OF PUNJAB AND HARYANA
A.B. CHAUDHARI, J.
RAKA GHIRA – Appellant
Vs.
U.T. CHANDIGARH – Respondent
CRM-M No. 18837 of 2017 (O&M)
Decided on : 31-07-2017
Advocate Appeared:
For the Appellant :Ms. Isha Goyal, Advocate
For the Respondent: Ms. Ashima Mor, Adv
The central legal point established is the absence of authority in the police department to prosecute under the amended provisions of the Punjab Excise Act, leading to the nullity of the prosecution.
Headnote:
Punjab Excise Act - Challenge to Proceedings - Section 61/1/14 - [Section 61/1/14] - The court discussed the applicability of the amended provisions of the Punjab Excise Act in UT Chandigarh and the authority of the police (CBI) to prosecute under the Act. The court referred to previous decisions and highlighted the jurisdictional issue, absence of authority in the police to launch prosecution, and the legal provisions under the amended Act.
Fact of the Case:
The petitioner challenged the proceedings arising from a case under Section 61/1/14 of the Punjab Excise Act, alleging that the police (CBI) lacked authority to prosecute under the amended provisions of the Act applicable in UT Chandigarh.
Finding of the Court:
The court found that the police authorities lacked the authority of law to prosecute under the amended Act, as per previous decisions and the legal provisions discussed.
Issues: Jurisdictional issue, authority of police to prosecute under the amended Act.
Ratio Decidendi: The court held that the prosecution was null and void due to the absence of authority in the police department to prosecute under the amended Act.
Final Decision: The petition was allowed, and the court quashed the FIR and all consequential proceedings, citing the abuse of process of law and grave miscarriage of justice.
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.
2. 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 which this Court rendered as under:-
(i) Jarnail Singh and others v. State of Punjab 2008(3) RCR (Criminal) 749
(ii) Kamaljit Singh v. State of Punjab and others 2010(2) RCR (Criminal) 331
3. 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 decisions cited supra.
4. 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.
5. I have carefully considered the submissions made by learned counsel for the rival parties.
6. 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.
7. Careful perusal of the above referred two decisions rendered by this Court, in my respectful
