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IN THE HIGH COURT OF MADHYA PRADESH
Anand Pathak, J.
Gajendra Singh Bhadoria v. State of M.P.
Miscellaneous Criminal Case No.11873 of 2016 (Gwalior);
Decided on 23.11.2016.
Held : If a person is found to be flouting the licence conditions and is required to be prosecuted then the private complaint has to be filed by the Collector or an officer authorised by the Collector as contemplated in section 61 of the Act.
M.P. Excise (Amended Act), 2014 has included section 34 into the ambit of section 61 of the Act. Thus, intention of legislature is clear wherein the offence coming under section 34 of the Act also are to be treated and prosecuted in a manner as provided under section 61 of the Act.
Considering the fact that petitioner is having a valid licence and right to sale the liquor, it cannot be assumed that petitioner has committed any offence under section 34 (or 42 of the Act) as there is no breach of any condition of licence, granted in favour of the petitioner, in the present set of facts. AIR 1976 SC 1947 and AIR 1992 SC 604 followed. 1990 JLJ 782, 1987(II) MPWN 54 and 1976 MPWN 232 referred to.
(2) Evidence Act, 1872 -- Ss.25 and 27 -- statement of co-accused under cannot be used to implicate petitioner by treating such statement as admissible piece of evidence. 2014(1) MPLJ (Cr) 575 and 2015(1) MPLJ (Cr) 337 referred to. [Para 15
¼1½ vkcdkjh vf/kfu;e] 1915 ¼e-iz-½ & /kkjk 34] 61 rFkk 42 ¼2014 esa ;Fkk la'kksf/kr½ & naM izfdz;k lafgrk] 1973 & /kkjk 2¼?k½ 4] 5 rFkk 482 & mica/kksa ds v/khu vijk/k & izFke bfryk fjiksVZ vfHk[kafMr djus gsrq ;kfpdk & dh iks"k.kh;rk & la'kksf/kr vf/kfu;e] 2014 ,oa vf/kfu;e] 2015 dh /kkjk 61 dh ifjf/k esa] /kkjk 34 Hkh 'kkfey gS & fo/kkf;dk dk vk'k; gS fd tgk¡ vijk/k vf/kfu;e] 1915 dh /kkjk 34 ds v/khu vkrk gS] ml rjg fujkd`r rFkk vfHk;ksftr fd;k x;k ekuk tk,xk tSlk /kkjk 61 ds v/khu micaf/kr gS & lafgrk] 1973 dh /kkjk 4 rFkk 5 dks /;ku esa j[krs gq, & /kkjk 61 dh 'kfDr rFkk izHkko vf/kd izHkko'kkyh gks tkrk gS D;ksafd fo'ks"k fof/k lkekU; fof/k ij vfHkHkkoh gksrh gS blfy,] vf/kfu;e] 1915 ,oa lafgrk] 1973 ds mica/kksa ij vfHkHkkoh gksxk & ;fn ,d O;fDr vuqKfIr dh 'krksZ dh voKk djrk gqvk ik;k tkrk gS rFkk vfHk;ksftr gksus gsrq visf{kr gS & rc dyDVj }kjk ;k mlds }kjk izkf/kd`r vf/kdkjh }kjk izkbosV ifjokn izLrqr fd;k tkuk gS & ;kph ds ikl fof/kekU; vuqKfIr rFkk efnjk fodz; djus ds fy, vf/kdkj gksus ls ;g ugha ekuk tk ldrk fd ;kph us mica/kksa ds v/khu dksbZ vijk/k dkfjr fd;k & vuqKfIr dh fdlh Hkh 'krZ dk mYya?ku ugha & ;kfpdk dk eatwj & izFke bfryk fjiksVZ vfHk[kafMrA vfHkfu/kkZfjr % ;fn ,d O;fDr vuqKfIr dh 'krksZ dh voKk djrk gqvk ik;k tkrk gS rFkk vfHk;ksftr gksus gsrq visf{kr gS rc dyDVj }kjk ;k mlds }kjk izkf/kd`r vf/kdkjh }kjk izkbosV ifjokn izLrqr fd;k tkuk gS tSlk fd vf/kfu;e dh /kkjk 61 esa vuq/;kr fd;k x;k gSA e-iz- vkcdkjh ¼la'kksf/kr vf/kfu;e½] 2014 ls /kkjk 34 dks vf/kfu;e dh /kkjk 61 dh ifjf/k esa 'kkfey djrk gSA bl izdkj] fo/kkf;dk dk vk'k; Li"V gS ftlesa vijk/k vf/kfu;e dh /kkjk 34 ds v/khu vkrk gS ml rjg ls Hkh fujkd`r rFkk vfHk;ksftr fd;k x;k ekuk tk,xk tSlk fd vf/kfu;e dh /kkjk 61 ds v/khu micaf/kr gSA bl rF; ij fopkj djrs gq, fd ;kph fof/kekU; vuqKfIr rFkk efnjk fodz; dk vf/kdkj j[krk gSA ;g ugha ekuk tk ldrk fd ;kph us /kkjk 34 ¼;k vf/kfu;e dk 42½ ds v/khu dksbZ vijk/k dkfjr fd;k gS] D;ksafd ;kph ds fgr esa eatwj fd, x, vuqKfIr dh fdlh Hkh 'krZ dk] orZeku rF;ksa esa] dksbZ mYya?ku ugha gSA , vkb vkj 1976 ,l lh 1947 rFkk , vkb vkj 1992 ,l lh 604 vuqlfjrA 1990 ts ,y ts 782] 1987 ¼2½ e-iz- ohDyh uksV~l 54 rFkk 1976 e-iz- ohDyh uksV~l 232 fufnZ"VA ¼2½ lk{; vf/kfu;e] 1872 & /kkjk 25 rFkk 27 & mica/k ds v/khu lg&vfHkqDr ds dFku dk] ,sls dFku dks xzg.k ;ksX; lk{; dk Hkkx ekurs gq, ;kph dks vkfyIr djus ds fy, mi;ksx ugha fd;k tk ldrkA 2014 ¼1½ ,e ih ,y ts ¼fdz-½ 575 rFkk 2015 ¼1½ ,e ih ,y ts ¼fdz-½ 337 fufnZ"VA ¼iSjk 15½
1. Heard finally, with consent.
2. Quashment of FIR registered vide Crime No.164/2016 for offence punishable under sections 34 and 42 of the M.P. Excise Act, 1915 registered at PS Daboh, District Bhind along with all consequential proceedings have been prayed by the petitioner by way of filing the instant petition under section 482 of CrPC.
3. As per the prosecution story; on 31.7.2016, Police Constable of PS Daboh while making surprise inspection at Tahsil Lahar got the clue about the sale of liquor without permission in the area. On search, he found one co-accused Arvind Kumar Tiwari in possession of 30 quarters of country made liquor, thus arrested him and while preparing the memo under section 27 of the Evidence Act seized the country made liquor from his possession. The co-accused has referred the name of present petitioner who happens to be a shop owner of the liquor and having licence to sale the liquor. He was arrested and brought to police station; wherein, all consequential proceedings have been followed. On the basis of statement of the co-accused, present petitioner has also been implicated and investigation is going on.
4. Learned counsel for the petitioner by filing this petition has raised three fold grounds. First and foremost ground he raised is in respect of bar under section 61 of the M.P. Excise Act, 1915 (for short “the Act”). According to him, section 61 of the Act has been amended with effect from 22.8.2014 and after that no Court can take cognizance of an offence punishable under section 34 of the Act for contravention of any condition of the licence, permit or pass, except complaint or report of the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorised by the Collector in this behalf. According to him, no authorization has been given by the Collector to any Excise Officer so as to investigate the matter against the petitioner. According to him, even if, the petitioner was selling the liquor through co-accused (although denied vehemently) even then it cannot be a breach of condition of licence and unless the Collector or on his authorization, any Excise Officer files a complaint (private complaint) or report (police report) then only the cognizance can be taken by the Magistrate. Here in the present case, when the case has not be instituted at the instance of the Collector or his authorised representative nor Report has been submitted by the Collector or his representative, no case is made out against the petitioner because if the charge sheet will be filed by the police authorities then same shall be hit by section 61 of the Act.
5. Another ground of contest is of implication of the petitioner on the basis of memo prepared under section 27 of the Evidence Act. According to counsel for the petitioner, statement made by the co-accused under section 27 of the Evidence Act cannot be read into evidence as per provisions as contained in section 25 of the Evidence Act. It can, at best, be taken into consideration for the recovery purpose only.
6. Another ground of contest for the petitioner is on the merit itself; wherein, he contended that he is a legal vendor and selling liquor on the strength of permit/licence duly given to him by the Excise Department, therefore, plain reading of FIR itself does not disclose any cause of action against the present petitioner.
7. On the other hand, learned counsel for the State on the basis of case diary and with the assistance of Additional District Excise Officedr Shri Sunil Bhatt opposed the prayer made by the petitioner by submitting that on the information received, the constable has rightly acted upon and the person who was selling the liquor has named the petitioner, as the person who has given him the liquor for sale, therefore, the present petitioner has rightly been implicated in the case. According to them, the FIR has rightly been registered against the petitioner on the basis of statement as made by the co-accused; w
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