The court emphasized the importance of substantial compliance with statutory provisions and highlighted the need for determining factual matters in the trial court.

ORDER : – The present petition is preferred under section 482 of Code of Criminal Procedure, 1973 for quashment of FIR/charge-sheet preferred against the petitioner for alleged offence under section 34(2) of Madhya Pradesh Excise Act 1915 (hereinafter referred to as “the Act”).

2. It is the submission of learned counsel for the petitioner that on 20-2-2020 premises situate in the house of Sankalp Kushwah was raided by the officers of Excise Department wherein Prashant Shivhare was found with 815 cartons of liquor and case under section 34(2) of the Act was registered. It was the statement of Prashant Shivhare that Nikunj Shivhare (present petitioner) is his owner and is having licence and he is only manager of Nikunj Shivhare. It is further stated that no permit was obtained from the authorities, however, on 24-2-2020 a proved certificate of employee has been seized from the office of Assistant Excise Officer. After registration of offence, charge-sheet has been filed, therefore, petitioner has preferred this petition taking exception to the charge-sheet and consequential proceedings.

3. It is the submission of learned counsel for the petitioner that present petitioner is FL1 licencee and operates foreign liquor shop at C. P. Colony, Morar, Gwalior. Licence fee has been deposited by the petitioner and delivery challan of the liquor shows that department has seized duty paid liquor. Learned counsel for the petitioner stressed over non-compliance of provisions as contained under section 61 of the Act to submit that unless the sanction is taken from District Magistrate (Collector) or any other officer authorized by him, no case can be registered or prosecuted against the petitioner and while relying upon the judgment in the case of Dipak Babaria vs. State of Gujarat, (2014) 3 SCC 502 submits that non-compliance of section 61 of the Act is fatal. He also relied upon the judgments of Gajendra Singh Bhadoria vs. State of M. P., 2017(1) M.P.L.J. (Cri.) 623, Hotam Shivhare vs. State of Madhya Pradesh passed in M. Cr. C. No. 8341/2017 on 17-8-2017 and order dated 26-2-2019 passed in M. Cr. C. No. 52680/2018, Nand Kishore Sharma vs. State of M. P.) (Indore Bench). 

4. Learned counsel for the respondents/State opposed the prayer and submitted that charge-sheet has been filed by the officers of Excise Department, therefore, no plea is available so far as non-compliance of section 61 of the Act is concerned. Petitioner is at liberty to appear in trial and resist the prosecution on merits. He prayed for dismissal of petition.

5. Heard learned counsel for the parties and perused the documents appended thereto.

6. This is a case where prime objection taken by the petitioner is in respect of section 61 of the Act and submits that non-compliance of section 61 of the Act vitiates the proceedings. Section 61 of the Act is reproduced for ready reference:

“61. Limitation of prosecution. – (1) No Court shall take cognizance of an offence punishable – (a) under section 34 for the contravention of any condition of a licence, permit or pass granted under this Act, section 37, section 38, section 38-A, section 39, except on a 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; (b) under any other section of this Act other than section 49 except on the complaint or report of an Excise Officer or Police Officer. (2) Except with the special sanction of the State Government no Judicial Magistrate shall take cognizance of any offence punishable under this Act, or any rule or order thereunder, unless the prosecution is instituted within six months from the date on which the offence is alleged to have been committed.”

7. Perusal of the same makes it clear that Collector or an Excise Officer not below the rank of District Excise Officer as may be authorized by the Collector in this behalf has been prescribed. Perusal of charge-sheet indicates that charge-sh