ORDER

1. The present petition has been preferred by the petitioners under section 482 of the Code of Criminal Procedure, 1973 seeking quashment of FIR dated 6.5.2023 registered at Crime No.247/2023 at Police Station Thatipur, District Gwalior for the offence under sections 34(2) of M.P. Excise Act, 1915 read with section 109 of IPC.

2. Precisely stated facts of the case are that on 6.5.2023, respondent No.1 lodged an FIR that during flag march, an information was received by the Police Station that some persons are illegally selling liquor from the shop which is otherwise closed. It is alleged that certain officers of respondent No.1 went to the spot and found that petitioner No.2 was selling liquor from the shop alleged to be closed. When police directed petitioner No.2 to produce licence, it was informed by petitioner No.2 that there is no licence for the alleged shop, then police seized 27 boxes of Masala Country liquor and 36 boxes of plan country liquor along with cash of Rs.25,100/-. On interrogation, petitioner No.2 referred the name of petitioner No.1 from him he procured the liquor and therefore, petitioner No.1 was also arrayed as accused in the case purportedly under section 109 of IPC. Thereafter, investigation carried out and charge-sheet has been filed and therefore, petitioners are before this Court.

3. It is the submission of learned counsel for the petitioners that petitioner No.1 is licence holder from the State Government (FCL-1), therefore, petitioners are having absolute right to sale the country made liquor and foreign liquor from the disputed premises. In fact the premises which was raided by respondent No.1 was the premises earmarked under licence for sale of liquor. Petitioner No.1 is having valid licence for country made liquor and foreign liquor for 2023-24 for composite shop situate at Kumharpura, Thatipur District Gwalior. Copy of the licence annexed with the petition as Annexure P/2 indicates such fact. When petitioner No.1 successfully paid revenue to the Government and for last 30 years liquor shop is being run, then approach of authority to make raid over the premises which is licenced one, appeared to be misplaced and contrary to law. Even otherwise, as per section 61 of the M.P. Excise Act, Investigating Officer has lodged the FIR which is not permissible. For this purpose, complaint needed to be filed before the concerned Court of law.

4. It is further submitted that petitioner No.1 is arrayed on the basis of memo of co-accused prepared under section 27 of the Evidence Act and no recovery in pursuance thereof has been made from the possession of petitioner No.1. Liquor has been seized only from the possession of petitioner No.2. He relied upon the judgment of this Court in the case of Gajendra Singh Bhadoria v. State of M.P., 2017(3) JLJ 217 =2017 (1) MPLJ (Cri) 623. Said judgment has been followed by the Coordinate in the case of Girish Bhatnagar v. State of M.P. 2017 (3) MPLJ (Cri) 263. He also relied upon the case of Santram and others v. State of M.P. and others, 2016 (3) JLJ 83.

5. Learned counsel for the respondents/State opposed the submissions and submitted that petitioner No.2 was selling liquorw ithout permit and therefore, he has been arrayed as accused and on the basis of his memo under section 27 of the Evidence Act, petitioner No.1 was arrayed as accused. They were not selling the liquor from the shop which is earmarked for sale under the licence. He prayed for dismissal of this petition.

6. Heard learned counsel for the parties at length and perused the documents appended thereto.

7. In the case in hand petitioners are taking exception to the FIR registered at crime No.247/2023 and seeking the relief of quashing the said FIR registered at crime No.247/2023 at Police Station Thatipur District Gwalior for offence under section 34(2) of Excise Act and section 109 of IPC.

8. Present petitioners placed on record copy of the licence granted to petitioner No.1 from 1.4.2023 till 31.