1. Heard finally.

2. This petition under section 482 of CrPC has been filed for quashing the FIR in Crime No.164/2016 registered by Police Station Dimni, District Morena under section 34 of M.P. Excise Act as well as the charge sheet and cognizance taken by the Magistrate.

3. The brief facts of the case are that on 31.7.2016, an information was received that in village Navali, Bhairo Singh Tomar is selling illegal country made liquor. On the information of the informant, when the police team reached at the spot, one person was found sitting on the platform. On interrogation, he disclosed his name as Bhairo Singh Son of Kaptan Singh Tomar, resident of Navali. On search of the cartoon, 22 quarters of illegal country made liquor were found. On asking about the licence, no licence could be produced. The accused was arrested and FIR was registered against him.

4. It is submitted by the counsel for the applicant that the Court could not have taken cognizance in view of section 61 of Excise Act and also there is no admissible evidence against the applicant.

5. Per contra, it is submitted by the counsel for the State that charge sheet has been filed, therefore, the defence of the applicant may not be considered. It is further submitted that arrest warrants have been issued by the Court and the applicant is absconding, therefore, this petition under section 482 of CrPC is not maintainable.

6. In reply, it is submitted by the counsel for the applicant that when the Court could not have taken cognizance of the matter, then all the proceedings taken by the Magistrate are nullity and without jurisdiction, therefore, the petition is maintainable.

7. Heard the learned counsel for the parties.

8. The charge sheet has been filed against the applicant on the basis of statement made by the coaccused under section 27 of the Evidence Act. The case has been registered on the complaint of a Police Constable.

9. It is contended by the counsel for the applicant that in view of the newly incorporated section 61 of the Excise Act, the Court can take cognizance only on the complaint or report of the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorized by the Collector in this behalf. However, the Court has taken cognizance of the offence on the basis of charge sheet which is bad in the light of section 61 of Excise Act.

Newly amended section 61 of the Act reads as under :-

“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.”

Complaint has been defined under section 2 (d) of CrPC which reads as under :-

“2(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.”

10. It is clear that if a person is found to be flouting the conditions of licence and if he is required to be prosecuted then the complaint has to be filed by the Collector or an Officer authorised by the Collector as contemplated under section 61 of the Act. The Coordinate Bench of this Court by order dated 23.11.2016 passed in the case of Gajendra Singh Bhadoria v.