ORDER

This petition under Section 482 of Cr.P.C. has been filed for quashment of FIR registered at Crime No.561/2022 at Police Station Indore Dehat under Section 34(2) of the M. P. Excise Act, 1915 (hereinafter referred as, 'Excise Act') and subsequent proceeding thereto.

2. The prosecution story in nutshell is that on 24/08/2022 an information on telephone was received that the Deepak @ Model resident of Bheel Colony, Musa Khedi in yellow colour T-shirt is selling illicit liquor in two sacks. On this a raid was conducted and the Deepak was found in possession of two sacks and on search total 350 quarters of plain country made liquor were found. Accordingly, a case was registered.

3. Learned counsel for the applicant submits that liquor has not been seized from the applicant. Applicant has only been arrested on the basis of memo given by the co-accused under Section 27 of the Evidence Act. No connecting evidence is available against him, therefore, prosecution against him is only misuse of process of law.

4. He has placed reliance on the order dated 07/02/2024 passed by co- ordinate Bench of this Court in M.Cr.C.No.5486/2024 (Balram S/o Bapulal Vs. The State of Madhya Pradesh), wherein the proceeding against the applicant in that case under Section 8/15 and 29 of the NDPS Act have been quashed. He has further placed reliance on order of co-ordinate Bench of this Court dated 12/02/2020 passed in M.Cr.C.No.35145/2019 (Rohit and Another Vs. State of Madhya Pradesh), wherein proceedings under Section 34(2) of Excise Act were quashed on the similar grounds. On these grounds, learned counsel for the applicant urges for quashment of FIR and all other proceedings against the applicant.

5 . Per contra, learned counsel for the State vehemently opposed the prayer placing reliance on order dated 20/07/2024 passed by the Apex Court in Criminal Appeal No.1005/2022 (The State of Haryana Vs. Samarth Kumar) and submits that arguments advanced on behalf of the applicant can be considered at the time of conclusion of the trial. Relevant para 8 of the aforesaid order is extracted herein below:

"8. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh vs. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial."

6. Learned counsel for the State submits that it is not a case where applicant has been connected only on the basis of memo under Section 27 of the Evidence Act. 70 quarters of country made liquor have also been seized from the applicant on 17/10/2022 on the same crime number. Learned counsel for the State further submits that sufficient material is available against the accused to prosecute him under Section 34(2) of the Excise Act. Learned counsel further submits that 22 cases are registered against the applicant, therefore, this petition filed on behalf of the applicant is without jurisdiction and required to be dismissed.

7. Heard learned counsel for the parties and perused the record.

8. It is undisputed that memorandum under Section 27 of the Evidence Act of co-accused Deepak @ Model was recorded in which he has revealed that the liquor which has been seized from him has been brought from Mohan Rathore, applicant in the present petition resident of Street No.6, Mayur Nagar, Musakhedi, Indore.

9. From perusal of the charge sheet it is also apparent that on 17/10/2022, 70 quarters of country made liquor have also been seized from the accused Mohan, the present applicant, therefore, it cannot be said that there is no evidence relating to present applicant except the memorandum of co-accused Deepak @ Model recorded under Section 27 of the Evidence Act.

10. Co-ordinate Bench of this Court on 08/05/2024 in M.Cr.C.No.19092/2024 (Mohan Vs. State of M.P.) relying on the case of Samarth Kumar (Supra) in para 8 has held as under:

"8] In the decision rendered by the Supreme Court in the case of Samarth