HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ****

Date of Decision: 08.05.2025 ****

Chetan Kumar ... Petitioner VS.

State of Haryana ... Respondent ****

CORAM: HON’BLE MR.JUSTICE SANDEEP MOUDGIL ****

Present: Mr. Akshay Kumar Dahiya, Advocate for Mr. Pawan Kumar Hooda, Advocate for for the petitioner Mr. Chetan Sharma, DAG Haryana ****

Sandeep Moudgil, J. (Oral)

(1). This petition under Section 528 BNSS has been filed by the petitioner with a prayer to quash the FIR No.305 dated 27.09.2024 (Annexure P1) under Sections 61(1)(a) of Punjab Excise Act, 1914 (Haryana Amendment Bill, 2020) registered at Police Station Manesar, District Gurugram along with all consequential proceedings arising therefrom.

(2). Learned counsel for the petitioner submits that as per the prosecution case, the petitioner was found driving a Honda City car wherefrom the police is said to have seized a crate containing 12 bottles of Kingfisher beer, without permit/licence. It is argued that FIR is frivolous for the reason that the petitioner along with two other friends had purchased the said beer carton from Ms/ Discovery Liquor House for an amount of Rs.1700/- and the bill to that effect is appended as Annexure P2.

(3). It is urged that the rigours of Section 61 of the Punjab Excise Act, 1914 can be imposed only on establishment of mens rea or criminal intent on the part of the person apprehended without any licence or permit or bill to hold or carry such liquor items. He then exhorted that the carton of beer was purchased by the petitioner to celebrate birthday party at his hometown and not for its illegal or unlawful transport or sale.

(4). Notice of motion. Mr. Chetan Sharma, DAG Haryana accepts notice. He submits that the police on interception of the car owned and driven by the petitioner was found in possession of 12 bottles of beer. He, however, could not contradict the stand of the petitioner and submitted that the bills were there but the same could not be verified to be genuine by the police and thus finding it to be a bogus bill, the police registered the FIR and filed chargesheet. He also relied upon the confessional statement dated 27.09.2024 (which is part of the challan at page 42 of the paperbook) made by the petitioner wherein he admitted the fact that he used to deal in sale and purchase of liquor/beer from the liquor shop.

(5). Heard learned counsel for the parties.

(6). It is settled proposition of criminal jurisprudence that criminal proceedings cannot be allowed to become instrument of harassment and in cases where the action of the prosecution suffers from frivolity and malicious intentment, the courts are empowered under Section 528 of BNSS to quash such proceedings ab initio.

(7). Apparently, in cases involving import, export, possession of liquor without lawful permit, as per Section 48 of the Punjab Excise Act, it is only the magistrate who can take cognizance of an offence under section 61 of the Act on a report of a police officer vested with the powers of an Excise Officer under this Act. Thereafter, the Magistrate can issue warrant under clause (a) only when he has reason to believe that an offence under Section 61 or 63 has been is being or is likely to be committed and he can issue warrant under clause (b) of this Section only for the arrest of any person whom he has reason to believe to have been, to be or to be likely to be engaged in the commission of any offence under Section 61 or Section 63 of the Act.

(8). In the present case, admittedly there is a clear and egregious breach of Section 48 of the Act, without any plausible justification for such non-compliance. The statutory requirement mandates that the Magistrate record reasons for authorizing a search, which is a crucial step in ensuring the legitimacy of the search process. The failure to adhere to this requirement by the police, undermines the procedural safeguards embedded in the Act, thereby rendering the search potentially unlawful. The purpose of recording and forward