Crl.O.P.(MD)No.12446 of 2020

BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT

DATED: 08.03.2022

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.(MD)No.12446 of 2020

and

Crl.M.P(MD)No.5649 of 2020

Shanmugaraj

... Petitioner/Accused

Vs.

1.State represented by,

The Inspector of Police,

Thoothukudi South Police Station,

Thoothukudi.

(In Crime No.492 of 2017).

... 1^st Respondent/Complainant

2.S.Nambirajan

... 2^nd Respondent/

Defacto Complainant

Prayer: Criminal Original Petition filed under Section 482 Cr.P.C.,

to call for the records pertaining to the case registered in First

Information Report in Crime No.492 of 2017 on the file of the first

respondent and quash the same as illegal.

For Petitioner

: Mr.G.Anto Prince

For R – 1

: Mr.R.M.Anbunithi

Additional Public Prosecutor

ORDER

This Criminal Original Petition has been filed to quash the FIR

in Crime No.492 of 2017 for the offences under Sections 4(1)(aaa), 4

(1)(i) and 14A of the Tamil Nadu Prohibition Act, 1937 on the file

of the first respondent.

2.The defacto complainant lodged a complaint alleging that on

10.06.2017 at about 10 p.m., when the second respondent/defacto

complainant along with other police officials were on duty patrol,

they identified a motorcycle and later found that the said vehicle

belonged to one Shanmugaraj, namely, the petitioner herein, and

found 23 bottles in a box containing 750 ml of white and black

whisky. On enquiry, the petitioner said that he had bought the above

said liquor bottles for sale from one unknown person. On further

investigation, the respondent also seized few bottles of liquor from

the petitioner's residence.

3.The learned counsel appearing for the petitioner raised the

grounds that the case of the prosecution is only on the basis of the

suo motu complaint made by the second respondent, who is also the

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Crl.O.P.(MD)No.12446 of 2020

Investigating Officer, who .registered the F.I.R in the cadre of

Sub-Inspector of Police. The second respondent exercised his

jurisdiction though he is not competent to do under the Tamil Nadu

Prohibition Act, 1937. In accordance with the provisions of Section

4(1)(b) of the Right to Information Act, 2005, the Prohibition and

Excise Wing of Home, Prohibition and Excise Department, Government

of Tamil Nadu and as a pro-active disclosure the State Government of

Tamil Nadu brought out a manual for information and guidance of the

stakeholders and the general public. The point 2.7 of the said

manual stated that the Additional Director General of Police

(Enforcement) is the head of this unit and he is assisted by the

Inspector General of Police (Enforcement), a Superintendent of

Police, Central Investigation Unit at Chennai and a Superintendent

of Police (Enforcement) each at Chennai, Salem and Madurai. As per

the Act, 94 Prohibition Enforcement Wing units functioning in the

State headed by the Inspectors of Police are declared as police

stations for enforcing the Tamil Nadu Prohibition Act, 1937.

Further, in the case on hand, the second respondent registered the

F.I.R in Crime No.492 of 2017, who is not the enforcing officer

under the Act.

4.In this regard, it is relevant to rely upon the Judgment of

the Honourable Supreme Court of India reported in 2018 (4) MLJ (Crl)

244 - [Mohan Lal Vs. The State of Punjab]. It will be useful to

extract the relevant portions of the judgment which reads as

follows:

“5. We have considered the submissions on behalf

of the parties. The primary question for our

consideration in the present appeal is, whether in a

criminal prosecution, it will be in consonance with

the principles of justice, fair play and a fair

investigation, if the informant and the investigating

officer were to be the same person. In such a case,

is it necessary for the accused to demonstrate

prejudice, especially under laws