Asutosh Kumar vs State Of Jharkhand

Gautam Kumar Choudhary, J

Instant petition has been filed for quashing the order taking cognizance dated 07.01.2021 passed in Khunti P.S. Case No.135 of 2020 corresponding to G.R. No.45 of 2021 under Sections 272, 273 of the Indian Penal Code and Section 47A of the Excise Act.

The order of cognizance has been impugned mainly on the ground that under the Excise Act, it is only excise officials, who are empowered to investigate the offence.

It is argued that the petitioner was appointed as Depot Manager by Jharkhand State Beverage Corporation Ltd. vide letter No.25 dated 03.01.2017 and he was carrying the said seized liquor from the depot to retailer. There is no violation of Section 47A of the Excise Act. Reliance has been placed on Prakash Chandra Versus State of Jharkhand, 2006 SCC OnLine Jhar 1030 wherein the criminal proceeding was quashed on the ground that accused had purchased foreign liquor from the shop of the petitioner and the petitioner was a licensee.

Another plea of the petitioner is that the seized liquor was sent for chemical examination by the State Forensic Science Laboratory, Jharkhand in which on chemical examination, it was found containing 22% of Ethyl Alcohol. The percentage of alcohol does not make it is spurious in view of the ratio decided in State of Jharkhand & Others Versus Ajanta Bottlers & Blenders Private Limited; (2019) 7 SCC 545. Offence under Section 47 (a) will not be made out on these allegations.

The State has filed counter affidavit. It is submitted by the learned A.P.P. that huge quantity of country made liquor was seized, 600 bottles in total, from the car in which the accused persons including this petitioner was travelling at the relevant time. In view of the fact that offence both under I.P.C. as well as under the Excise Act has been made out therefore, there is no bar to the investigation by police.

It may be noted that power of detection and investigation has been given to Excise officials under chapter IX of the Act, 2000. But where on the basis of materials on record, I.P.C. offence is also made out and the cases registered both under the Special Act as well as under I.P.C., the police officer will have power to investigate the offence. As per the prosecution case, 180 L of country made liquor was seized from the car for which the cognizance under Sections 272 and 273 of I.P.C. has also been taken. The petitioner was in the car at the relevant time. These are materials which make out prima facie offence both under I.P.C. and under Section 47(a) of the Excise Act.

There is an apparent error in taking of cognizance under Section 47 (A) of the Excise Act. As per the F.I.R. and the materials on record, there is allegation of trading in illicit country made liquor against the individuals for which the relevant provision is Section 47 (a) of the Excise Act and not Section 47(A) which is for the offence committed by the companies.

Under the circumstance, order taking cognizance is quashed, the matter is remitted to the learned Court below and the learned Court below is directed to pass order afresh after considering the materials on record.

Criminal Miscellaneous Petition is accordingly disposed of.