Babloo Singh vs State of M.P.

Hon''ble Justice Shri N.K. Gupta

The petitioner has submitted an application u/s 482 of Cr.P.C to quash the FIR lodged against him for a crime which was registered at Police Station, Harpalpur, District Chhatarpur at Crime No.84 of 2010 for offences punishable u/s 34(2) and 39 of M.P. Excise Act, 1915 (hereinafter it would be referred to as "the Act") and also the proceedings initiated on the basis of that FIR.

Facts of the case are that on 15.5.2010 550 boxes of Cox Mirinda whisky, in all 4752 litres of liquor, was found plied in Truck No.MP-16H-0209 within the territory of Police Station, Harpalpur. It was informed that whisky was of export quality and according to the contract between the manufacturers and purchaser of a company situated at Singapore that consignment was to be delivered at Kandla Port, Gujarat. It was also informed that a transit pass was issued to transport that consignment from Nowgaon, District Chhatarpur to Kandla Port. On 15.5.2010 in the night the truck was checked in the territory of Harpalpur Police Station and it was found that one Kallu Ghosi was driving the said truck and he was accompanied by Babloo Singh (the petitioner) and Raju Raikwar. On enquiry it was found that the vehicle with the consignment was to be taken by the petitioner and other co-accused persons to a shop at Village Ribai in Uttar Pradesh. Accused Raju Raikwar was Salesman of that shop. Place from where liquor as well as the truck was seized was not in the route of the transit pass. Initially no transit pass was found with any of the accused persons. It was provided by concerned Excise Inspector to the police authorities and therefore, a case for offences punishable under Sections 34(2) and 39 of M.P. Excise Act was registered.

Learned counsel for the petitioner has submitted that a false case is prepared by the Police against the petitioner. Learned counsel for the petitioner invited the attention of this Court to the notification dated 6.4.1992 which was issued u/s 7(c) of the Act by which the previous notifications were superseded and therefore, it is submitted that Police has no authority to consider the crime u/s 39 of the Act as the previous notification issued on 4.7.1959 was superseded. It is also submitted that liquor was sent according to the transit pass issued by the competent Excise Authority and consignment was to be taken to Singapore via Kandla Port. It was to be sent to Kandla Port by road and thereafter from Kandla it was to be sent to Singapore by ship. Concerned transit pass was shown to the Police Harpalpur and the liquor was transported on a proper route. Therefore, no offence u/s 34(2) or Section 39 of the act was made out. Learned counsel for the petitioner has further submitted that if FIR is perused then nothing will be found adverse in that FIR. Transit permit was obtained by the petitioner from the concerned authority and there was no possibility of any forgery of that transit permit. Vehicle was not off route and therefore, there was no violation of any permit condition. Learned counsel for the petitioner has shown a map of Uttar Pradesh to show the route of the vehicle according to the transit pass. It is prayed that FIR lodged against the petitioner be quashed and consequently the trial pending before the concerned Magistrate be also quashed. Learned counsel for the petitioner places his reliance upon the judgment of Hon''ble the Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, .

On the other hand learned Public Prosecutor has submitted that transit pass issued by concerned Excise Officer appears to be fishy. A transit declaration form submitted by the transporter is annexed to show the route of the vehicle but, looking to the transit pass it is no where clear that it was given for this particular vehicle. It is mentioned in the pass that vehicle will be taken from Nowgaon to Agra and then Kandla via Jaipur etc. No other intermediate places are mentioned in that transit pass then, it is expected that vehicle was to travel directly by highway which goes from Nowgaon to Agra via Jhasi. Therefore, vehicle was not required to be taken within the territory of Harpalpur Police Station. Consequently, a consignment was dispatched for Kandla Port and no transit pass was given to the driver or person who was traveling with the consignment. Driver or the petitioner could not produce the transit pass before the concerned checking officer. He has also invited the attention of this Court to the letter dated 18.5.2010 written by Income Tax Officer, Chhatarpur that a consignment which was shown to be dispatched for Kandla Port was not a declared manufactured item and therefore, it was requested that matter may be handed over to the Income Tax Department so that it may take its line of action against the concerned manufacturer. If the alleged consignment was a dispatch for Kandla Port according to the transit pass then entire dispatch must have been shown in the papers of concerned distillery but, the letter issued by Income Tax Department indicates that particular consignment was not shown in the papers of distillery that, it was dispatched for Kandla Port. Under such circumstances, principles of judgment given by Hon''ble the Apex Court in Bhajanlal''s case (supra) are not applicable and therefore, proceedings may not be quashed.

After considering the submissions made by learned counselfor the parties and perusal of the various documents submitted bythe parties including the case diary, it is to be considered as to

First of all it is to be considered that whether the Police Officer was authorized to check the vehicle and to make a case for offence punishable u/s 39 of M.P Excise Act. As per provisions of Section 7(c) of the Act it is directed that powers of various officers of Excise Department shall be notified by the State Government amongst various classes of the officers, whereas powers of the officers other than Excise Officers shall be notified according to the provisions of Section 7(d) of the Act. Initially powers were granted to the Police Officers as well as Excise Officers in the beginning. Learned counsel for the petitioner has invited the attention of this Court to the notification No. B-1-89-85-CT-V dated 6.4.1992 but, by perusal of this notification it is very much clear that it was issued under the provisions of Section 7(c) of the Act and therefore, it is related to the powers of various Excise Officers only and therefore, by this notification previous notifications were superseded, which were issued for the Excise Officers. This notification is not at all issued u/s 7(d) of the Act and therefore, by such notification it cannot be said that previous notifications issued u/s 7(d) were superseded. Under such circumstances, by perusal of the previous notifications it would be clear that Police Officer Incharge of Police Station could seek a permit or pass issued for transportation of liquor u/s 39(a) of the Act. At present transit pass was sought by SHO Harpalpur and therefore, it appears that he has jurisdiction to ask for that transit pass and he could enquire the matter for offence punishable u/s 39(a) of the M.P. Excise Act.

It is the case of the petitioner that, consignment is dispatched from distillery of Nowgaon to Kandla Port so that it could be sent to Singapore and a transit pass was also issued accordingly. However, the documents submitted before this Court do not establish such a contention as raised by learned counsel for the petitioner. Three major lacunas are visible from the side of the defence. Firstly though a consignment was to be plied from Nowgaon to Kandla Port but, no transit pass was given to the persons who were traveling with the consignment. Secondly transit pass provided by the Excise Authority after seizure of the truck, does not indicate that it was issued for the truck which was seized. Truck number given in the transit pass is not legible. If such type of passes are issued then one pass may allow any number of trips with different vehicles in that period. Along with such transit pass, a declaration letter of the transporter is submitted but, it is no where established that particular letter was submitted to the transport authority of Uttar Pradesh having jurisdiction to that area. No permit of that authority is submitted to show that the particular vehicle was permitted to ply from Nowgaon to Kandla through the territory of the State of Uttar Pradesh. Also a consignment was to be taken up to the Kandla Port and therefore, where the truck involved in the incident did not have any national permit therefore, such type of permit was required from the State of Rajasthan and State of Gujarat also but, no such permits are produced before this Court to show that consignment was permitted by the transport authorities so that it could be dispatched to Kandla.

Thirdly one accused Raju Raikwar was also present in the vehicle who, has accepted that the entire liquor which was loaded in the truck was to be taken to a liquor shop of Village Ribai in Uttar Pradesh. If Raju Raikwar was no where concerned with the consignment which was going to Kandla then his presence was unnecessary therefore, it cannot be said that truck was plied on route and prima facie the consignment was not to be taken to Ribai.

Looking to the declaration form it appears that entry point was to be shown by the transporter and driver, from where truck was to enter in Uttar Pradesh and exit point was also to be indicated in that form. Such type of description must have been given in the transit pass also otherwise it would be understood that truck was to be plied on highway that passes from Nowgaon to Agra via Jhasi but, without obtaining any permit from Transport Authority of aforesaid three States, consignment was dispatched, therefore at present it cannot be said that consignment was transported on a proper route according to the transit pass and no offence punishable u/s 34(2) of the Act was made out. Similarly when SHO Harpalpur asked for the transit pass, driver of the truck and other related persons could not produce that transit pass before the SHO, Harpalpur and therefore, it cannot be said that offence u/s 39(a) of the Act is not made out.

On the basis of the aforesaid discussion it is apparent that the petitioner could not establish that no case of M.P Excise Act is made out against him and therefore, by application of principles laid down by Hon''ble Apex Court in Bhajanlal''s case (supra) it is not a fit case in which FIR registered against the petitioner may be quashed. Under such circumstances inherent jurisdiction of this High Court u/s 482 of Cr.P.C cannot be invoked in the present case.

Consequently, petition u/s 482 of Cr.P.C is hereby dismissed.