Bhanu Pratap Singh vs The State of Jharkhand

D.G.R. Patnaik, J.—The petitioner in this application u/s 482 of the Code of Criminal Procedure, has challenged the order of cognizance dated 9.1.2006 passed by the Chief Judicial Magistrate, Hazaribagh for the offence u/s 47(B) of Excise Act in G. Case No. 558 of 2005 corresponding to T.R. No. 1316 of 2006.

Heard counsel for the petitioner and the counsel for the State.

Facts of the case, as it appears, is that a mini truck bearing registration No. BEB 8800 was intercepted by the complainant Excise Officer and the vehicle was found carrying 262.2 litres of foreign liquor. The driver and khalashi of the vehicle namely, Kedar Prasad Gupta and Sumant Kumar who were present in the vehicle failed to produce any document for transporting the liquor. The vehicle was therefore seized and both the driver and khalashi was arrested and a seizure report was accordingly prepared. A case was registered against the arrested driver and khalashi of the truck.

The petitioner being the registered owner of the vehicle, filed a petition before the court below claiming release of the vehicle, upon which the court below had called for a report from the investigating officer of the case. It appears further that in spite of the repeated adjournments and stern warning issued by the court, report was not submitted. It was only when the court had sought for explanation from the concerned Excise Officer taking a serious view of the matter, charge sheet was submitted on 9.1.2006 in which the petitioner''s name was added in the category of accused.

On the basis of the prosecution report, which was submitted, the learned court below took cognizance of the offence against the petitioner as also against the two other co-accused persons.

Assailing the impugned order of cognizance, counsel for the petitioner submits that the impugned order of cognizance has been passed without application of judicial mind and without considering the fact that no investigation as contemplated u/s 78(4) of the Excise Act, was conducted by the investigating officer at all to ascertain as to whether the vehicle at the time of its seizure, was in fact being plied or used by the petitioner or that, the petitioner was, in any manner, having knowledge that the liquor was illegally transported by the driver and khalashi of the vehicle. Learned Counsel adds further that the act of impleading the petitioner as an accused in this case even without there being any cogent and reliable evidence collected against him, is apparently an act of vendetta and malicious prosecution since, it was on the prayer of the petitioner that the court below had called the Excise Officer to submit his explanation and show-cause.

Learned Counsel adds further that even otherwise, without there being any proper investigation and without collecting any cogent and reliable evidence which could suggest complicity of the petitioner in the commission of the alleged offence, submission of the prosecution report against the petitioner is malicious and continuation of the criminal prosecution of the petitioner is therefore an abuse of the process of the court.

Counsel for the State, on the other hand, submits that admittedly, the petitioner being the owner of the vehicle, it is presumed that the seized materials were being transported on his vehicle with his knowledge.

Upon hearing the learned Counsel for the parties and after going through the materials available on record, I find that at the time of seizure of the vehicle, the petitioner was admittedly not present with the vehicle. The only person who were present, were driver and khalashi of the vehicle. The case was instituted against the driver and khalashi only at that time and there was no occasion for the investigating officer to make the petitioner as an accused in the case. It also appears from the prosecution report that the petitioner''s name has been added as an accused merely on the basis of a suspicion that since he happens to be the owner of the vehicle, the excise commodities must have been illegally transported with the knowledge of the petitioner. Apparently, no investigation has been carried out to ascertain the complicity of the petitioner in the alleged offence. Section 78 of the Excise Act lays down power and duties of Excise Officer investigating offences. Sub-section 4 of Section 78 of the Act reads as follows:

78(4)-As soon as investigation by a Collector or by an Excise Officer empowered u/s 77, Sub-section (2), has been completed, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate, the investigating officer, shall submit a report which shall, for the purposes of Section 190 of the Code of Criminal Procedure, be deemed to be a police report, to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on its own, if it appears that there is sufficient evidence (Emphasis supplied). It is manifest from the above provisions that before forwarding the accused to the Magistrate, the investigating officer must inform that there is sufficient evidence to justify the forwarding of the accused to the Magistrate.

In the present case, as it appears, no investigation whatsoever was carried out to ascertain the complicity of the petitioner in the alleged offence. Apparently, the petitioner''s name has been added only after the court below had issued a show-cause notice to the officer-in-charge and that too, without assigning any satisfying reason as to why the petitioner has been made an accused in the case, nor informing the court below as to whether any cogent and reliable evidence was collected against the petitioner and if so, what was such evidence on the basis of which the petitioner was sought to be prosecuted.

It appears from the impugned order of the court below that the above aspect have not been considered by the court below while passing the impugned order of cognizance against the petitioner and summoning him to face trial. It appears that the impugned order of cognizance has been passed in a mechanical manner by referring to the prosecution report and not considering as to what are the materials on the basis of which prosecution of the petitioner was sought to be initiated.

For the reasons stated and discussions made, I find force in the grounds advanced by the petitioner. As such, there being merit in this application, the same is allowed. The impugned order of cognizance dated 09.01.2006 passed by the C.J.M. Hazaribagh in G. Case No. 558 of 2005 corresponding to T.R. No. 1316 of 2006, as against the petitioner, is hereby set aside.