S. Rajaiah vs State of A.P.

C.Y. Somayajulu, J.—This is an application to quash the proceedings in Crime No.326/2004-2005 of Prohibition & Excise Police Station, Bellampally, against the petitioner (A-5).

The case of the prosecution is that on 07.08.2004, the A.P. State Excise officials raided the house of A-1, on credible information, and recovered four litres of illicit liquor from him under a panchanama after drawing samples, and that during the course of route watch, they caught hold of an auto bearing No. AP-1U-6855 belonging to the petitioner (A-5) being driven by A-3, with 208 Kgs of Black Jaggery and 20 Kgs of Urea, who on interrogation, informed them that he brought the Jaggery from A-4, to sell the same to the manufacturers of illicit liquor and so the Black Jaggery, Urea and the auto were seized under the cover of a panchanama, and thus all the accused are liable for punishment u/s 34(a) and (e) of the A.P. Excise Act, 1968 (the Act).

Petitioner, admittedly, was not present either at the time of seizure of illicit liquor or black Jaggery and Urea being transported in his auto, by the driver of the Auto i.e. A-3. Since Section 34(a) of the Act relates to possession, petitioner who admittedly was not in possession of any of the articles seized from his auto and which are not intoxicants as defined in the Act, at the time of their seizure, cannot be said to have committed an offence under that section even assuming that all the allegations in the FIR are absolutely true. So, the FIR against the petitioner for an offence u/s 34(a) of the Act is liable to be quashed.

The question then is whether the fact that Black Jaggery and Urea are being transported in his auto would enable the A.P. State Excise officials registering a case u/s 34(e) of the Act against the petitioner. Since Black Jaggery and Urea are not intoxicants as defined in the Act, their possession, purchase or transport without licence under the Act, per se, is not an offence under the Act. The case of the prosecution is, the driver of the auto of the petitioner, on interrogation informed the excise officials that he is taking the stock in his auto to sell it to the manufacturers of illicit arrack. Since the driver of the auto i.e. A-3 is shown as an accused, on the basis of the statement that he is transporting the stock to sell it to manufacturers of illicit liquor, it is clear that ''intention'' to sell the stock to the manufacturers of illicit arrack, on the part of A-3, is the cause for his being shown as A-3 in the FIR. Mere intention and/or preparation, by themselves, are not offences in any criminal law or under the Act. So, merely because the material seized from the auto of the appellant can be used in preparation of arrack, and since as per Section 34(e) of the Act using etc. of material for the ''purpose'' of manufacture of intoxicant is an offence, petitioner, who is the owner of the auto in which black Jaggery and Urea are being transported, cannot be made as an accused only on the basis of his being the owner of the auto, more so because the driver of the auto of the petitioner also cannot even prima facie be said to have committed an offence u/s 34(e) of the Act by transporting Black Jaggery and Urea, in view of the ratio in Malkiat Singh v. State of Punjab where the apex Court held that in order to determine whether an act of an individual constitutes an attempt or preparation, the test is to find out if the overt acts already done are such that if the offender changes his mind, and does not proceed further in its progress, the acts already done would be completely harmless. The following observations of the apex Court in holding so would be of help in deciding this petition.

"In order that a person may be convicted of an attempt to commit a crime he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proxmate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it."

From the above observation of the apex Court, it cannot but be said that mere possession or transport of a material, which is not an intoxicant, but which is useful in preparation of an intoxicant, would not by itself be an offence u/s 34(e) of the Act.

Since petitioner, admittedly, was neither present nor was in possession of the black Jaggery or Urea and merely because his auto was being used by his driver, for transporting black Jaggery from one place to another place, may be with an intention to sell it to the manufacturers of illicit arrack, is not and cannot be an offence u/s 34(e) of the Act, and so from the allegations in the FIR, it cannot be said that the petitioner committed an offence u/s 34(e) of the Act, also and so the FIR against the petitioner is liable to be and hence is quashed. Petitioner is entitled to return of the auto bearing No. AP-1U-6855, seized by the excise officials from his driver.

The petition is allowed accordingly.