ASHISH SHIVHARE Vs. STATE OF M P

JUDGEMENT

(1.) The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashment of FIR bearing Crime No.332/2018 registered at Police Station Chandia, District Umaria for the offence punishable under Section 34(2) of the M.P. Excise Act (hereinafter referred to as 'the Act') and subsequent proceedings thereon.

(2.) The brief facts of the case are that on 27.12.2018, an information was received through reliable sources that a vehicle bearing registration No.MP-21E-0472 carrying illicit liquor was passing through Chandia to bypass road. On receipt of such information, the police party went to the spot for checking and during the process, they intercepted the vehicle in question which was carrying the liquor without any valid licence. On interrogation, the driver of the said vehicle disclosed his name as Kapil Rai and as many as three persons namely Gendlal Kol, Sandeep Kol and Chourasi Bhumiya were allegedly sitting therein. In the presence of witnesses, a total quantity of 160 litres of Indian-made foreign liquor (IMFL) was seized and the accused persons were arrested. Accordingly, an FIR has been registered against them. During investigation, on the basis of memorandum of co-accused Kapil Rai recorded under Section 27 of the Indian Evidence Act, the petitioner and one Jhalla Rai have been made accused with the aid of Section 109 of IPC.

(3.) Learned counsel for the petitioner has submitted that the proceedings initiated against the petitioner is nothing but an abuse of the process of law and the allegations were unfounded. According to him, there is no prima facie evidence against the petitioner to connect him with the present crime. The petitioner is an Excise Contractor and on his behalf, copies of the licence have been produced which reveal that liquor licence granted by the Collector in favour of the petitioner for retail sale of country made liquor/IMFL was valid from 01.04.2018 to 31.03.2019. It is also submitted that co-accused Kapil Rai named the petitioner and co-accused Jhalla Rai in his memorandum recorded under Section 27 of the Indian Evidence Act, which is inadmissible in evidence. Learned counsel has further argued that Section 61 of the Act bars taking cognizance against the licensee except by complaint by Collector or person deputed by Collector and police cannot register case against the licensee. To buttress the contention, reliance has been placed on the various decisions of the Apex Court including that of State of Haryana vs Ch. Bhajan Lal, 1992 AIR(SC) 604 and Dipakbhai Jagdishchandra Patel vs State of Gujarat [Criminal Appeal No.714 of 2019 @ SLP (Criminal) No.5415 of 2017].