Shankar Ghosh .... .... … v. 1. The State of Jharkhand 2. Officer-in-Charge, Kundhit Police Station, Jamtara
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2368 of 2020 ------ Shankar Ghosh .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Kundhit Police Station, Jamtara .... .... .... WITH Tapan Kumar Mandal Cr.M.P. No.2291 of 2020 .... …. .... Opp. Parties Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Narayanpur Police Station, Jamtara .... .... .... Opp. Parties WITH Shankar Ghosh Cr.M.P. No.2299 of 2020 .... …. .... Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Nala Police Station, Jamtara .... .... .... Opp. Parties WITH Cr.M.P. No.2305 of 2020 Anand Kumar Singh .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Karma Tanr Police Station, Jamtara .... .... .... Opp. Parties WITH Sukhen Prasad Chand Cr.M.P. No.2306 of 2020 .... …. .... Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Nala Police Station, Jamtara .... .... .... Opp. Parties WITH Cr.M.P. No.2309 of 2020 Shankar Singh .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Bindapathar Police Station, Jamtara .... .... .... Opp. Parties WITH Cr.M.P. No.2320 of 2020 Sukhen Prasad Chand .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Nala Police Station, Jamtara .... .... .... Opp. Parties WITH Cr.M.P. No.2332 of 2020 Avik Goswami .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Karma Tanr Police Station, Jamtara .... .... .... Opp. Parties WITH 2 Cr.M.P. No.2336 of 2020 Shankar Singh .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Fatehpur Police Station, Jamtara .... .... .... Opp. Parties WITH Cr.M.P. No.2340 of 2020 Anand Kumar Singh .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Bindapathar Police Station, Jamtara .... .... .... Opp. Parties WITH Cr.M.P. No.2360 of 2020 Munazerul Hassan .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Narayanpur Police Station, Jamtara .... .... .... Opp. Parties WITH Cr.M.P. No.2393 of 2020 Shankar Ghosh .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Officer-in-Charge, Baghdehri Police Station, Jamtara .... .... .... Opp. Parties
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioner For the State : Mr. Sumeet Gadodia, Advocate Mr. Ritesh Kumar Gupta, Advocate Mr. Shashank Kumar, Advocate Ms. Shilpi Sandil Gododia, Advocate : Mr. Manoj Kumar, G.A. III Mr. Rakesh Kumar Roy, AC to GA III Mr. Ravi Prakash Mishra, AC to AAG II Mr. Mohammad Asghar, AC to Sr. SC II Mr. Ashish Priyadrashi, AC to Sr. SC I ------ Order No.03 Dated : 07.11.2023 I.A. No.9767 of 2023, I.A. No.9771 of 2023, I.A. No.9768 of 2023, I.A. No.9773 of 2023, I.A. No.9772 of 2023, I.A. No.9774 of 2023, I.A. No.9770 of 2023 and I.A. No.9769 of 2023 Heard learned counsel in I.A. No.9767 of 2023 filed in Cr.M.P. No.2368 of 2020, I.A. No.9771 of 2023 filed in Cr.M.P. No.2299 of 2020, I.A. No.9768 of 2023 filed in Cr.M.P. No.2305 of 2020, I.A. No.9773 of 2023 filed in Cr.M.P. No.2309 of 2020, I.A. No.9772 of 2023 filed in Cr.M.P. No.2332 of 2020, I.A. No.9774 of 2023 filed in Cr.M.P. No.2336 of 2020, I.A. No.9770 of 2023 filed in Cr.M.P. No.2340 of 2020, I.A. No.9769 of 2023 filed in Cr.M.P. No.2393 of 2020 for challenging the respective cognizance order in all these cases under Sections 420, 272, 273, 290, 34 of the Indian Penal Code and Section 47(a) of the Bihar Excise Act. 3 Learned counsel on behalf of opposite party no.2 has not raised any serious objection to the said amendment incorporating the challenge to the cognizance order in the prayer portion. I.A. No.9767 of 2023, I.A. No.9771 of 2023, I.A. No.9768 of 2023, I.A. No.9773 of 2023, I.A. No.9772 of 2023, I.A. No.9774 of 2023, I.A. No.9770 of 2023 and I.A. No.9769 of 2023 are allowed and the petitioners are permitted to incorporate the cognizance order in the prayer portion of the respective criminal miscellaneous petitions. Cr.M.P. No. 2360 of 2020 Learned counsel on behalf of petitioner in Cr.M.P. No.2360 of 2020 submits that the petitioner- Munazerul Hassan is no more and accordingly, it has become infructuous and this Petition is not being pressed herewith. Considering the submission, Cr.M.P. No.2360 of 2020 is dismissed as infructuous. In all these criminal miscellaneous petitions common question of facts are
Decision
involved and as such they are heard together and will be disposed of by the common order. Cr.M.P. No. 2368 of 2020 with analogous cases The facts of the case lies in narrow compass that under the oral direction of Deputy Commissioner, Jamtara, a raid was conducted in the retail outlet of these petitioners pursuant to the Memo No.767/B dated 15.07.2020 issued by the Block Development Commissioner, Kundahit, a raiding team of police officials was constituted and search was conducted in Government liquor shop of the petitioners on 15.07.2020. 2. In the said search, certain excess stocks than as shown in the stock register was found, and their license had expired on 31st March, 2020. Accordingly different cases were registered with respect to each of the raid on the basis of self-statement of police officer. 3. After investigation, charge sheet has been submitted on which cognizance order has been passed. Being aggrieved by the said orders, the criminal miscellaneous petitions have been preferred before this Court. 4. It is submitted by the learned counsel that there is no allegation, far less any material to make out an offence of cheating under Section 420 of the Indian Penal Code. Sections 272, 273, 290, 34 of the Indian Penal Code will not be attracted as the liquors that were seized, were not of spurious nature. During the pendency of investigation, the seized liquor was released in favour of the petitioners on no objection of the investigating agency. This rules out any spurious content in the said seized liquor and there is no material to show that they were every sent for chemical examination. 4 5. With regard to the license for the sale of liquor by these petitioners, in the counter affidavit filed on behalf of State, it is contended that the petitioners were having valid license for sale of both foreign liquor and the country made liquor for the financial year 2021-22. In the said settlement, the period of license was mentioned as 1st April, 2019 to 31st March, 2020 which was subjected to renewal and was renewed for the financial year 2020-2021, which was duly endorsed in the copy of license itself. Despite the fact that license was duly renewed by the competent authority of Excise Department, it has been stated that the license of the petitioners had expired on 31st March, 2020 and was not renewed. The copy of license has been enclosed showing renewal upto the year 2020-21. 6. It is further submitted that in view of fact that the petitioners were licensee, the police personnel were not permitted to exercise the power of search and seizure in the shops and establishment of the petitioner in view of Section 69 of the Excise Act, 1915 which reads as under:- 69. Power to enter and inspect, and power to test and seize measures etc. Any of the following officers, namely: (a) the Excise Commissioner; or (b) a Collector; or (c) any Excise Officer not below such rank as the State Government may, by notification, prescribe; may, subject to any restriction prescribed by the State Government by rule made under Sec. 89: (i) enter and inspect, at any time by day or night, any place in which any licensed manufacturer carries on the manufacture of or stores any intoxicant; and (ii) enter and inspect, at any time during which the same may be open, any place in which any intoxicant is kept for sale as by any licensed person; and (iii) examine the accounts and registers maintained in any such place as aforesaid; and (iv) examine, test measure or weigh any materials, stills, utensils, implements apparatus of intoxicant found in any such place as aforesaid; and (v) examine or test and seize any measures, weights or testing instruments, found in any such place as aforesaid, which he has reason to believe to be false. 7. It is submitted by the learned G.A. III that as per counter affidavit, the petitioners were not having valid license at the time of said search and seizure. It is submitted that the license was cancelled subsequent to the search and seizure as stated in the counter affidavit. 8. Further, the liquor was found to be excess as per the stock register of the petitioners. 9. In reply, it is submitted that even if it is assumed that there was excess liquor than displayed in the stock register, Section 47(a) of the Excise Act will not be attracted rather penalty is imposed under Rule 47 “Jharkhand Utpad (Madira Ki Khudra Bikri Hetu Dukano Ki Bandobasti Evam Sanchalan) Niyamavali, 2018 10. After having considered the submissions advanced on behalf of both sides, I find much force in the argument on behalf of the petitioners that there is no material to disclose any offence under Indian Penal Code. There is no allegation that 5 the liquor that were seized were adulterated or spurious in nature, or they were sent for chemical analysis on the said point. Similarly how the offence under Section 420 of the Indian Penal Code has been imputed is not clear as there is no material or allegation of any inducement on the part of the petitioners. 11. As discussed above, copy of the renewal of license has been filed to show that on the date of such a seizure the petitioners were having valid license for sale of foreign liquor. 12. Section 69 of the Jharkhand Excise Act, 2000 specifically mandates that only designated officers in this provision inter alia inspect at any time the place in which any intoxicant is for sale by any licensed person. From this provision, it follows that places of the persons having valid license was not open to be searched by any person other than the designated officers. Under the aforesaid facts and circumstance and the reasons discussed above, this Court is of the view that order taking cognizance is not sustainable in the eyes of law and is accordingly set-aside. Criminal miscellaneous petitions are allowed. Anit (Gautam Kumar Choudhary, J.)