Rahul Gupta & Ors. v. State of Punjab

The contents of the FIR Annexure P-2 read as under:- “Today SI/SHO along with ASI Jaswinder Crl.Misc.No.M- 24946 of 2009 (O&M) 2 Singh 528, C Haqiqat Singh 542, on government vehicle PB 12H-7227 who's driver is HC Ajaib Singh, were present in village Duneke near Nestle Dairy Bridge. We were on patrolling duty at that time when a police informer gave information to us that Rahul Gupta s/o Ashok Kumar caste Sania r/o Bedi Nagar, Ward No.7, Moga, Yogesh Arora s/o Satpal Arora r/o Amritsar Road near Puja Tent House Moga, Sanjeev Sharma s/o Rajinder Sharma r/o 655 Rajguru Nagar, Moga and Rajesh Kumar s/o Surinder Singh Arora r/o 1803, Lane No.3C New Dashmesh Nagar, Moga are running a country made liquor shop (Desi Theka Sharab) in a house which belongs to some NRI. That they are selling illegal liquor by mixing it in the country made liquor (Desi Theka Sharab). If raid be conducted right now, the above named persons can be apprehended along with heavy quantity of illegal liquor. This information is credible and trustworthy so the above mentioned illegal act comes under the purview of Section 420 IPC, 61-1-14 Excise Act. Ruqa is sent to the police station through CI Haqiqat Singh 542 for recording of a formal FIR. FIR number if made known and wireless information to PCR be given. I along with the police party is already towards the location which was told to me by the secret informer.” Crl.Misc.No.M- 24946 of 2009 (O&M) 3 Learned counsel for the petitioners has submitted that in view of the amended provision of Section 61 A of the Act, the matter was to be dealt as per Section 61 A of the Act. The challan was not to be presented in the Court but the matter was required to be adjudicated by officers of Excise and Taxation Department. In support of his arguments, learned counsel has placed reliance on Jarnail Singh and others vs. State of Punjab 2008 (3) RCR (Criminal) 749, wherein in para Nos. 15 and 16, it was held as under:- “If the facts of the present case are examined in the light of position of law as discussed above, it is clear that on the date when the liquor was recovered by the Excise Officer, in terms of the provisions of Section 61A of the 1914 Act, the matter was to be adjudicated upon by the officers in the Excise & Taxation Department and no challan was required to be presented in the Court. Once correct position of law was brought to the notice of the learned Court below, in my opinion, the Court below has not committed any illegality in returning the challan back to the Public Prosecutor as the Court did not have jurisdiction to deal with the matter. Merely because a direction has been given to the petitioner to appear before the competent authority no pre-judice has been caused to the petitioner as the matter will now be dealt with by the authority concerned in accordance with law. Once the Crl.Misc.No.M- 24946 of 2009 (O&M) 4 challan presented in the Court has itself been returned to the Public Prosecutor, the order framing charge against the petitioner shall be considered as non-est, however, the same will not pre-judice the proceedings before the competent authority in any manner. The situation which has emerged in the present case was avoidable. There are three organs of State, the legislature, the executive and the judiciary. The legislature is to enact laws, the executive is to implement the same and the courts are to examine the laws and the actions of the executive. It is evident from the facts of the present case that though amendment was carried out in the Punjab Excise Act, 1914 vide Punjab Act No.10 of 2003 with effect from 02.05.2003 providing for different forums for different offences, however, the persons at the helm of affairs who had to implement the Act in its true letter and spirit were not educated about the same which resulted in unnecessary delay in the prosecution of the case, as the proceedings were launched at a wrong forum. It is desirable that whenever a new scheme of things come into operation with the amendment in the Act or the rules, the persons who are concerned for implementation thereof should be educated about its requirements and the procedure to be followed. This will Crl.Misc.No.M- 24946 of 2009 (O&M) 5 result in avoiding unnecessary litigation or technical objections.” Learned State counsel on the other hand has opposed this petition. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. In the present case, FIR in question was registered against the petitioners on the basis of a secret information. Admittedly, at the time of raid, 600 boxes of Heer Safi Brand Desi liquor were recovered from the petitioners. Section 61-A of the Act read as under:- 61-A.Penalty for offences not triable by a Court:- (1) Whosoever, in contravention of any provision of this Act, the rules framed thereunder, any notification issued or any order made or any license, permit or pass granted under this Act, imports, exports, transports, or possesses any liquor, shall alongwith liquor and means of transport, except the passenger buses, owned by the Central Government or the State Government or any of their undertaking, be detained by an Excise Officer, who shall make a report to the Assistant Excise and Taxation Commissioner, in-charge of the district within a period of twenty-four hours of such detention. The Excise Officer shall forward such liquor and the means of transport Crl.Misc.No.M- 24946 of 2009 (O&M) 6 alongwith the necessary documents to the Assistant Excise and Taxation Commissioner in-charge of the district. (2) On the receipt of the report referred to in sub-section (1), the Deputy Excise and Taxation Commissioner incharge of the Division, shall record the statements of the offender and the officers, concerned with the case, and release the offender. (3) The Assistant Excise and Taxation Commissioner incharge of the district, may impose the following penalties after providing the offender a reasonable opportunity of being heard in case a liquor detained in licit, on which the excise duty and other levies have been paid in the State of Punjab, namely:- (a) rupees five thousand in case of detection of such liquor upto two cases i.e. 18 bulk litres; and (b) rupees ten thousand in case of detection of such liquor exceeding more than two cases i.e. 18 bulk litres. (4) The Assistant Excise and Taxation Commissioner incharge of the district, may confiscate the illicit liquor and may also impose the following penalties after providing the offender a reasonable opportunity of being heard in Crl.Misc.No.M- 24946 of 2009 (O&M) 7 case the liquor detained is illicit, on which the excise duty and other levies have not been paid in the State of Punjab, namely:- (a) rupees twenty five thousand in case of detection of such liquor up to five cases i.e. 45 bulk litres; (b) rupees fifty thousand in case of detection of such liquor exceeding five cases i.e. 45 bulk litres, but not exceeding fifty cases i.e. 450 bulk litres; and (c) rupees on lac in case of detection of such liquor exceeding fifty cases i.e. 450 bulk litres. (5) If the penalty referred to in sub-section (4), is not paid within a period of one week from the date of the order, then. The Deputy Excise and Taxation Commissioner in- charge of the Division shall pass a speaking order for confiscation of the means of transport and the liquor after giving an opportunity of being heard to the offender and the owner of the means of transport. In case the owner of the liquor and the means of transport are not available, then the order for confiscation may be passed by the Deputy Excise and Taxation Commissioner in-charge of the Division by affording an opportunity of being heard to the offender, who has been caught with the goods. The Crl.Misc.No.M- 24946 of 2009 (O&M) 8 confiscated liquor shall thereafter, be destroyed under the supervision of the Deputy Excise and Taxation Commissioner incharge of the Division and an authenticated copy of the said order shall be supplied to the affected person free of cost. (6) The Deputy Excise and Taxation Commissioner incharge of the Division, shall put to auction the confiscated means of transport within a period of thirty days from the date of the order of confiscation passed under sub-section (5). The amount received from auction after deducting the expenditure incurred on it, shall be adjusted towards the payment of penalty by the owner. The unrecovered amount of penalty, if any, shall be recoverable as arrears of land revenue.” Thus, as per the above provision, since the boxes of licit liquor had been recovered from the possession of the petitioners, action was required to be taken against them by the officials of Excise and Taxation Department in accordance with the penalty provided under Section 61A of the Act. The said provision has been introduced by the Punjab Excise (Amendment) Act, 2006 i.e. Act No.32 of 2006. Hence, after investigation, the police challan cannot be presented in the Court against the petitioners. Accordingly, the present petition is allowed. FIR No. 86 dated 31.7.2009 (Annexure P-2), under Sections 420 IPC and Crl.Misc.No.M- 24946 of 2009 (O&M) 9 Section 61 of the Act, registered at Police Station Moga Sadar District Moga and all the subsequent proceedings, arising therefrom, are quashed. However, the Investigating Agency is at liberty to proceed against the petitioners as per Section 61-A of the Act. September 28, 2010 (SABINA) JUDGE