NILESH SHARMA v. THE STATE OF MADHYA PRADESH

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of Cr.P.C. for quashing of the FIR No.416/2021 dated 23.10.2021 and the consequent Charges-sheet No.418/2021 dated 21.12.2021 and the consequent proceedings seeking the following reliefs:-

"In the light of foregoing facts and circumstances it is prayed that the impugned FIR (Annexure-P/1) and consequential proceeding in furtherance thereto including the charge sheet to the extent it implicates the present petitioner may kindly be quashed."

3] At the outset, counsel for the petitioner has drawn the attention of this Court to the order passed by this Court in respect of the co-accused Manish Jatt S/o. Late Chetramjatt passed in

M.Cr.C. No.19768 of 2022 dated 17.01.2023 whereby his petition filed under Section 482 of Cr.P.C. has been allowed and the FIR has been quashed against him.

4] Counsel has submitted that the present petitioner Nilesh Sharma was the partner of co-accused Manish Jatt, which fact has also been noted by this Court in para 3 of the aforesaid order dated 17.01.2023, and it is submitted that the petition filed by the present petitioner be also allowed on the ground of parity. It is submitted that there is absolutely no distinguishing features so far as the present petitioner and co-accused Manish Jatt are concerned.

5] On the other hand, counsel for the State has opposed the prayer, however, it is not denied that the role assigned to the present petitioner is identical to that of co-accused Manish Jatt, whose FIR has already been quashed and the State has not challenged the aforesaid order dated 17.01.2023 passed in

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M.Cr.C.No.19768/2022.

6] Heard counsel for the parties and perused the record as also the order passed in M.Cr.C. No.19768 of 2022 dated 17.01.2023, which reads as under:-

"1] Heard finally, with the consent of the parties.

2] This petition has been filed under Section 482 of Cr.P.C. for quashing of the FIR and the further consequential proceedings initiated against the present petitioner arising out of Crime No.416 of 2021 lodged at Police Station Daloda, District Mandsaur under Sections 34(2), 42 and 44 of M.P. Excise Act, 1915.

3] In brief, the facts of the case are that the incident took place on 22.10.2021, at around 23:40 PM when the police Daloda apprehended a truck bearing registration No.MP/13/GA/1983 in front of the shop of the petitioner as the petitioner happens to be a licence holder and has a valid licence issued by the Excise Department in the name and style of M/s. Manish Kumar Jatt which was valid from 01.06.2021 to 31.03.2022. In the aforesaid truck 324 boxes containing foreign liquor were seized and the case was registered against owner of the truck, Wazir, who was also the driver and one Sachin, who was present on the spot as also against Nilesh Sharma, who happens to be the partner of the present petitioner, who fled from the spot.

4] The case of the petitioner is that firstly, the charge-sheet has been filed by a Sub Inspector of Police Station Daloda, District Mandsaur, who is not competent to file the charge-sheet against the petitioner, who, admittedly is a licence holder, and secondly; no case is made out as aforesaid for the reason that the petitioner is a licence holder and the other licence holder, M/s. Maa Bhadrakali Enterprises wanted to transfer the excess bulk of liquor, which they purchased from Jaora Excise Depot and as per the circular dated

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15.05.2021, since they wanted to transfer the said liquor to the petitioner's shop, the formalities of the aforesaid procedure was duly observed by the petitioner and the proprietor of M/s. Maa Bhadrakali Enterprises, which is also filed along with charge-sheet at page 221, which is a letter of request issued to the District Excise Officer for transfer of the liquor of M/s. Maa Bhadrakali to the shop of the petitioner and for this purpose, the letter was addressed on 22.10.2021 in the office hours that would be prior to 6 O' clock in the evening, which was endorsed by Excise Officer, directing the parties to pay the requisite fees as provided in the circular dated 15.05.2021, and thereafter the requisite fees was paid by the M/s. Maa Bhadrakali Enterprises on 22.10.2021 itself at 22:24:26 hours. The case of the petitioner is that the vehicle, which was transporting the aforesaid liquor was apprehended by the police, subsequently at 23:40 PM in the same night and the case has been registered as aforesaid.

5] Counsel for the petitioner has submitted that on the basis of the aforesaid documents filed in the charge- sheet, by no stretch of imagination, it can be concluded that the petitioner was involved in the aforesaid offence and in fact it was not an offence at all to transport the liquor from one licensee to the another. Thus, it is submitted that on this ground also the petition is liable to be allowed and the charge-sheet and the subsequent proceedings deserve to be quashed.

6] Counsel for the respondent/State, on the other hand, has opposed the prayer. However, it is not denied that as per the charge-sheet, it has been filed by the Sub Inspector of Police Sanjeev Kumar of Police Station Daloda, District Mandsaur, whereas, as per Section 61 of the M.P. Excise Act, the same is required to be filed by the Collector. However, counsel has also drawn the attention of this Court to a letter issued by the Collector wherein also it is mentioned that such complaint is required to be filed before the Magistrate and in fact this

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letter is addressed to the Magistrate himself. Thus, it is submitted that it is merely a procedural lapse on the part of the Collector not to file the charge-sheet himself which is filed at his instance only. Thus, it is submitted that no case for interference is made out.

7] Heard. Having considered rival submissions, perusal of the charge-sheet, which is filed on record, and also the legal provisions of the M.P Excise Act, it is apparent that the charge-sheet has been filed by Sanjeev Kumar Sub Inspector of Police Station Daloda, whereas, Section 61 of the M.P. Excise Act clearly provides that no cognizance of an offence punishable under Section 34 for the contravention of any condition of license etc., Sections, 37, 38, 38-A and 39 shall be taken, except on a complaint or report of the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorized by the Collector in this behalf. The said section reads as under:-

"[61. Limitation of prosecutions.— (1) No Court shall take cognizance of an offence punishable— [(a) under Section 37, Section 38, Section 38 -A, Section 39, except on a complaint or report of the Collector or an Excise Officer not below the rank of District Excise officer as may be authorised by the Collector in this behalf;]

(b) under any other section of this Act other than Section 49 except on the complaint or report of an Excise Officer or Police Officer.]

(2) Except with the special sanction of the State Government no Judicial Magistrate shall take cognizance of any offence punishable under this Act, or any rule or order thereunder, unless the prosecution is instituted within six months from the date on which the offence is alleged to have been committed.]"

(emphasis supplied)

8] A perusal of the aforesaid letter issued by the Collector to the District Magistrate clearly reveals that the Collector has simply address this letter to the Judicial Magistrate requesting that the cognizance be

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taken of the offence and although this letter does find place in the charge-sheet, but it cannot be said that merely filing of the said letter, would amount to compliance of Section 61 of the M.P. Excise Act, which clearly prescribes that the complaint has to be filed by the Collector or an Excise Officer not below the rank of District Excise Officer as may be authorized by the Collector in this behalf. And admittedly, the charge- sheet has been filed by a Sub Inspector of Police and not by an Officer authorized by the Collector, in this behalf or by the Collector himself and in such circumstances, the charge-sheet cannot be sustained in the eyes of law and is liable to be quashed having been filed by an unauthorised person.

9] It is also found that as per the application dated 22.10.2021 jointly made by M/s. Maa Bhadrakali Enterprises and the present petitioner, it was for the transfer of the liquor under the procedure prescribed by the Circular dated 15.05.2021 under the Excise Act, which was prior in time than the time when the liquor was apprehended and it clearly leads to one and only conclusion that the petitioner was also following the due process of law in transporting the aforesaid liquor and in such circumstances, he cannot be charged for the offences under the provisions of M.P. Excise Act. Thus, on both these counts, this Court is inclined to allow the present petition.

10] Accordingly, the petition stands allowed and the FIR registered at Crime No.416/2021 under Sections 34(2), 42 and 44 of M.P. Excise Act at Police Station Daloda, District Mandsaur as also the subsequent charge-sheet filed in the said crime and all other subsequent proceedings arising out of the said crime are

hereby quashed so far as they relate to the petitioner. The petitioner is discharged from the aforementioned charges.

Petition stands disposed of."

7] In the aforesaid order, it is apparent that in para 3, this Court

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has observed that Nilesh Sharma was although present on the spot, but fled from the spot, and in para 5 the contention of the counsel for the said petitioner Manish Jatt has been noted and it has been found that the liquor was being transported under the circular dated 15.05.2021 only and it was found that the petitioner was following due process of law in transporting the liquor. In such circumstances, this Court has no hesitation to come to a conclusion that the petitioner has made out a case of parity vis.-a-vis the decision rendered in the case of Manish Jatt.

8] Accordingly, the petition stands allowed and the FIR registered at Crime No.416/2021 under Sections 34(2), 42 and 44 of M.P. Excise Act at Police Station Daloda, District Mandsaur as also the subsequent charge-sheet filed in the said crime and all other subsequent proceedings arising out of the said crime are

hereby quashed so far as they relate to the petitioner. The petitioner is discharged from the aforementioned charges. Petition stands allowed and disposed of.

(Subodh Abhyankar) Judge

Pankaj