HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Crl.P.No.8105 of 2022
ORDER:
The petitioner is accused No.3 in Crime No.101 of 2021 of Special Enforcement Bureau (SEB) Station, Ongole for the offences punishable under Section 34(a) of A.P. Excise Act, 1968 (for short 'the Act').
2. The case of the prosecution is that accused Nos.1 and 2 were found in possession of non duty paid liquor bottles during the course of raids conducted in the village of the said accused on 16.12.2021. Upon being questioned, accused Nos.1 and 2 are said to have confessed that the liquor bottles in their possession had been purchased from the petitioner herein, who had bought the bottles from Bangalore and sent the same to accused Nos.1 & 2, for selling the same in and around their village for higher prices. Thereafter, the profits were being distributed between the petitioner and accused Nos.1 and 2. On the basis of the said confession the petitioner was included as accused No.3 in the above crime.
3. The petitioner has now challenged the criminal complaint on the ground that no offence can be made out against the petitioner under Section 34(a) of the Act, even if the allegations made in the confessional statement are taken to be true. Apart from this, the petitioner would also contend that the petitioner could not have been included as an accused merely on the basis of a confessional statement made by the fellow 2 RRR,J Crl.P.No.8105 of 2022 accused and relies upon a judgment of the Hon'ble Supreme Court in the case of Nanjappa vs. State of Karnataka in Criminal Appeal No.1867 of 2012 dated 24.07.2015.
4. Sri Y. Ramesh, learned counsel appearing for the petitioner, would submit that Section 34(a) of the Act would not be applicable to the petitioner as none of the ingredients required under the said provision, to attract the offence under Section 34(a) of the Act, are made out against the petitioner. He would also submit that in view of the definition under Section 2(31) of the Act, the petitioner cannot be accused for transporting non duty paid liquor.
5. Learned Public Prosecutor submits that the petitioner had been arrayed as accused No.3 on the basis of the confessional statements made by accused Nos.1 and 2. Thereafter, further investigation has revealed the involvement of the petitioner in the transport and sale of non duty paid liquor in the State of Andhra Pradesh, and as such, stopping the investigation at this stage would not serve the ends of justice.
6. Section 34(a) of the Act reads as under:
34. Penalties for illegal import, etc., - Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act,-
(a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; or 3 RRR,J Crl.P.No.8105 of 2022
7. The allegation against the petitioner is that he is involved in transport of non duty paid liquor, which would be in contravention of the provisions of the A.P. Excise Act, 1968.
8. The term "transport" has been defined in Section 2(31) in the following manner.
2(31) "Transport" means to move from one place to another within the State, whether or not the intervening area lies wholly within the State, and includes, to move from one place outside the State to any other place outside in through the intervening area lying within the State.
9. Sri Y. Ramesh, learned counsel for the petitioner, contends that the allegation against the petitioner is that he was transporting liquor from Bangalore to Prakasam District in Andhra Pradesh, which would mean that he has purchased the non duty paid liquor from a place outside the State and was transporting the same to a place inside the State and such transport is not covered by the definition under Section 2(31) of the Act.
10. The language of Section 2(31) commences with the word "means" which would, in the normal course, be an exhaustive which cannot take into account any other terms beyond the words contained in the definition. However, there has been an amendment to the provision by which the words "and includes to move from a place outside ...." were included. It is a settled principle of interpretation of statutes that the word 4 RRR,J Crl.P.No.8105 of 2022 "includes" indicates an inclusive definition, which would mean that the definition is not exhaustive and is only indicative.
11. In the circumstances, it cannot be held that the transport would not include transport of non duty paid liquor from outside the state to a place within the state.
12. Sri Y. Ramesh, learned counsel for the petitioner would also submit that the petitioner cannot be roped into the offence merely on the basis of a confession by a co-accused and relies upon the judgment of the Hon'ble Supreme Court in Dipakbhai Jagdishchandra Patel vs. State of Gujarat and Anr.,1.
13. The judgment of the Hon'ble Supreme Court arose in a case where a trial had been conducted and the accused had been acquitted. Thereafter, the High Court, on appeal, had reversed the judgment of the trial Court, resulting in an appeal being filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court took the view that an accused cannot be convicted merely on the basis of the confession of a co-accused, unless there is corroborative evidence requiring conviction of the accused person.
14. In the present case, the matter is still at the stage of investigation and cannot be compared with the facts of the case before the Hon'ble Supreme Court. It is also settled law that investigation ought not to be thwarted at the inception and the parameters of testing the 1 (2019) 16 SCC 547 5 RRR,J Crl.P.No.8105 of 2022 maintainability of a complaint are different from the parameters of testing whether a charge sheet ought to be quashed or not. In the circumstances, it cannot be said that the investigation can be stopped at this stage when the investigating officer is seeking to gather necessary corroborative material.
15. In the circumstances, this criminal petition is dismissed. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_________________________ R. RAGHUNANDAN RAO, J.
14th November, 2022 Js.
6 RRR,J
Crl.P.No.8105 of 2022
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Crl.P.No.8105 of 2022
14th November, 2022
Js.