The High Court of Jharkhand set aside the cognizance order of the court after excess liquor was found from the outlets of petitioners in addition to the expiration of their license and held that places of the persons having a valid license were not open to being searched by any person other than the designated officers under Section 69 of the Excise Act and further, there was no material on record which disclosed any offence under the IPC.
Brief Facts:
A raid was conducted in the retail outlets of the petitioners after a raiding team of police officials was constituted and a search was conducted in the Government liquor shop of the petitioners. In the said search, certain excess stocks that as shown in the stock register were found, and their license had expired. Accordingly, different cases were registered with respect to each of the raids on the basis of the self-statement of a police officer and after the investigation, a charge sheet has been submitted on which cognizance order has been passed. The present petitions were filed for quashing the said orders.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that there is no allegation, far less any material to make out an offence of cheating under Section 420 of the Indian Penal Code and further 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 the investigation, the seized liquor was released in favour of the petitioners on no objection of the investigating agency which out any spurious content in the said seized liquor and there is no material to show that they were ever sent for chemical examination.
Contentions of the Respondent:
The learned counsel appearing on behalf of the state contended that the petitioners had valid licenses for the sale of both foreign liquor and country-made liquor for the financial year 2021-22 which was subject to renewal and despite the fact that the 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. Further, it was submitted that in view of the fact that the petitioners were licensees, 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.
Observations of the court:
The court stated that there was no material on record that disclosed any offence under the IPC and further there was no allegation that the liquor that was seized was adulterated or spurious in nature, or they were sent for chemical analysis on the said point and further 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.
It was observed that a copy of the renewal of the license was already filed by the petitioner to show that on the date of the concerned seizure, the petitioners had a valid license for the sale of foreign liquor.
The court further referred to Section 69 of the Jharkhand Excise Act, 2000 and stated that it 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 and thus places of the persons having valid license was not open to be searched by any person other than the designated officers.
The decision of the Court:
The court allowed the petitions and set aside the impugned order.
Case Title: Shankar Ghosh and ors. vs State of Jharkhand and ors.
Coram: Hon’ble Mr. Justice Gautam Kumar Choudhary
Case No.: Cr.M.P. No. 2368 of 2020
Advocate for the Petitioner: Mr. Sumeet Gadodia, Mr. Ritesh Kumar Gupta, Mr. Shashank Kumar and Ms. Shilpi Sandil Gododia
Advocate for the Respondent: Mr. Manoj Kumar, Mr. Rakesh Kumar Roy, Mr. Ravi Prakash Mishra, Mr. Mohammad Asghar and Mr. Ashish Priyadrashi
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