Bombay High Court
Meghnath Dwarkanath Arora vs State Of Maharashtra on 16 December, 2016
Bench: Anuja Prabhudessai
1378 of 2001 and 1379 of 2001.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1378 OF 2001
Dayal Marumal Bhojwani ..Applicant
through Akash Traders, (Org. Accused)
residing at Lokhandwala Complex,
Andheri (West), Mumbai.
v/s.
The State of Maharashtra . ..Respondent
(Org. Complainant)
ig WITH
CRIMINAL APPLICATION NO. 1379 OF 2001
Meghnath Dwarkanath Arora ..Applicant
Prop. Arora Enterprises, Amravati (Org. Accused)
v/s.
The State of Maharashtra . ..Respondent
Org. Complainant )
Mr.D.B.Sawant with Vinayak Salokhe for the Applicants.
Mr.Arfan Sait with Mr. P.H. Gaikwad, APP for the Respondent-State.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
RESERVED ON : 9th December, 2016.
PRONOUNCED ON:16th December, 2016.
JUDGMENT:
1. By these applications filed under Section 482 of Cr.P.C. the
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applicants have challenged the order dated 26.11.1999, whereby the
learned Chief Judicial Magistrate, Thane, rejected the applications for
discharge filed under Section 239 of Cr.P.C. in C.C.No.3248 of 1998.
2. The applicant in Cri. Application No.1378 of 2001 is the
accused no.14, whereas the applicant in Cri. Application No.1379 of
2001 is accused no.12 in C.C.No. 3248 of 1998, filed under Section
66(1)(b), 65, 81, 83, 98 and 108 of the Bombay Prohibition Act.
These applicants had sought discharge on the ground that they had
purchased imported liquor upon making payment by cheque under
valid bill and transport pass. The applicant further stated that the
first purchaser who had transported the liquor from the State of Goa
to the State of Maharashtra, was liable to pay the excise duty, and
that they being the subsequent purchasers, who had only transported
the liquor within the State, were not liable to pay any duty or tax.
The applicants further claim that they had followed the procedure
meticulously and that there is no prima facie material against them
for the alleged offences.
3. The learned Judge, after considering the grounds raised by the
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applicants- (A-14 and A-12 respectively) dismissed the applications
for discharge on the ground that the excise department had seized a
huge contraband from the godown of R.T.Traders, Bhiwandi. The
learned Judge further held that the said contraband was imported
without paying the excise duty and thereafter in connivance with
A15, a serving ex-officer the said contraband was transported to
wholesale dealers and retailers at various places in Maharashtra by
using forged transport passes. The learned Judge has held that the
applicant-accused being conspirators have passed the goods without
paying excise duty. The learned Judge therefore held that there is
prima facie material to proceed against the applicants and
consequently dismissed the applications for discharge. Being
aggrieved by the said orders, the applicants have invoked the
jurisdiction of this Court under Section 482 of Cr.P.C.
4. Shri Sawant, the learned Counsel for the applicants has
submitted that Revision Application nos. 43 of 2000, 44 of 2000 , 45
of 2000 and 49 of 2000, filed by the co-accused have been allowed
by this court by judgment dated 23.7.2009 whereby the order passed
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by the learned CJM has been quashed and set aside. Consequently,
the co-accused Rajkumar Govindani, Jethchand Tekwani, Kamlesh
Vaswani and Pitambar Tekwani have been discharged of these
offences. The learned counsel for the applicants has further
submitted that the allegations leveled against the applicants are
similar and that no case is made out against the applicants, and as
such these applicants are also entitled for discharge. He has further
submitted that this court being a co-ordinate bench cannot take a
contrary view from the one taken by this court in the above referred
revision applications. In support of this contentions he has relied
upon the decisions in the case of G.L.Batra vs. State of Haryana
2013 AIR SCW 6042 and Bir Bajrang Kumar v, State of Bihar &
Ors. AIR 1987 SC 1345.
5. Learned APP Shri Arfan Sait has contested the applications
vehemently. Relying upon the decisions of the Apex Court in State
of Maharashtra & Ors. vs. Ishwar Piraji Kalpatri AIR 1996 SC 722
and State of Bihar vs. Rajendra Agarwalla (1996) 8 SCC 164 he
has submitted that this is not a stage to embark upon an inquiry as to
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the probability, reliability or genuineness of the allegations in the
complaint/FIR. He contends that the inherent powers can be
exercised only when the material collected during investigation taken
at its face value does not disclose the offence alleged. appreciate the
evidence and/or to give any findings on merits of the matter. He has
relied upon the decision of the Apex Court in
6. I have perused the record and considered the submissions
advanced by the learned counsel for the applicants and the learned
APP for the State.
7. The records reveal that on 28.11.1995, on receipt of reliable
information, the State Excise Flying Squad, Konkan Division had
carried out raid in the premises of Ramesh Chhabria (A1), proprietor
of M/s. R.T.Traders, at Kondgaon, Taluka Bhivandi, District Thane
and recovered stock of foreign liquor manufactured by National
Distillery, Goa. The said liquor was brought from Goa to
Maharashtra by forging passes/ license and without paying excise
duty. The accused nos.1 to 3 were arrested and the liquor was seized
under panchanama drawn at the spot.
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8. It is alleged that the accused no.1 had imported the foreign
liquor without paying excise duty, and had sold the said liquor to
M/s. Amit Wines (A6). It is the case of the prosecution that the
applicant and several other persons holding licenses in form FL-I
purchased the said foreign liquor from Amit Wines (A6).
9. It is pertinent to note that the accused had not imported the
said foreign liquor. They were also not the first receivers.
Consequently, the applicant accused were not liable to pay the excise
duty on the liquor. The only allegation against the applicants is that
they had purchased the said liquor from M/s. Amit Wines. It is not
in disupte that the applicants are whole sellers and were having valid
licenses FLI granted under Rule 5 of Bombay Foreign Liquor Rules,
1958. They had purchased the liquor from A6 under valid license
upon making payment by cheque. The bills contained a certificate in
form BB duly signed by A6 stating that excise duty imposed under
Government notification had been paid on the foreign liquor sold
under the said bill/cash memo. There is no prima facie material to
indicate that the applicant accused had knowledge that A1 or A6 had
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evaded payment of excise duty or that they had conspired in any
manner in commission of the offence. The material on record on the
face of it does not disclose the essential ingredients of 'conspiracy' or
'abetment'. Hence, the applicant accused cannot be prosecuted for
the alleged offences solely on the ground that they had purchased the
liquor which was imported by the co-accused by evading excise duty/
tax
10.
It is also pertinent to note that the co-accused who were
charged with same offences on the basis of the same facts and
circumstances have already been discharged by this Court vide order
dated 23.7.2009 in Revision Application nos. 43 of 2000, 44 of 2000 ,
45 of 2000 and 49 of 2000. The allegations against the applicants
and the said co-accused are similar in all respects. There are no
distinguishing factors as regards the charges levelled and the material
relied upon to differentiate the case of the applicants from the case of
the co-accused, who have been discharged. Therefore on the
principle of parity, the applicants also deserve to be discharged.
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11. Under the circumstances and in view of discussion supra, the
applications are allowed. The impugned order dated 26.11.1999
passed by the learned Chief Judicial Magistrate, Thane is quashed
and set aside qua the present applicants.
(ANUJA PRABHUDESSAI, J.)
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