Balasaheb S/O. Mahadeo Lohar And ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 9648 Bom

                                       (1)                            cri.appln 5449.17

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD


                    CRIMINAL APPLICATION NO.  5449 OF 2017

1.      Balasaheb S/o Mahadeo Lohar,
        Age : 41 years, Occ. Service,
        R/o Gangakhed Sugar & Energy
        Ltd. Premises, Gangakhed,
        Tq. Gangakhed, Dist. Parbhani.

2.      Rajendra S/o Daulat Dongare,
        Age : 44 years, Occ. Service as
        Chief Executive Officer,
        Gangakhed Sugar & Energy
        Ltd. Gangakhed.
        R/o Gangakhed, Dist. Parbhani.

                                                 ...      APPLICANTS

                        Versus

1.      The State of Maharashtra
        Through the Flying Squad of
        Prohibition & Excise Department,
        Mumbai.

     2. The Incharge Police Station Officer,
        Pathardi Police Station,
        Dist. Ahmednagar.                        ...      RESPONDENTS

                                       -----

Mr. V. D. Sapkal, Advocate for the Applicants.
Mr.D.R. Kale, A.P.P. for the Respondent/State.
                                      -----




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                                             (2)                                cri.appln 5449.17



                           CORAM :  S.S. SHINDE &
                                     MANGESH S. PATIL, JJ.

DATE OF RESERVING THE JUDGMENT : 29.11.2017 DATE OF PRONOUNCING THE JUDGMENT : 15.12.2017

...

JUDGMENT: (Per Mangesh S. Patil, J.)

. Rule. Rule is made returnable forthwith. With the consent of the

parties, matter is heard finally.

2] This is an application under Section 482 of the Code of Criminal

Procedure with following prayers in clause 'B' and clause 'C'.

"B] Quash & set aside the Clause-3 of the Hon'ble Minister for State Excise, Maharashtra State, Mantralaya, Mumbai dated 18/09/2017 in File No. RVN.1116/RA-256/SE-3 and for that purpose issue necessary orders.

C] Quash and set aside the F.I.R./Crime No.333/2016, registered with Flying Squad of Prohibition and Excise Department, Mumabi, on 06.09.2016, for the offences punishable U/secs. 65 (a)

(e), 81, 83, 90 and 108 of the Maharashtra Prohibition Act, 1949, to the extent of the applicants and for that purpose issue necessary orders."

3] According to the applicants the applicant no. 1 is the Distillery

Manager whereas the applicant no. 2 is the Managing Director of Gangakhed

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Sugar and Energy Ltd. which is a private Sugar Factory. The Flying Squad of

the Prohibition and Excise Department, Mumbai intercepted a Tanker bearing

registration No. MH-04-DS-9808 carrying 23,000 liters of rectified spirit at

Mitsangvi Chauphuli, Ta. Pathardi, Dist. Ahmednagar on National Highway

No. 222. When the driver and the Cleaner on the Tanker were unable to

produce any permit for transportation of spirit, the Flying Squad took them to

Pathardi Police Station and F.I.R. bearing Crime No. 333/2016 was registered

on 06/9/2016 for the offences punishable under Section 65 (a) (e), 81, 83, 90

and 108 of the Maharashtra Prohibition Act, 1949 (hereinafter referred to as

the Act). The applicant no. 1 was also shown as accused no. 5 in the Remand

Report which was submitted before the Magistrate on 09/09/2016.

Simultaneously, the licence granted in favour of Gangakhed Sugar and Energy

Ltd., Gangakhed was also calcelled under Section 54 (1) (c) of the Act.

4] It is further averred by the applicants that the State Government

has compounded the matter under Section 137 of the Act and has imposed

fine of Rs. 5,00,000/-. The order was passed by the Minister for State Excise,

Maharashtra State under Section 104 of the Act in File No. RVN.1116/RA-

256/SE-3 (Exhibit-'C'). However while passing the order, inspite of having

imposed the fine by invoking powers under Section 104 of the Act, by the

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impugned direction in clause 3 of the order the prosecution was directed to

continue. Hence this application with aforementioned prayers.

5] According to the learned Advocate for the applicants, clause 3 of

the impugned order is contrary to the provisions of Section 104 (2) of the Act.

On payment of the fine amount of Rs. 5,00,000/- as compounding charges,

the persons accused of the offences are entitled to be set at liberty and the

property seized should be released. Such composition results in acquittal and

the person cannot be proceeded again further. Therefore, in view of the

specific provisions contained in Section 104 of the Act, the impugned F.I.R.

deserves to be quashed and set aside.

6] One Mr. Prasad Bhalchandra Sasturkar Inspector, State Excise,

Flying Squad, Maharashtra State, Mumbai has submitted an affidavit in reply

on behalf of respondent No.1-State. He has admitted about the interception

of the Tanker and registration of the crime. He has contended that during the

course of investigation it was transpired that the spirit was filled in the tanker

at M/s. Gangakhed Sugar and Energy Ltd., Vijaynagar, Makhani, Tq.

Gangakhed, Dist. Parbhani. The driver also disclosed that the applicants had

called him and the spirit was filled in the Tanker at their instance. He also

(5) cri.appln 5449.17

disclosed that he had handed over the cash worth Rs. 15,00,000/- to the

applicants which was given to him by one Mr. Pravin @ Dada Wani of Dhule

for purchasing the spirit. He has then stated that considering severity of the

case senior officer of the rank of Superintendent had to inspect the factory

and it was found that there are discrepancies in the stock of molasses and

spirit. An unaccounted huge stock of molasses and spirit has been found at

the factory premises. There was also a shortage of 1863 litres of spirit. It was

found that the stock of molasses was being used for production of spirit

illegally and which was being sold unauthorizedly. He has then stated that

Call Data Records have also been seized which reveal that the driver of the

Tanker was involved in the telephonic conversation with the applicants even

on the date on which the Tanker was intercepted. Then he has submitted that

the chemical analysis report transpried that the seized spirit was transported

illegally for potable purposes. He then admitted about the cancellation of the

distillery licence of M/s. Gangakhed Sugar and Energy Ltd., Vijaynagar,

Makhani, Tq. Gangakhed, Dist. Parbhani. Lastly, he has contended that had

there been any such sale of spirit the State Government would have lost Rs.

1,00,000,00/-. He has then contended that the Minister for State has rightly

directed the prosecution to continue.

                                               (6)                                 cri.appln 5449.17

7]              The   learned   A.P.P.   also   made   submission   in   tune   with   the 

statement   made   in   affidavit-in-reply   of   Mr.   Sasturkar.     The   learned   A.P.P. 

submitted that even if the interpretation sought to be placed by the learned

Advocate for the applicants on Section 104 of the Act is considered, the

compounding is possible only in respect of the specified offences whereas by

the impugned F.I.R. some other offences have also been registered which

cannot be compounded even by invoking the powers under Section 104 of the

Act. Thus he prayed to reject the application.

8] We have carefully gone through the papers and also through the

provisions of the law. In order to appreciate the matter in controversy it is

necessary to first reproduce the operative part of the impugned order passed

by the Minister for State Excise, which reads thus :

vkn s' k

"1 vtZnkjkpk vihy vtZ ekU; dj.;kr ;sowu vk;qDr] jkm'kq ;kaps fn- 21-10-2016 ps vkns'k jn`n dj.;kr ;sr vkgs- 2 vihydkjkph rMtksMhlanHkkZr dj.;kr vkysyh fouarh ekU; d:u egkjk'Vª nk:canh vf/kfu;e] 1949 P;k dye 104 e/khy rjrqnhuqlkj vuKIrhq jn`n dj.;k,soth rMtksM 'kqYd Eg.kwu #- 5 yk[k naM vkdkj.;kr ;sr vkgs-

3 egkjk'Vª nk#canh dk;nk] 1949 ps dye 65 (a), (e) o

(d), 72] 77 ¼c½] 79] 81] 82] 83] 90] 103] o 108 vUo;s ?kVd o brjkfo#/n uksnfo.;kr vkysyk xqUgk dz- [email protected] e/khy QkStnkjh djokbZ iq<s pkyw jkghy-

4 ?kVdkP;k vihy vtkZP;k vuq'kaxkus fn- 10 tkusokjh] 2017 P;k ikfjr varfje vkns'kkuqlkj ?kVdkus 'kklu tek dsysyh mRiknu

(7) cri.appln 5449.17

'kqYdkph jDde #] 40]50]000/- ;krwu ;k vkns'kkrhy dz- 2 e/;s uewn dsysyh #- 5 yk[k naMkph jDde otk d:u moZfjr jDde iq<hy o'kkZP;k uqruhdj.k 'kqYdkr lek;ksftr dj.;kr ;koh-"

It can be translated in English as under:

"1] The Appeal Application of the applicant is allowed and the order passed by the Commissioner, State Excise dated 21.10.2016 is quashed.

2] The request of the appellant for composition is accepted and as per the provisions of Section 104 of the Maharashtra Prohibition Act, 1949 instead of cancelling the licence the amount of Rs. 5,00,000/- is imposed as composition charges.

3] The prosecution in respect of the appellant and others in respect of Crime No.333/2016 for the offence punishable under Section 65 (a), (e) and (d), 72, 77 (b), 79, 81, 82, 83, 90 and 108 of the Maharashtra Prohibition Act, 1949 shall continue.

4] The amount of Rs. 40,50,000/- deposited by the appellant in accordance with the interim order passed on 10.01.2017 as Excise Duty shall be appropriated towards the amount of Rs. 5,00,000/- being imposed by directions in Clause-2 of the order and the remaining amount shall be appropriated towards the renewal charges for the next year."

9] It is also necessary to understand the provisions of Section 104 of

the Act which reads thus :

"104. Compounding of offences :

(1) The State Government may sanction the acceptance from any person whose licence, permit, pass or authorization is liable to be cancelled or suspended under the provisions of sections 54 and 56 or who is reasonably suspected of having committed an offence under sections 67 A, 67 B, 69, 73, 74, 76, 77, 82 or 108,

(8) cri.appln 5449.17

of a sum of money in lieu of such cancellation or suspension or by way of composition for the offence which may have been committed, as the case may be; and in all cases in which any property other than the intoxicant, hemp, mhowra flowers or molasses has been seized as liable to confiscation under this Act may release the same on payment of the value thereof as estimated by the State Government or such officer as the State Government may authorize in this behalf:

Provided that where a person who is reasonably suspected of having committed an offence under section 69,70 or 108 is not the holder of a licence, permit, pass or authorization granted under this Act or a person in the employ of such holder or a person acting with his express or implied permission on his behalf, the sum of money which may be accepted from such person by way of composition shall not exceed five hundred rupees:

Provided further that, in the case of a person who is reasonably suspected of having committed an offence under section 108, for not more than three occasions, the sum of money which shall be accepted from him by way of composition for the offence, shall,-

(a) for the first offence, be an amount equal to three times the duty or fee evaded by him;

(b) for the second offence, be an amount equal to four times the duty of fee evaded by him; and

(c) for the third offence, be an amount equal to five times the duty or fee evaded by him:

Provided also that, the sum of money which may be accepted by way of composition for the offence under the second proviso shall be in addition to the duty or fee to be paid by him under this Act.

(2) On the payment by such person of such sum of money, or such value or both, as the case may be, such person, if in custody, shall be set at liberty and the property seized may be released and if any proceedings shall have been instituted against such person in any Criminal Court, the composition shall be held or amount

(9) cri.appln 5449.17

to an acquittal and in no case shall any further proceedings be taken against such person or property with reference to the same facts."

10] According to the learned Advocate for the applicants, in view of

Sub-Section (2) of Section 104 of the Act, since the amount of Rs. 5,00,000/-

was ordered to be deposited, the applicant no. 1 deserves to be set at liberty

and the prosecution cannot continue since such payment of money amounts to

composition as well.

11] We have carefully considered all the facts and legal aspects but

we are unable to accept the submission of the learned Advocate for the

applicants. A careful reading of the provision of Section 104 would reveal

that whenever the licence, permit, pass or authorization issued under the Act

is liable to be cancelled or suspended under the provisions of Section 54 and

56 or when a person is reasonably suspected of having committed an offence

under Section 67 (a), 67 (b), 69, 73, 74, 76, 77, 82 or 108 of the Act, the

State Government has the power to receive a sum of money in lieu of such

cancellation or suspension of the licence, permit etc. or by way of composition

for the offence which may have been committed. It is thus apparent that

there are two independent powers vested in the State by Sub-Section (1) of

( 10 ) cri.appln 5449.17

Section 104. Firstly, it can receive a sum of money instead of cancelling or

suspending the licence, permit, pass or authorization under Section 54 and

56. Secondly, it can receive a sum of money by way of composition for the

offence mentioned therein. This distinction, in our view, is apparent.

12] It is also important to bear this distinction in mind while reading

the operative part of the order passed by the Minister for State Excise (supra).

It has been specifically ordered that the appeal was being allowed thereby

setting aside the order passed by the Commissioner of State Excise dated

21/10/2016 by which the distillery licence granted to M/s. Gangakhed Sugar

and Energy Ltd., Vijaynagar, Makhani, Tq. Gangakhed, Dist. Parbhani was

directed to be cancelled. In Second Clause it has been made clear that the

request of the factory for payment of money in lieu of cancellation of distillery

licence was being accepted in lieu of payment of Rs. 5,00,000/-. In the Third

Clause which is impugned in the present application, the prosecution was

directed to be continued and by Fourth Clause the amount of Excise duty

deposited in view of the interim order was directed to be appropriated

towards the amount of Rs. 5,00,000/-. It is thus apparent that the Minister

for State Excise has invoked the powers under Section 104 of the Act only in

respect of cancellation of licence and no money was directed to be accepted

( 11 ) cri.appln 5449.17

by way of composition of offence. As is observed above the two powers are

distinct and separate. In this view of the matter, the submission of the learned

Advocate for the applicants that the amount of Rs. 5,00,000/- was received in

lieu of composition of offence is factually incorrect. The submission of the

learned Advocate clearly overlooks the two distinct and separate powers

conferred on the State Government by Sub- (1) of Section 104.

13] Since the very basis of the argument advanced by the learned

Advocate for the applicants being factually incorrect, no fault can be found

with the impugned direction by which Minister for State Excise has directed

the prosecution to continue. In fact, the observation of the Minister for State

Excise in the impugned Clause no. 3 of the order is redundant inasmuch as

even in the absence of such direction the prosecution would have continued

on the basis of impugned F.I.R.

14] Be that as it may, by the order passed by the Minister for State

Excise the dispute as regards the cancellation of distillery licence was resolved

and there was no amount received by way of composition for the offence

involved. Incidentally, since the prayer for quashing of the F.I.R. has been

based solely on the challenge to the direction in the Clause 3 of the order

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passed by the Minister for State Excise and as we have held herein above that

there is no illegality in directing the prosecution to continue, the prayer for

quashing of the F.I.R. is also not tenable.

15] The application has no merit and is rejected. The Rule is

discharged.

     [MANGESH S. PATIL, J.]                                   [S.S. SHINDE, J.]




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