Rushikesh Ravindra Aaherwadikar ... vs The State Of Maharashtra
2017 Latest Caselaw 7353 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CRIMINAL APPELLATE JURISDICTION

       CRIMINAL WRIT PETITION NO.2997 OF 2017



1 Rushikesh Ravindra Aaherwadikar
Age: 24 Years,
Occ: Service,
R/o. Flat No.10, Kudalepatil Paradise,
Pushpak Sweet Lane,
Manikbaug, Pune.

2 Pavan Ashokrao Warle
Age: 24 Years, Occ: Service,
R/o. Walhekarwadi, Akurdi,
Pune.                                                ......Petitioners

                 V/s.

The State of Maharashtra
Through Kothrud Police Station,
Pune                                                 .......Respondent


Mr. Samir Kumbhakoni with Mr. Vaibhav Nirdhar, Advocates
for Petitioners.
Mr. V.B.Konde-Deshmukh, APP for Respondent-State.


                          CORAM : R.M.SAVANT &
                                  SANDEEP K. SHINDE, JJ.

DATE : September 20, 2017.

JUDGMENT : (Per Shri Sandeep K. Shinde, J.)

Rule made returnable forthwith. With the consent

of the learned counsel for the Parties, the matter is taken up

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for final hearing forthwith.

2 The Petitioners have challenged the legality, validity

and propriety of the FIR No.49 of 2017 dated 4.2.2017 registered

under Section 65(e), 68(a) and (b) and 84 of the Maharashtra

Prohibition Act and the charge-sheet filed therein. It is nobody's

case that the Petitioners were possessing any intoxicant in

contravention of the provisions of this Act or of any rules and

regulations or order made or of any licence, permit or authorisation

granted thereunder. Prosecution has alleged that the Petitioners

were found drinking in a "common drinking house" and thereby

rendered themselves liable for penalty within the meaning of

Section 84 of the said Act. That perusal of the FIR, allegations

therein and other material accompanying the FIR, does not

disclose cognizable offence in-as-much as penalty under Section 84

of the said Act is a fine to the extent of 5,000/- Rupees. In view of

this fact, the FIR does not disclose cognizable offence justifying

investigation by the Police under Section 156(1) of the Code. More

so, it appears that the allegations made in the FIR even if they are

taken at their face value and accepted in their entirety do not

prima-facie constitute any offence or make out the case against the

Petitioners/Accused. We say so because the only allegation made

against the Petitioners was that they were found drinking in a

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common drinking house. Admittedly, along with the charge-sheet,

the prosecution has not placed on record blood test report of the

Petitioners to establish that they had consumed liquor in the

common drinking house. The only material against the Petitioners

brought on record is the statement of the Investigating Officer who

had raided the "Common Drinking House" that, the Petitioners were

smelling alcohol. In the given set of facts and upon perusing the

material on record, we are of the opinion that neither the FIR nor

other material accompanying it discloses any offence much less the

cognizable offence against the Petitioners. It cannot be ignored that

the Petitioners had been to the restaurant for having food, which

was raided by the Respondents. The Prosecution has not brought on

record any evidence to show that it was within the knowledge of the

Petitioners that the premises, i.e, 'Hotel on the Rocks' was "Common

Drinking House" within the meaning of Section 2(7) of the

Maharashtra Police Act. That unless prosecution discharges

primary burden as aforesaid, presumption under Section 84 of the

Act will not be of any assistance to prove the charge under Section

84 of the Act. Besides, prosecution has not subjected the Petitioners

to medical test and, therefore, there is no evidence on record to

prima-facie establish that they had consumed liquor in the common

drinking house which allegedly was not possessing licence/permit

to sell the liquor.

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3                In view of the aforesaid facts, the Petition is allowed

and the Crime No.49 of 2007 registered with the Kothrud Police

Station, Pune and the charge-sheet filed therein as against the

Petitioners is hereby quashed and set aside. The Petition is,

accordingly, made absolute in terms of prayer clauses (b) and (b-i).

(SANDEEP K. SHINDE, J)                             (R.M.SAVANT, J)




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