M/S Premium Bonded Warehouse vs The State Of Assam And Anr
2021 Latest Caselaw 1563 Gua

                                                                                Page No.# 1/8

GAHC010003192021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Rev.P./8/2021

            M/S PREMIUM BONDED WAREHOUSE
            A PARTNERSHIP FIRM HAVING ITS PRINCIPAL PLACE OF BUSINESS AT
            MAIN ROAD, BANDERDEWA, ARUNACHAL PRADESH-791123
            REPRESENTED BY ONE OF ITS PARTNERS SRI RAJESH AGARWAL, AGED
            ABOUT 53 YEARS



            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:THE INSPECTOR OF EXCISE
            TEZPUR SADAR CIRCLE
             D.C. COURT BUILDING
            TEZPUR
             DIST-SONITPUR
            ASSAM
             PIN-78400

Advocate for the Petitioner   : MR. O P BHATI

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                 HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN

                                        JUDGMENT

Date : 20-05-2021

Heard Mr O P Bhati, learned Senior Counsel for the petitioner. Also heard Mr Page No.# 2/8

P N Goswami, learned Standing Counsel, Excise Department, Assam.

2. The revision is preferred challenging the legality and validity of the order dated 22.12.2020, passed by the learned JMFC, Tezpur, in Petition No. 812/2020, filed under Section 457 of the CrPC, whereby the learned Magistrate rejected the prayer of the petitioner to release 990 cases of India Made Foreign Liquor and the Truck, bearing Registration No. NL-03 A 2284, seized in connection with Tezpur Excise Case No. 79 of 2020-2021, registered under Section 53 (1) (A) of Assam Excise (Amendment) Act, 2018.

3. The Assistant Inspector of Excise, Sootia Circle, lodged an FIR with the respondent No. 2 on 30.11.2020, stating, inter alia, that following a secret information on 30.11.2020 at around 5:00 pm, a truck bearing No. NL-03A-2284 was directed to stop at Dolabari, Tezpur, but instead of stopping, the vehicle tried to escape away with more speed, and then the vehicle was chased down and intercepted on National Highway near "Safford Pind" Dhaba, Dolabari and on perusal of the permit, it was found that the vehicle was carrying IMFL Consignment against Import Permit of Manipur and Export Permit issued from Arunachal Pradesh, and as carrying of IMFL to the dry State of Manipur is prima facie illegal, the consignment along with the driver and handyman is handed over to the Inspector of Excise, whereafter, an FIR was lodged, which was registered as Tezpur Excise Case No. 79/2020-21, under Section 53 (1) (a) of the Assam Excise Act, as amended.

4. It is stated that in the course of business, the petitioner sold and transported a consignment of 990 cases of India Made Foreign Liquor to be delivered to M/s Premium Bonded Warehouse, Mantripukhuri, Near MIT, Imphal East, Manipur, on 30.11.2021, through vehicle No. NL-03A-2284 via Assam/Meghalaya accompanied by the valid documents required for such transportation which are as follows:-

i) Letter dated 19.11.2020, issued by the Office of the Commissioner of Tax and Excise, Itanagar (Export Permit).

ii) Excise Pass Form No. X issued by the Excise Officer, I/c dated 31.11.2020 (Truck No. and No. of cases stating thereon and payment of duty).

iii) Invoice No. PBWH/201/2020-21 dated 30.11.2020, issued to Premium Bonded Page No.# 3/8

Warehouse, Manipur.

iv) Letter dated 10.11.2020, issued by the Commissioner, Tax and Excise, Manipur (Import Permit).

4. It is further contended that the aforesaid documents, along with the vehicle were seized by the Excise Officers, but no such seizure list was issued. The aforesaid FIR discloses that the consignment was not seized for non-production of the documents, but only for carrying of IMFL to the dry State of Manipur, which is, prima facie, illegal. The driver and the handyman of the aforesaid truck were also arrested in connection with the aforesaid case.

5. It is stated that the Commissioner of Excise, Manipur, on being reported about the matter of seizure of liquor, by the consignee, by his letter dated 09.12.2020 (wrongly dated as 09.11.2020) addressed to his counterpart in the State of Assam requested him for release of the said vehicle meant for consignee for the para-military forces and State Armed forces and not for open sale as the said truck was wrongly intercepted. Further, it was also informed by the said letter that the transportation is within the knowledge of his office. The petitioner by its letter dated 15.12.2020, addressed to the Inspector of Excise, submitted the various documents, including the aforesaid documents, requesting him for release of the seized consignment as well as the truck. On 04.12.2020, the petitioner firm preferred an application under Section 457 of the CrPC, before the Court of the learned CJM, Tezpur, praying for release of the seized articles, in connection with the aforesaid case and the learned CJM rejected the same on the ground that the IO could not ascertain the ownership of the seized articles and the IO could not provide proper information regarding the genuineness of permit and other documents. Being aggrieved with the aforesaid order, present petition has been preferred.

6. Respondent/Excise Department filed the affidavit-in-opposition, contending, inter alia, that after seizure of the documents and drugs, it has been revealed that the seized 990 cases of IMFL whisky was found to be manufactured at Madhya Pradesh and meant for sale at Arunachal Pradesh. The labels affixed on the bottles clearly stated that "FOR SALE IN Page No.# 4/8

ARUNACHAL PRADESH ONLY". However, upon enquiry, it was informed that this consignment was being transported by M/s Premium Bonded Warehouse, Banderdeva, Arunachal Pradesh to M/s Premium Bonded Warehouse, Imphal East, Manipur. Thereafter, the consignment as well as the vehicle was seized by the Inspector of Excise, Tezpur Sadar Circle. During investigation, it was brought to the notice of the IO by the Commissioner of Excise, Manipur, by letter dated 09.11.2020, that the consignment of IMFL, which was being transported to M/s Premium Bonded Warehouse, Imphal East was meant for consumption by para-military forces. However, a bare perusal of the consignment and the labels affixed on the bottles would reveal that the same was manufactured in Madhya Pradesh and meant for sale only in Arunachal Pradesh. There was no indication whatsoever that the consignment was ever meant for sale/consumption by para-military forces. On 14.12.2020, the IO wrote to the Commissioners of Excise of Manipur and Arunachal Pradesh seeking information as to the genuineness of the permits respectively issued by the two states and whether it was legally permissible for IMFL manufactured in Madhya Pradesh and meant for sale in Arunachal Pradesh and thereafter, be re-exported to Manipur. On the same day, the IO also wrote to the Excise Commissioner, Madhya Pradesh, seeking information, inter alia, as to whether it was legally permissible for IMFL manufactured in Madhya Pradesh and meant for sale in Arunachal Pradesh could thereafter be re-exported to Manipur or any other state. But, no response to the said communication has been received by the IO. Therefore, the said IO once again wrote to the concerned Excise authorities at Arunachal Pradesh and Manipur on 19.12.2020 and 23.12.2020 respectively, reiterating his request for providing the information as requested.

7. Respondent further contended that petitioner projected that they were exporting the IMFL on the strength of permits, but when they were asked to provide the batch numbers of the consignment, they claimed that such batch numbers are unavailable and not maintained by them. This is clearly impermissible as not maintaining records of batch umbers would make the movement of liquor from any godown/warehouse untraceable and if such liquor is illegally/dumped during transportation, there would be no means of tracing it. It is apprehended that licencees may attempt to forge a document reflecting the batch numbers of seized consignment, which they have not yet been able to produce till date. Moreover, the Page No.# 5/8

seized article is not perishable in nature and does not have expiry date.

8. Further, it is stated hat the Excise officials of Arunachal Pradesh did not respond to the repeated notice under Section 91/160 CrPC, to produce the copy of the bond, executed by the licencees or lifting the liquor from the warehouse of Arunachal Pradesh, for transporting the same to Manipur, nor there has been any demand from any paramilitary organization in the State of Manipur, to supply the IMFL. In view of above, it is also suggested that the consignment should be confiscated under Section 74(b) (d)/ 75 (2) (3) of Assam Excise Act, 2000 and relevant rules.

9. It is contended that as per the provision of Section 42 (2) of the Assam Excise Act, 2000, any Officer specially empowered by the State Government, can investigate any offence, which a Court having jurisdiction over the local area, where such Officer is appointed. A combined reading of various provisions under Section 43, read with Section 53/57 & 61 of the Act, read with Sections 160 to 171 CrPC, indicates that authorized Officer is empowered to carry out such investigation, including search and seizure. For causing such investigation, the Officer does not require absolute proof that the offence has been committed but he must be prima facie satisfied that there are sufficient reasons to believe that such an offence has been committed. Thus, it has been vehemently contended that merely because, the consignment was being exported from one State to another through the territory of Assam, cannot be a valid ground to resist that Assam Excise Act is not applicable to any offence, during such transportation. Further, it contends that impugned order of the learned CJM, Sonitpur, calls for no interference. As has been laid down by the Hon'ble Supreme Court, the trade in liquor is res extra commercium, i.e., there is no fundamental right to continue trade in business.

10. In response to the affidavit filed by the respondents' side, the petitioner by filing a reply affidavit, has contended that nothing is reflected in the FIR that the whisky was seen to be manufactured at Madhya Pradesh and was meant for sale at Arunachal Pradesh and other allegations that have been raised subsequently and Assam Excise Act does not extend beyond the territorial jurisdiction of Assam. Since no offence is committed under Section 53 of Assam Excise Act, Excise Department of State of Assam, has no jurisdiction to detain or seize the consignment in question during his transportation in inter-State trade and commerce. It is not Page No.# 6/8

in the domain of the Excise Department, to embark upon the enquiry about the consignment as has been carried out by the respondent/ Excise Department.

11. Primary twin grounds raised by the petitioner is that Assam Excise Department has no jurisdiction to enter into the matter of export and import between the two States, Arunachal Pradesh and Manipur, unless the offence under Section 53 of the Assam Excise Act is made out. On the next, it is contended that the FIR never revealed about the allegation that has been raised subsequently that the seized whisky was manufactured at Madhya Pradesh was meant for sale only at Arunachal Pradesh, which cannot be exported to other States.

12. On the other hand, the learned Standing Counsel for Excise Department has vehemently raised objection that the Assam Excise Department also assumes jurisdiction in terms of Section 42 (2) of the Assam Excise Act and various other sections that has been already mentioned in their affidavit-in-opposition.

13. I have carefully gone through the matters on record and considered the rival submissions of both the parties as well as provisions of the Assam Excise Act.

14. The aforesaid articles/bottles of IMFL was checked by the Excise Department, while in transportation through Assam in Golaghat district. At that point of time, it was the apprehension that such transportation was illegal as Manipur is a dry State and the articles seized were examined only after registration of the case and the seizure was made. During such investigation, on examination of the IMFL bottles, such disclosure was noticed that it was manufactured in Madhya Pradesh for sale in the State of Manipur, whereas, the claim of the petitioner that they have their permit to transport the articles from the State of Arunachal Pradesh to the State of Manipur and the authorities from both the States have also admitted about such transportation. Now, the certain querries have been raised by the Excise Department (as has been indicated in their affidavit) regarding the batch number, genuineness of permit, whether State of Manipur can re-export the IMFL, which was exported to them, only for use in their State etc. and they have failed to respond to the query made by the Excise Department. In the given backdrop, reasonable suspicion has arisen as to the genuineness of such documents as well as the transaction between the two States, which Page No.# 7/8

was again transported through the State of Assam, as to whether any offence has been committed under Section 53 of the Excise Act.

15. The offence under Section 53 of the Excise Act is made out, when there is unlawful import, export, transport, manufactures, possession or sale of any intoxicant in contravention of the Act. So, the "unlawful transportation" is one of the ingredient of the offence, which aspect is under investigation of the Excise Department. Any facet that has been discovered during investigation can be taken into account by the Investigating Officer and that cannot be resisted only because such aspect was not reflected in the FIR, as contended by the petitioners' side.

16. As regards the jurisdiction of the Excise Department, it can be noted that Section 42 (2) of the Act, 2000, empowers the Excise Officials, which reads as below:-

"Section 42 (2) Any other Excise Officer when specially empowered in this behalf by the State Government in this respect of all or any specified class of offences punishable under this Act, may, without the order of the Magistrate, investigate any such offence which a Court having jurisdiction over the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions."

17. Section 43 of the Act of 2000 stipulates that any Collector or other Officer empowered under the provisions of Sub-Section (2) of Section 42 having recorded in writing his reason for suspecting the commission of an offence which he is empowered to investigate, may exercise the power conferred upon a Police Officer making an investigation or upon an Officer-in-charge of a Police Station as per Sections 160-171 of the Code of Criminal Procedure, 1973 and as regards offences punishable under Sections 53, 54, 55, 56, 57 and 61 of the Act, 2000, the powers conferred upon such Police Officers, in respect of cognizable offences under Sections 55 and 57 of the Criminal Procedure Code. Section 43 Sub-Section (3) of the Act, 2000, for the purposes of Section 166 of the Code of Criminal Procedure, 1973, authorizes an officer specially empowered under Sub-Section (2) of Section 42 of Act 2000, who shall be deemed to be a Police Station and such officer shall be the Officer-in- Charge of such station. Sub-Section (4) of Section 43 of the Act, 2000 stipulates that once Page No.# 8/8

the investigation under Section 42 of Act, 2000 is completed and if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate, the Investigating Officer when does not proceed under Sub-Section (2) of Section 42 or under Section 76 shall submit a report, which for the purposes of Section 190 of the CrPC, 1973, shall be deemed to be a police report and the local Magistrate having jurisdiction to inquire into or try the case, is empowered to take cognizance of offence on the police report.

18. The above provisions provided under the Act, empowers the officials of the Excise Department to enter into the investigation to examine the illegal transportation as well as other aspects of a matter. It has been held by the Hon'ble Apex Court in Khoday Distilleries Ltd. & Ors. -Vs- State of Karnataka; (1995) 1 SCC 474, that portable liquor, as a beverage, is an intoxicant and depressant drink, which is dangerous to health and, therefore, an article which res extra commercium, being inherently harmful. A citizen has, therefore, no fundamental right to trade or business in liquor. Hence, the trade or business in liquor can completely be prohibited.

19. In view of the legal provision that has been discussed above, there is no point to challenge the jurisdiction of the Excise Department, to investigate into the matter. The further challenge that such export and import between two States cannot be enquired into by the Excise Department also holds no good, inasmuch, as they failed to disclose the relevant queries as regards the batch numbers and as to under what provision they have exported the IMFL to the other State etc. The articles seized have no expiry date and as such, there is no scope for decay of the same and the investigation should be carried out to arrive at a logical conclusion. Release of seized articles may hamper the investigation and the learned trial Court has rightly rejected the prayer for release of the articles.

20. The revision petition stands dismissed accordingly.

JUDGE

Comparing Assistant