M/S Krimpi Distilleries vs State Of Gujarat
2022 Latest Caselaw 9052 Guj

  R/CR.MA/13501/2019                                       ORDER DATED: 13/10/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    R/CRIMINAL MISC.APPLICATION NO. 13501 of 2019
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                M/S KRIMPI DISTILLERIES
                         Versus
                    STATE OF GUJARAT
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Appearance:
MR.NANDISH H THACKAR(7008) for the Applicant(s) No.
1,2
MS M D MEHTA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2,3
=====================================================
  CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 13/10/2022
                                  ORAL ORDER

1. Heard Mr. Nandish H. Thackar, the learned advocate appearing for the applicants and Ms. Maithili D. Mehta, the learned Additional Public Prosecutor appearing for the respondent No.1 - State.

2. Though served, respondents Nos.2 and 3 have chosen not to appear before the Court.

3. By way of the present application the applicant herein has invoked Section 482 of Criminal Procedure Code, 1973 praying for quashing of FIR being C.R. No.III-12 of 2010 registered with Valsad City Police Station, Valsad, dated 01.02.2010 under the provisions of Sections 336, 273, 284, 468, 471, 474, 477(B), 120(B), 114 of Indian Penal Code and Sections 66(1)B, 65(B),

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(C), (E), (F), 81 and 83 of the Bombay Prohibition Act, 1949 and further proceedings pursuant thereto qua the applicant.

4. On 01.02.2010, the respondent No.2 herein filed a complaint at about 02.15 hours; at Valsad City Police Station, District : Valsad, against twenty accused persons named therein. The applicant herein is accused No.4 in the said complaint. It is stated by the complainant that he was given the responsibility of finding and controlling serious organized crime at LCT. Further, Valsad being the adjoining to the union Territory of Dadra, Daman and Liquor manufactured in Daman have been smuggled in Gujarat State through the Valsad district and that it is the prime responsibility of the Valsad Police Station to prevent the same.

4.1 It is further stated that Valsad District Police registered 6391 cases in the year 2009, under the Prohibition Act and arrested 6642 accused persons with muddamal of 8,17,564 bottles of IMFL (liquor) manufactured in Daman worth Rs. 6,07,97,225/- alongwith 447 vehicles amounting to Rs.7,81,25,500/-. It is further stated that to unearth the organized crime of smuggling of liquor from Daman into Gujarat check of IMFL bottles found in different offences was carried out and on comparing the

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batch number and date and other details marked on bottles and on boxes alongwith the record of Excise Department, Daman discrepancy of number of manufactured stock and other details were found and that they did not match and therefore, the police authority came to conclusion that according to the reply and record of Excise Department, Daman, various Distilleries, their owners and directors and wholesale license holder (for the sale of liquor in Daman), are name in the FIR had cheated the Excise Department of Daman.

4.2 It is alleged that the modus operandi of Distillery's of Daman for such type of unlawful production and smuggling of IMFL liquor was found out from the laptop and pen-drive recovered from one of the accused viz. Kishordas Vitthaldas Prajapati, who had been arrested in connection with one of prohibition offence being registered at Umbergaon Police Station, C.R. No.III-285 of 2009. It is stated that going through the data stored in the said pen drive and from the accused, it come to surface that most of the distillery manufacture unlawfully huge stock of liquor and sale it through whole sale license holders and get it smuggled it in Gujarat.

4.3 That the illegal production of IMFL by

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different distilleries of Daman and which was not mentioned in the record books of Distilleries of Daman was purchased by one Pramod Tandel and entire information of the stock was mentioned in the data stored in pen drive mentioning the name of the manufacturer (distillery); number of boxes and amount; for the month of October 2009 to December 2009. It is further alleged that the above named accused person viz. Pramod Tandel had received the entire stock from different distilleries and had smuggled through different Bar/wine shop owners (named as accused persons in the FIR) and that is how the accused persons had further sold it to the known bootleggers in Gujarat for their economic gains and had earned huge profit, by well planned and organized modus operandi and network and had smuggled huge quantity of IMFL in Gujarat and had thereby committed offences under the provisions of the Bombay Prohibition Act, 1949.

4.4 It is further alleged that the accused persons had helped each other by mentioning wrong batch number during the production of IMFL/alcoholic drink and had manufactured it after giving dummy batch numbers and thereby tried to escape from the control of the Daman Excise Department and Gujarat Government and

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Central Government by showing false record and by not paying Excise duty and by not conducting any required test for the said productions by the concerned authority and thereby, though being fully aware and with knowledge that it may be dangerous for human consumption and the same may affect the health of the people who consume the same and thereby all the accused persons are in the business of black money by smuggling liquor in Gujarat State and had earn huge black money and had committed offence under the provisions of Sections 336, 273, 284, 468,471, 474, 477(B), 120(B) and 114 of Indian Penal Code and Sections 66(1)B, 65(B), (C),(E), (F), 81 and 83 of the Bombay Prohibition Act, 1949.

4.5 The investigation was carried out by the investigation officer and charge-sheet came to be filed against three accused persons and other accused person's was shown in column No.2 of the charge-sheet dated 18.07.2010. That the applicant herein - accused No.4 came to be enlarged on anticipatory bail on 01.11.2010.

5. Mr. Nandish Thackar, the learned advocate appearing for the applicants submitted that the applicant herein has been exonerated by the Competent authority from the charges levelled against the applicant herein for the same period as has been alleged in the First Information

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Report dated 01.02.2010. The order exonerated the applicant herein pursuant to the Show Cause Notice cum Demand Notice is dated 26.12.2011, which is duly produced on record at page 75. The relevant paragraph of the said order dated 26.12.2011 reads thus (page 117) :-

"For want of any legal, tangible and concrete evidence, the duty demand of Rs.Rs.70,70,86,534/- (Rupees Seventy Crores Seventy Lakhss Eighty Six Thousand Five Hundred Thirty Four Only) raised by the Excise Department, Daman against the Notice is not sustainable and set aside. Therefore, the Show Cause Notice dated 22/02/2010 and 23/02/2010 and the subsequent Corrigendum dated 12/06/2010 are dropped."

6. The said order came to be assailed by the competent authority by filing an appeal which came to be rejected by the Appellate Authority by order dated 10.11.2020 being Appeal No.10 of 2014. The relevant paragraph Nos. 128 and 129 at page 96 of the said appeal reads thus:-

"128. I have gone through the records of the case and heard the ld. Advocates for the Appellants, ld. Advocates for the Respondents and both parties. Considering overall facts and circumstances of the case in the light of the arguments of both the parties, documents and records produced by them, I am of the considered view that:-

i) Appeals do not state any valid

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grounds whatsoever, either on facts or in law that necessitate revisiting of the well-reasoned orders dated 26/12/2011 passed by the Respondent No.3, ld. Commissioner of Excise.

ii) Appeals filed are contrary to the self-admitted position of the Daman Administration in their communications to the Parliamentary Committee which is recorded in the 144th Report presented to the Rajya Sabha that, there existed no basis in fact or in law to justify the differential duty demand raised in Show Cause Notices.

iii) The FIR registered by Valsad Police, Gujarat which forms the predominant basis for issuing the Corrigendum has been set aside by an Order of the Hon'ble High Court, Gujarat.

(iv) The allegation of clandestine removal of goods is without evidence as the entire business is highly regulated.

v) The reports of the forensic expert appointed by the Appellants seems unscientific and not supported by technical literature.

vi) Notwithstanding repeated opportunities afforded to the Daman Excise Department, no corroborative evidence whatsoever as required in terms of the well settled law to support the allegation of clandestine removal has been adduced.

129. The Appellants has not discharged their onus as per settled law and not stated any valid ground whatsoever that

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necessitate revisiting of the well- reasoned and detailed orders dated 26/12/2011, passed by the Commissioner (Excise). Considering all the aforesaid circumstances, it cannot be said that there is any reliable material on record to show that Respondents have evaded the differential amount of excise duty between the two products, in such circumstances the orders dated 26/12/2011, passed by the Commissioner (Excise) cannot be faulted and hence, the Appeals deserve to be dismissed and the order dated 26.12.2011, passed by the Commissioner of Excise, Daman is hereby upheld."

7. Mr. Nandish Thackar, the learned advocate appearing for the applicants has also placed on record the order passed by the Income Tax Appellate Tribunal, Surat wherein the appeal by the department has been rejected by order dated 07.03.2022 being I.T.A. No.47/SRT/2017. The operative part of the said order of Para 42, at page 122 reads thus :-

"42. In the result, appeals in IT(SS)a Nos.01 to 06/SRT/2017 and ITA No.47/SRT/2017 filed by the Revenue are dismissed. Ground No.1 in CO. Nos. 02 to 08/SRT/2017 filed by assessee is dismissed whereas Ground No.2 in CO. Nos. 02 to 08/SRT/2017 are allowed."

8. Placing reliance on the same, Mr. Nandish Thackar, the learned advocate appearing for the applicants submitted that the applicant has been exonerated from the departmental proceedings,

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which is undisputedly with regard to the same time period for which the FIR has been lodged against the applicant herein. In view of above, Mr. Nandish Thackar, the learned advocate appearing for the applicants submitted that the impugned FIR being C.R. No.III-12 of 2010 registered with Valsad City Police Station, Valsad, dated 01.02.2010 is required to be quashed and set aside. Mr. Nandish Thackar, the learned advocate appearing for the applicants placing reliance on the order passed by the Co- ordinate Bench of this Court in Criminal Misc. Application No.12446 of 2018 submitted that the accused Nos.1 and 2 of the same FIR/complaint came to be quashed qua accused No.1 and 2 qua the same First Information Report, for the reasons considering the same aspect by order dated 31.08.2018 passed in Criminal Misc. Application No.12446 of 2018.

9. Ms. Maithili D. Mehta, the learned Additional Public Prosecutor appearing for the respondent - State fairly submitted that the applicants have been exonerated from the charges levelled against applicants and case of the applicants can to be said to be at par with accused Nos.1 and 2.

10. Having heard the learned advocates appearing for the respective parties, it is

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apposite to refer to the order dated 31.08.2018 passed in Criminal Misc. Application No.12446 of 2018, wherein relevant paragraph Nos.5 to 9, reads thus :-

"5. Having heard learned advocates appearing for the respective parties, considering the facts and circumstances arising out of the present application, the decisions relied by both the sides, following salient points have emerged:

i) the impugned FIR is of 2010, however, till date no chargesheet is filed by the investigating agency qua the present applicants;

ii) the applicants are having licensed to manufacture Country Liquor (CL) and Indian Made Foreign Liquor (IMFL) within the Union Terrotory of Daman and Diu and are in such business since last about 50 years, having annual sale in crores. The company is having 1500 workmen in direct recruitment and is an ISO 9001:2008 and ISO 14001:2004 certified company;

iii) the applicants are exonerated in the proceedings before the Excise authority. If the contents of FIR are perused, the details of goods allegedly removed clandestinely during the period October 2009 to January 2010 have been given, which, if compared to the show-cause notice issued by the Excise Department dated 07.06.2010, same goods are mentioned.

The proceedings undertaken in pursuant to the said show-cause notice is culminated in favour of the applicants

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by order dated 26.12.2011 and the applicants were exonerated in the same. Relevant portion from operative part of the said order reads as under:

"For want of any legal, tangible and concrete evidence, the duty demand of Rs.31,05,17,540/- (Rupees Thirty One Crores Five Lakhs Seventeen Thousand Five Hundred Forty Only) and Rs.141,62,98,562/- (Rupees One Hundred Forty One Crores, Sixty Two Lakhs, Ninety Eight Thousand, Five Hundred and Sixty Two only) raised by the Excise Department, Daman against the Noticee is not sustainable and set aside. Therefore, the Show Cause Notices dated 16/02/2010 and 22/02/2010 and the subsequent Corrigendum dated 07/06/2010 are dropped."

iv) the applicants are also exonerated in the proceedings before the VAT authority by order dated 26.03.2013 passed by the Deputy Commissioner (VAT), Daman by which, the proceedings against the applicants pursuant to show-cause notices issued for the years 2006-07, 2007-08, 2008-09 and 2009-10 were dropped.

v) even, by order dated 12.04.2012 in the proceedings initiated in pursuance to Show-cause notice cum Suspension order vide No. 3/586/EXC-ADM/2009-

10/831 dated 15.02.2010 against above

in the impugned FIR) the same was revoked with immediate effect and he was allowed to conduct business against the licence hold by him. Thus, the original accused is also

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exonerated by the Excise Department of Daman in the proceedings before it;

vi) indisputably, even after lapse of these many years, the chargesheet is yet not filed in the case on hand against the present applicants for which, no satisfactory explanation is forthcoming on record on the part of the investigating agency.

vii) no prima facie, material appears to have been forthcoming on record to implicate the present applicants in the crime in question;

viii) the implication of the present applicants appears to be on presumption and surmises without there being any cogent and material evidence.

5.1 All the above points are suggestive of the fact that for the same goods, for which the applicants are alleged to have been indulged in illegal activities as per the impugned FIR, the concerned authority in the Central Government viz. the Excise Department, after careful consideration of all the aspects of the matter, verifying the relevant material and documents, dropped the proceedings against the applicants by passing reasoned order. Even the VAT authorities have also dropped the proceedings against the applicants. Moreover, the original accused No. 7 in the present FIR namely Pramod Tandel, who alleged to have played active role in the offence, the authority concerned has also revoked the Suspension Order to run the licensed wine shop and thereby, dropped the proceedings qua him

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as well as his wife also. The most important aspect of the matter is, the offence is of 2010 and yet the investigating agency has not filed the chargesheet against the present applicants.

5.2 In this regard, it would be beneficial to refer to the decision rendered by the Hon'ble Apex Court in the case of Radheshyam Kejriwal (supra), relevant of which, is extracted hereunder:

"26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B. N. Kashyap the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evidence from the following passage of the said judgment:

"...I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions in this case. When that question arises for determination, the

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provisions of Section 41 of the Evidence Act will have to be carefully examined."

5.3 At this juncture, it would also be beneficial to refer to the decision of the Hon'ble Apex Court in the case of Vakil Prasad Singh (supra), relevant of which, is extracted hereunder:

"18. Time and again this Court has emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the Cr.P.C. (In articular, Ss. 197, 173, 309, 437(6) and 468 etc.) and the constitutional protection enshrined in Art. 21 of the Constitution. Inspired by the broad sweep and content of Art. 21 as interpreted by a seven-Judge Bench of this Court in Maneka Gandhi V/s. Union of India & Anr., 1978 1 SCC 248, in Hussainara Khatoon & Ors. V/s. Home Secretary, State of Bihar, 1980 1 SCC 81 this Court had observed that Art. 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to the procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be 'reasonable, fair and just';

and therefrom, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair and just' and it would fall foul of Art. 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental

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right to life and liberty enshrined in Art. 21.

xxx

24. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Art. 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case.

xxx

30. Thus, on facts in hand, in our opinion, the stated delay clearly violates the constitutional guarantee of a speedy investigation and trial under Art. 21 of the Constitution. We feel that under these circumstances, further continuance of criminal proceedings, pending against the appellant in the court of Special Judge, Muzaffarpur, is unwarranted and despite the fact that allegations against him are quite serious, they deserve to be quashed."

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5.4 Even, in the case of Pankaj Kumar (supra), the Hon'ble Apex Court has held as under:

"17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Art. 21 of the Constitution. This right is applicable not only to the actual proceedings in a court but also includes within its sweep the preceding police investigation as well. The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case, whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial.

18. Tested on the touchstone of the broad principles, enumerated above, we are of the opinion that in the instant

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case, appellant's constitutional right recognised under Art. 21 of the Constitution stands violated. It is common ground that the First Information Report was recorded on 12.05.1987 for the offences allegedly committed in the year 1981, and after unwarranted prolonged investigations, involving afore-stated three financial irregularities; the charge sheet was submitted in Court on 22.02.1991. Nothing happened till April, 1999, when the appellant and his deceased mother filed criminal writ petition seeking quashing of proceedings before the trial court. Though, it is true that the plea with regard to inordinate delay in investigations and trial has been raised before us for the first time but we feel that at his distant point of time, it would be unfair to the appellant to remit the matter back to the High Court for examining the said plea of the appellant. Apart from the fact that it would further protract the already delayed trial, no fruitful purpose would be served as learned Counsel for the State very fairly stated before us that he had no explanation to offer for the delay in investigations and the reason why the trial did not commence for eight long years.

Nothing, whatsoever, could be pointed out, far from being established, to show that the delay was in any way attributable to the appellant. Moreover, having regard to the nature of the accusations against the appellant, briefly referred to above, who was a young boy of about eighteen years of age in the year 1981, when the acts of omission and commission

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were allegedly committed by the concerns managed by his parents, who have since died, we feel that the extreme mental stress and strain of prolonged investigation by the Anti Corruption Bureau and the sword of damocles hanging perilously over his head for over fifteen years must have wrecked his entire career. Be that as it may, the prosecution has failed to show any exceptional circumstance, which could possibly be taken into consideration for condoning the prolongation of investigation and the trial. The lackadaisical manner of investigation spread over a period of four years in a case of this type and inordinate delay of over eight years (excluding the period when the record of the trial court was in the High Court), is manifestly clear. Thus, on facts in hand, we are convinced that the appellant has been denied his valuable constitutional right to a speedy investigation and trial and, therefore, criminal proceedings initiated against him in the year 1987 and pending in the court of Special Judge, Latur, deserve to be quashed on this short ground alone."

5.5 Thus, the facts of the present case if are related to the above-referred observations, the said observations appear to be precisely applicable to the case on hand. The applicants are facing criminal proceedings which were initiated in the year 2010 in which, even the charge-sheet is not filed till date. Further more, for the same set of facts, the applicants are exonerated by the Excise Authorities as well as the VAT authorities and the proceedings before those authorities have been dropped. Such proceedings qua the

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accused No. 7 - Pramod Tandel and his wife are also dropped. However, the sword of damocles is hanging since long upon the applicants, which in the considered opinion of this Court quite against the tenor of Article 21 of the Constitution of India. Besides, the learned Additional Public Prosecutor is also not in a position to show and exceptional circumstances for prolongation of the investigation. Thus, when the valuable right of the applicants is at stake and when the applicants are exonerated in similar proceedings and as observed by the Hon'ble Apex Court, such determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case, this Court is of the opinion that present application deserves favourable consideration.

5.6 Last but not the least, this Court has also taken into consideration the decisions rendered in the cases of Gian Singh Vs. State of Punjab & Another, reported in (2012) 10 SCC 303, Madan Mohan Abbot Vs. State of Punjab, reported in (2008) 4 SCC 582, Nikhil Merchant Vs. Central Bureau of Investigation & Another, reported in 2009 (1) GLH 31, Manoj Sharma Vs. State & Others, reported in 2009 (1) GLH 190 and Narinder Singh & Others Vs. State of Punjab & Another, reported in 2014 (2) Crime 67 (SC). It appears that further continuation of criminal proceedings in relation to the impugned FIR against the applicants would be unnecessary harassment to the applicants and hence, to secure the ends of justice, the impugned FIR is required to be quashed and set aside in exercise of powers conferred under Section 482 of the Code.

6. Resultantly, this application is

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allowed and the impugned FIR, as aforesaid, is hereby quashed and set aside qua the present applicants. Consequently, all other proceedings arising out of the aforesaid FIR are also quashed and set aside qua the present applicants. However, it is clarified that quashing of the impugned FIR will not affect the proceedings, if any, before the Enforcement Directorate and the CBI.

7. Rule is made absolute accordingly. Direct service is permitted."

11. At this stage, this Court deems it fit to refer to the ratio as laid down by the Hon'ble Supreme Court in the case of Ashoo Suprendranath Tewari v/s. Deputy Superintendent of Police, EOW, CBI and Another reported in (2020) 9 SCC 636, relevant para-12 reads thus:

"12. After referring to various judgments, this Court then culled out the ratio of those decisions in paragraph 38 as follows:-

"38. The ratio which can be culled out from these decisions can broadly be stated as follows:

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

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(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."

12. Considering the aforesaid ratio as laid down by the Hon'ble Supreme Court, the applicant herein has been exonerated from the departmental proceedings considering the merits and has been held to be innocent, criminal prosecution on the same facts and circumstances against the applicant herein cannot be allowed to continue. Undisputedly, in the facts of the present case, the applicant herein has been exonerated from

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the departmental/disciplinary proceedings initiated against him on merits and accordingly, the case of the applicant herein, would required consideration under Clause 12(7) of the aforesaid ratio as referred herein above.

13. Considering the aforesaid ratio as laid down by the Hon'ble Supreme Court and the order dated 31.08.2018 passed in Criminal Misc. Application No.12446 of 2018 and the facts of the present case, admittedly the applicant herein has been exonerated from charges leveled against him in the departmental proceedings and the present proceedings are also arising out of the same subject matter and for the same time period. The impugned FIR is required to be quashed and set aside. Hence, the same is quashed and set aside, accordingly. Any other proceedings which are arising out the said FIR are consequently quashed and set aside. Other proceedings that may be pending apart from the present dispute if any, be continued.

14. Rule is made absolute. Direct service is permitted. The present application stands allowed.

(VAIBHAVI D. NANAVATI,J) Pallavi