Sandeep Tewari vs The State Of Bihar Through The ...
2022 Latest Caselaw 3123 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Criminal Writ Jurisdiction Case No.795 of 2021
       Arising Out of PS. Case No.-123 Year-2021 Thana- KISHANGANJ District- Kishanganj
     ======================================================

SANDEEP TEWARI S/o Late Suresh Tewari Resident of House No.- B-55, Air Base Colony, Near Brahmand Ashram, Uliyan, Kadma, East Singhbhum, Jharkhand- 831005 ... ... Petitioner/s Versus

1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRT., REGST., EXCISE AND PROHIBITION, GOVT. OF BIHAR PATNA, BIHAR

2. THE DISTRICT MAGISTRATE, KISHANGANJ BIHAR

3. THE SUPERINTENDENT OF POLICE, KISHANGANJ BIHAR

4. THE INSPECTOR CUM STATION HOUSE OFFICER, KISHANGANJ POLICE STATION, KISHANGANJ BIHAR ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Satyabir Bharti, Advocate Ms. Prachi Pallavi, Advocate For the Respondent/s : Mr. P.K. Verma, AAG 3 Mr. Suman Kumar Jha, Ac to AAG 3 ====================================================== CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT Date : 22-06-2022 Heard learned counsel for the petitioner and learned

Additional General no. 3 for the respondents.

The petitioner has preferred this writ application for

quashing the FIR instituted vide Kishanganj P.S. Case no. 123

of 2021 dated 13.3.2021 registered under sections 272, 273 and

120B of the Indian Penal Code and sections 30(a) and 41(1) of

the Bihar Prohibition and Excise Act, 2016, for directing the

respondents to release the tanker lorry bearing registration no.

NL01K9511 along with 2500 litres of extra neutral alcohol

('ENA' in short) loaded on it seized in connection with

Kishanganj P.S. Case no. 123 of 2021 and to pass other order or

orders as the Court may deem fit in the facts of the case. Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

The prosecution case based on the self statement of

Ashwani Kumar, Police Inspector-cum-SHO, Kishanganj

recorded on 13.3.2021 at 10 am is that at 7.15 am the same

morning secret information was received that a tanker lorry

vehicle bearing registration no. NL01K9511 carrying spirit for

preparation of liquor was going towards Purnia. Giving

information to the Senior Police Officers the informant reached

the Bir Kunwar Bus Stand at Kishanganj at about 9.45 am. He

saw the tanker lorry bearing registration no. NL01 K9511 and

signaled the driver to stop. On inquiry from the driver of the

vehicle namely Md. Mannan, he disclosed that there was a total

of 25000 litres of spirit in the tanker lorry meant for preparation

of liquor. He was carrying the same from Bhutan and was taking

the same to Muzaffarpur. No documents were produced by the

driver. It is stated that on inquiry it transpired that the digital

lock on the vehicle was open. The informant states that on the

digital lock on the same being open, it clearly showed the

intention of the owner of the tanker lorry that he intended to sell

the same in the State of Bihar. The same was a cognizable

offence in view of the complete prohibition of liquor in the State

of Bihar. The driver of the vehicle was arrested and a seizure list

prepared. On the basis of the self statement of the informant FIR Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

being Kishanganj P.S. Case no. 123 of 2021 was registered on

13.3.2021 under sections 272, 273 and 120B of the Indian Penal

Code and sections 30(a) and 41(1) of the Bihar Prohibition and

Excise Act, 2016.

The case of the petitioner in brief is that the petitioner is

the owner of the tanker lorry which was hired for transportation

of 25000 litres of ENA from Bhutan Centennial Distillery, an

undertaking of the Royal Government of Bhutan to M/s.

Bottlers, Una, Himachal Pradesh. The statutory permit, pass

and invoice on the strength of which the consignment of ENA

was being transported have been brought on record as annexures

to the writ petition. The attached permit would reveal that the

consignment was loaded on 11.3.2021 at Gelephbu, Bhutan and

in view of the prohibition of consuming liquor in the State of

Bihar a long route was prescribed intentionally avoiding the

State of Bihar. However, the vehicle could not avoid the chicken

neck area in the district of Kishanganj in the State of Bihar

while crossing Baro Bisha in West Bengal and there is no

alternate route for the same. It is further stated that as the

vehicle was seized in the morning of 13.3.2021 and a digital

lock had been affixed by the government of West Bengal, there

was neither requirement to affix another lock and it was not Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

possible to remove the affixed digital lock as it was to be

removed in Asansol, West Bengal. It is stated that when the

vehicle entered Kishanganj in Bihar the agent appointed by the

State of Bihar asked the driver to remove the digital lock of

West Bengal and to affix his digital lock to which the driver did

not agree and he stated that since the digital lock was already

affixed, it cannot be removed by him. The agent complained to

the SHO, Kishanganj Police Station who making false and

frivolous allegations lodged the FIR.

It is submitted by learned counsel appearing for the

petitioner that the consignment of ENA being transported not

being an intoxicant or liquor, the petitioner cannot be prosecuted

under section 30(a) of the Bihar Prohibition and Excise Act,

2016 (hereinafter referred to as 'the Act') and learned counsel in

support of his contention relies on the judgment in the case of

Bihar Distillers and Bottlers Pvt Ltd vs. State of Bihar (2017 (2)

PLJR 818). Learned counsel further submits that section 14 of

the Act having been declared to be unworkable in absence of

any corresponding rules having been framed and as held in the

case of CTI Infrastructure Pvt Ltd vs. the State of Bihar (2019

(3) BLJ 844), the petitioner cannot be prosecuted for violation

of section 14 of the Act which remains unworkable till Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

enactment of the rules on 27.9.2021. It was submitted that

section 30(a) read with section 14(2) of the Act makes illegal

transportation of wine or liquor in violation of the provisions of

the Act, Rules and the notifications framed there under as

punishable and since the consignment in question is ENA which

is not an intoxicant, the same would not be applicable. The

petitioner cannot be prosecuted for violating an unworkable

provision. The argument that the FIR discloses that the driver

did not produce any document in relation to the consignment

has no basis. No document was produced relates only to non-

affixation of digital lock /transit permission. Only police

officials were made witnesses. It was finally submitted that

sections 272 and 273 of the Indian Penal Code has no

application in the facts of the present case.

The case of the respondents in brief is that on having

received secret information about a tanker lorry carrying spirit

for making wine going towards Purnia, the vehicle in question

was stopped and searched. 25,000 litres of spirit was found for

which the driver did not produce any documents. He disclosed

that the lorry contained spirit for making liquor and the same

was being carried from Bhutan to Muzaffarpur. Thus, the FIR

was registered as stated above. It was submitted that section Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

14(2) of the Act provides that if any consignment of liquor or

intoxicants is being transported by road from a place outside the

State of Bihar to another such place and the vehicle carrying the

consignment passes through the territory of the State, the driver

or any other person in-charge of the vehicle shall obtain transit

permission in the prescribed manner from the authority of the

first check post falling enroute after entry into the State and

shall surrender the same transit permission to the authority of

the last check-post before leaving the State and in the event of

failure to do so within the stipulated hours of leaving the first

check-post falling enroute, it shall be deemed that liquor or

intoxicants so transported have been sold or disposed off by the

owner or the person-in-charge of the vehicle within the State of

Bihar. The State of Bihar vide Gazette (Extra Ordinary) no.

1234 dated 21.12.2015, in clause 2 (gha)(v) has prescribed the

procedure of digital lock which was not completed by the

petitioner. In case of non-compliance with the provisions of

sections 14(2) and 14(3) of the Act, the driver may also be

prosecuted under section 30 of the Act. Section 56 of the Act

prescribes the things liable for confiscation which includes the

vehicle used for carrying the intoxicant or liquor. On

investigation the case was found to be true for filing charge Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

sheet and proposal for confiscation sent to the District

Magistrate, Kishanganj. The seized liquor was destroyed as per

law. The 2015 policy referred to above provides for putting of

digital lock at the entrance check post in the State and maximum

transit permit of 24 hours duration to exit the State with further

provision that the digital lock shall be opened at the exit check

post. Besides, the movement is also to be covered by the GPS

system.

It was further submitted by learned Additional Advocate

General no. 3 appearing for the State that the vehicle in question

which was seized did not contain ENA but contained rectified

spirit which is defined under section 2 (60) of the Act which

states that rectified spirit means un-denatured alcohol, including

absolute alcohol, extra neutral alcohol and alcohol derived from

malt as may be specified by the BIS standard. Further section

2(2) of the Act defines Alcohol to mean ethyl Alcohol having a

colorless volatile and flammable organic liquid which is

produced by a natural or yeast fermentation of sugar and is

intoxicating constituent of wine, beer, spirits and other alcoholic

beverages, and is also used as an industrial solvent and as fuel.

It was submitted that alcohol includes all and from the lab report

(Annexure-F to the supplementary counter affidavit) the sample Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

was analyzed and found to be rectified spirit. It was further

submitted that the route map which is Annexure-3 to the petition

should be strictly construed and the same does not contain any

area of the State of Bihar. As per the contents of the FIR, the

excise permit as contained therein and which contained the

transit route to the destination was not produced before the

police authority. Even if the contention of the petitioner was to

be accepted that there was no alternative route and the

consignment had to cross the area in the District of Kishanganj

in the State of Bihar, as per section 14(2) of the Act the driver or

the person in-charge of the vehicle was required to obtain transit

permit at the first check post in the State of Bihar and as per the

2015 New Excise Policy published in the Bihar Gazette (Extra

Ordinary) on 1.12.2015, the vehicle was required to have a

digital lock at the entrance check post which was to be removed

at the exit check post with the maximum transit permit of 24

hours duration, the movement of the vehicle being monitored by

the GPS system. It was submitted that from the FIR it would

transpire that the digital lock on the vehicle was open, at the

time of checking, no route permit was shown, no documents

were produced before the informant and as per the driver the

lorry contained spirit for making of liquor and the goods were Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

to be delivered in Muzaffarpur. It was submitted that the facts

which are disputed by the petitioner cannot be decided in the

instant petition. In the facts of the instant case there is no

applicability of the judgments of this Court in the case of Bihar

Distillery and Bottlers Pvt. Ltd. (supra). On conclusion of the

investigation charge sheet has been submitted in the case against

the driver on 11.5.2021 while the owner of the vehicle has still

not surrendered and is absconding. Cognizance has been taken

and the case is fixed for prosecution evidence in the trial. It was

further submitted by learned Additional Advocate General no. 3

appearing for the State that so far as release is concerned, the

same is not maintainable. In view of section 57 of the Act the

seized spirit has been destroyed and proposal for confiscation

has been sent to the District Magistrate, Kishanganj. Thus, it

was submitted that there being no merit in the instant

application the same be dismissed.

Heard learned counsel for the petitioner and learned

Additional Advocate General no. 3 assisted by Sri Suman

Kumar Jha, learned counsel on behalf of the State.

As per the prosecution case on secret information having

been received about the vehicle in question carrying spirit for

the purpose of preparing liquor, the vehicle was stopped and on Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

checking 25000 litres of spirit was found. The driver of the

vehicle disclosed that he was carrying 25000 litres spirit for

preparing liquor from Bhutan and the same was to be delivered

at Muzaffarpur. The driver did not produce any documents with

respect to the same. The informant further states that the digital

lock was open. Thus, it was stated that 25000 litres of spirit

meant for preparing liquor was carried in the State of Bihar for

being delivered at Muzaffarpur clearly showed the intention of

the driver and owner of the vehicle that they intended to sell the

same in complete violation of the Prohibition laws effective in

the State of Bihar and it was a cognizable offence. Here itself it

would be relevant to point out that the Act which came into

effect from the date of its publication in the Bihar Gazette (Extra

Ordinary) no. 805 dated 2.10.2016 provides for complete

prohibition of liquor and intoxicant in the territory of the State

of Bihar and for matters connected there with or incidental

thereto.

The Hon'ble Supreme Court in the case of State of

Haryana vs. Bhajanlal (AIR 1992 SC 604) held as follows :

"102. In the back drop of interpreta-

tion of various relevant provisions of the Code of Criminal Procedure under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

the extraordinary power under Article 226 or the inherent powers under Sec-

tion 482 of the code which we have ex-

tracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice, making it clear that it may not be possi-

ble to lay down any precise, clearly de-

fined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercise :

(1) Where the allegations made in the first information report or the com-

plaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any of-

fence or make out a case against the accused.

(2) Where the allegations in the first in- formation report and other materials, if any, accompanying the FIR do not dis-

close a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except un-

der an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allega-

tions made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable of-

Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

fence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec-

tion 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and in-

herently improbable on the basis of which no prudent person can ever reach a just conclusion that there is suf- ficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is insti-

tuted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing effica-

cious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is mali-

ciously instituted with an ulterior mo-

tive for wreaking vengeance on the ac-

cused and with a view to spite him due to private and personal grudge."

In the case of Pratibha Rani vs. Suraj Kumar & Anr

[(1985) 2 SCC 370] the Hon'ble Supreme Court held as

follows :

"59....it is well settled by a long course of decisions of this Court that for the purpose of exercising of its powers under Section 482 CrPC to quash a FIR or a complaint the High Court would have to proceed entirely Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations."

In the case of Superintendent of Police, CBI and Ors vs.

Tapan Kumar Singh [(2003) 6 SCC 175] the Hon'ble Supreme

Court held as follows :

"20. It is well settled that a First Information Report is not an en- cyclopedia, which must disclose all facts and details relating to the of- fence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his as- sailant. He may not even know how the occurrence took place. A first in- formant need not necessarily be an eye witness so as to be able to dis- close in great details all aspects of the offence committed. What is of sig- nificance is that the information given must disclose the commission of a cognizable offence and the informa- tion so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been commit- ted. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investi- gation. At this stage it is also not nec-

Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

essary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the infor-

mation. Similarly, even if the informa-

tion does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The informa-

tion given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take ac-

tion in accordance with law. The true test is whether the information fur-

nished provides a reason to suspect the commission of an offence, which the concerned police officer is em-

powered under Section 156 of the Code to investigate. If it does, he has no option but to record the informa-

tion and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the ques-

tion whether the report discloses the commission of a cognizable offence.

Even if the information does not give full details regarding these matters, the investigating officer is not ab-

solved of his duty to investigate the case and discover the true facts, if he can."

In the case of Neeharika Infrastructure Pvt Ltd vs. the Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

State of Maharastra and Ors. [(2021) SCC online SC 315] the

Hon'ble Supreme Court while dealing with the question as to

under what circumstances the High Court would be justified in

passing an interim order of stay of investigation and/or 'no

coercive steps to be adopted', during pendency of the quashing

petition under section 482 Cr.P.C or under Article 226 of the

Constitution of India and in what circumstances the High Court

would be justified in passing the order of not to arrest the

accused proceeded to conclude in paragraph no. 80 as follows :

"ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cog- nizable offence or offence of any kind is disclosed in the first informa- tion report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspec- tion, as it has been observed, in the 'rarest of rare cases (not to be con- fused with the formation in the con- text of death penalty).

v) While examining an FIR/com- plaint, quashing of which is sought, the court cannot embark upon an en- quiry as to the reliability or genuine- ness or otherwise of the allegations made in the FIR/complaint;

xii) The first information report is not an encyclopedia which must dis-

Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

close all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not de-

serve to be investigated or that it amounts to abuse of process of law.

After investigation, if the investigat- ing officer finds that there is no sub-

stance in the application made by the complainant, the investigating officer may file an appropriate re-

port/summary before the learned Magistrate which may be considered by the learned Magistrate in accor-

dance with the known procedure;"

As per the law settled by the Hon'ble Supreme Court the

facts/allegations stated in the fir are to be accepted as true and

the allegations made in the fir are to be taken at their face value

and accepted in their entirety and in case the uncontroverted

allegations made therein disclose the commission of an offence,

the fir cannot be quashed.

So far as the facts of the instant case is concerned, as per

the allegations in the FIR, the driver of the vehicle in question

disclosed that he was carrying in the tanker lorry 25000 litres of

spirit meant for manufacture of liquor to be delivered at

Muzaffarpur. He did not produce any documents with respect to Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

the same. So far as the judgment in the case of Bihar Distillers

and Bottlers Pvt Ltd (supra) is concerned, the challenge therein

was to the constitutional validity of certain provisions under the

Act. Thus, the Court proceeded to hold in paragraph no. 86 of

the judgment as follows :

"86. Accordingly, we allow these petitions to the extent of holding that the definition of intox- icant' as contained in section 2 (40)(ii) of the Bihar Prohibition and Excise Act, 2016 so far as it includes ENA within the ambit of the word, intoxicant' is ultra vires to the Constitution and the IDR Act and to that extent the definition is struck down and in view of this, the provisions of Sections 13, 23 and 24 will not have any application and the meaning of the word ‗in- toxicant' appearing in Section 13 has to be read accordingly. That apart, we further set aside the No- tification dated 24th January, 2017 issued by the State Government so far as it prevents or denies the right of renewal of an existing li- cense for production of ENA from grain based distilleries. To that ef- fect, the Notification is struck down and set aside and the petitioners' case for renewal of license is di- rected to be considered by the State Government in accordance with the requirement of law."

In the opinion of the Court, the ratio of the judgment in

the case of Bihar Distiller and Bottlers Pvt Ltd (supra) is of no Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

assistance to the petitioner in the instant application which is for

quashing of the FIR.

It may be stated here that even accepting the contentions

made on behalf of the petitioner that he had no alternate route

and the vehicle had necessarily to cross through the district of

Kishanganj in the State of Bihar in between Baro Bisha in West

Bengal and Dalkhola in West Bangal, nevertheless besides this

contention being a defence which may be raised by the

petitioner at an appropriate stage, the petitioner could not be

permitted to violate the New Excise Policy, 2015 of the

Government of Bihar as published in the Bihar Gazette (Extra

Ordinary) no. 1342 Patna 21.12.2015 (Annexure-D to the

supplementary affidavit) Clause 3(2)(v) and (vi) of which

provides that a digital lock would be placed on the vehicle

carrying spirit or foreign liquor or IMFL at the first check post

inside the State of Bihar which will be opened at the last check

post within the State of Bihar and the period given to transit the

State would be a maximum of 24 hours.

In view of the judgments of the Hon'ble Supreme Court

referred to herein above including the judgments in the case of

Pratibha Rani (supra), Bhajanlal (supra), Tapan Kumar Singh

(supra) and M/s Neeharika Infrastructure Pvt Ltd (supra), the Patna High Court CR. WJC No.795 of 2021 dt.22-06-2022

Court finds merit in the submissions made by the learned

Additional Advocate General no. 3 that at the time of

considering the prayer of the petitioner for quashing of the FIR,

the contents of the allegations contained therein have to be

accepted as true and so far as the points being raised on behalf

of the petitioner is concerned, they are disputed questions of

fact, the defence being raised cannot be considered at this stage

and the petitioner may raise the same at an appropriate stage in

course of trial.

In view of the facts and circumstances stated herein above

specially the contents of the FIR, quashing of which has been

prayed for on behalf of the petitioner, together with the ratio of

the judgments of the Hon'ble Supreme Court referred to herein

above, in the opinion of the Court the petitioner has not made

out any case for quashing of the FIR and the Court finds no

merit in the application. The Court also does not find merit in

the consequential prayers made on behalf of the petitioner.

The application is dismissed.

Prakash/-                                                            (Partha Sarthy, J)
AFR/NAFR
CAV DATE
Uploading Date
Transmission Date