M/S Majhaulia Sugar Industries ... vs The State Of Bihar Principal ...
2023 Latest Caselaw 5418 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.1281 of 2021
     Arising Out of PS. Case No.-230 Year-2020 Thana- MAJHAULIA District- West Champaran
     ======================================================

1. M/S Majhaulia Sugar Industries Pvt. Ltd. having its sugar Mill located at Majhaulia, P.O. and P.S. - Majhaulia, District West Champaran (Bihar), represented through Chief General Manager namely Indeep Singh Bhatia, Son of Jaswant Singh Bhatia, resident of D-140, Sector 122, Noida, Near Raghav School, Noida, Gautam Buddha Nagar, Uttar Pradesh- 201301.

2. Indeep Singh Bhatia (Chief General Manager) Son of Jaswant Singh Bhatia M/S Majhaulia Sugar Industries Pvt. Ltd. Resident of D-140, Sector 122, Noida, Near Raghav School, Noida, Gautam Buddha Nagar, Uttar Pradesh- 201301, Local address at C/o- Majhaulia Sugar Mills, at Majhaulia, P.O.- P.S. - Majhaulia, District - West Champaran.

... ... Petitioner/s Versus

1. The State of Bihar through Principal Secretary, Excise and Prohibition, Government of Bihar, Patna.

2. The Principal Secretary, Excise and Prohibition, Government of Bihar, Patna.

3. The Excise Commissioner, Excise and Prohibition, Bihar, Patna.

4. The Excise Inspector, West Champaran at Betiya

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Ashish Giri, Advocate

Ms. Riya Giri, Advocate

Mr. Sumit Kumar Jha, Advocate

For the Respondent/s : Mr.Vivek Prasad, GP 7

Ms. Supragya, AC to GP 7

Ms. Roona, AC to GP 7

====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA CAV JUDGMENT Date : 19-10-2023

1. The present writ application has been filed for

quashing of the First Information Report bearing Majhauliya Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

P.S. Case No. 230 of 2020 dated 26-04-2020 contained in

(Annexure- 6) registered for the offences under Sections 284,

285, 403, 406, 407, 408, 409, 420 and 34 of the I.P.C. read with

Sections 30 (a), 31 of the Bihar Prohibition and Excise Act

2016.

2. The factual matrix of the case is that the petitioner

no. 1 is a company in the name and style of M/s Majhaulia

Sugar Industries Pvt. Ltd. and the petitioner no. 2 is its Chief

General Manager. The petitioners are holding N.O.C. / license

and have a distillery at Majhauliya, which is engaged in

production of ethanol. The ethanol is being transported by the

petitioners from its distillery to various oil companies through

M/s Indian Tankers Pvt. Ltd. after due verification of G.P.S. and

digital seal / lock. According to the petitioners the electronic

locks are being provided by M/s M.S.D. Telemematrix Pvt. Ltd.

3. On 25-04-2020 a team constituted by the

Superintendent [Excise], East Champaran reached near N.H. 28

and found one tanker near an old hotel bearing Registration No.

UP-53-AT-1786 whose one of the seals from five of its

chambers was found broken, which was being used for

siphoning of ethanol in a pick- up van bearing Registration No.

BR-02-GA-1445. Upon search 200 liters container fully loaded Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

with ethanol and another container which was connected

through a pipe having 20 liters of ethanol and 04 empty

containers of 35 liters each were found in the pick-up van. In the

tanker three chambers were found without seal and the chamber

rod was also found not related to the digital lock. Accordingly,

on 26.04.2020, an F.I.R. bearing Excise P.S. Case No. 195 of

2020 was registered on the basis of information given, under

Section 30 (a) (f), 31, 32, 36, 38, 41(1) & 47 of the Bihar

Prohibition and Excise Act, 2016 against eight accused persons

i.e. the owner of the tanker, tanker driver, owner of the pick-up

van etc.

4. Subsequently, one another F.I.R. was registered

bearing Majhauliya P.S. Case No. 230 of 2020 on 26.04.2020

against the petitioners and others for the offences under Sections

284, 285, 403, 406, 407, 408, 409, 420 and 34 of the Indian

Penal Code read with Sections 30 (a) and 31 of the Bihar

Prohibition and Excise Act wherein the allegations are with

regard to several violations / infirmities on the part of the

accused persons due to which illegal business of ethanol was

taking place. The petitioners have filed the present case for

quashing of Majhauliya P.S. Case No. 230 of 2020.

5. It is further case of the petitioners that on getting Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

information about the occurrence dated 25.04.2020 and being

unaware about Majhauliya P.S. Case No. 230 of 2020 the

petitioner no. 2 lodged an F.I.R. bearing Majhauliya P.S. Case

No. 232 of 2020 dated 27.04.2020 for the offences under

Sections 409, 462, 379, 34 of the I.P.C. read with Section 30

(a), 31 of the Bihar Prohibition and Excise Act 2016 against the

transporter i.e. M/s Indian Tankers Pvt. Ltd. and its driver for

causing loss to the tune of Rs. 11,66,287.50/- for their act of

indulgence in illegal siphoning of ethanol

6. Learned counsel for the petitioners contended that

in relation to one occurrence two FIRs have been lodged. The

FIR against the petitioners has been instituted for the offences

for which an FIR filed earlier already existed. The 1 st FIR is

Excise Case No. 195 of 2020 in which petitioners are not

accused and thereafter 2nd FIR came to be lodged vide

Majhauliya PS Case No. 230 of 2020 in which the petitioners

have been made accused for the same facts and occurrence. The

2nd FIR is not maintainable and is violative of Article 21 of the

Constitution of India.

7. He further argued that just because the name of

petitioners came in the process of investigation the Police is not

empowered to lodge another FIR but can include the accused Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

persons in the earlier FIR at the time of filing of charge sheet.

The 2nd FIR is impermissible as it will amount to improvement

of the facts as alleged in the 1 st FIR in respect of an offence

committed in course of same transaction. The continuation of

the 2nd FIR is abuse of the process of law and hence liable to be

quashed. Learned counsel further argued that 2nd FIR under

quashing includes offences under the IPC as well as under the

Bihar Prohibition and Excise Act, 2016 [hereinafter referred to

as the "Excise Act"] and is not maintainable on the ground that

the whole transaction involving production and transportation of

ethanol is governed by the special enactment i.e. Excise Act.

8. Section 30 (f) of the Excise Act is already there in

the 1st FIR. The petitioners have been made accused on the basis

of allegation that the tanker was not locked / sealed by them and

web camera was not working and hence there is connivance of

the petitioners in black marketing but in actuality the sealing of

tanker is the work of Excise Department as per notification

[Annexure- 2 ]. If the ethanol transaction had not caught then

the warehouse would not have been investigated and so the 2 nd

FIR would not have been lodged. The illegal siphoning of

ethanol is which sets the criminal investigation into motion and

the 2nd FIR arose from the 1st FIR as such it does not have its Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

independent stand. He further contends that if the Police had

inspected the warehouse in a separate cause of action then 2 nd

FIR would have been maintainable but the case in hand is that

since there was siphoning of ethanol and in that regard

warehouse was raided and 2nd FIR was lodged which is in

continuation of the 1st illegal act therefore 2nd FIR should not

have been lodged and is fit to be quashed. In support of his

argument he relies upon the judgment of the Hon'ble Apex

Court rendered in Krishna Lal Chawla vs. State of U.P. reported

in (2021) 5 SCC 435; Amitbhai Anilchandra Shah vs. Central

Bureau of Investigation reported in (2013) 6 SCC 348 ;

Babubhai vs State of Gujarat reported in (2010) 12 SCC 254

and T.T. Antony vs. State of Kerala reported in (2001) 6 SCC

181.

9. Per contra, Ms. Supragya, learned AC to GP-7 for

the State argued that there are two FIRs because the cause of

action of both FIRs are different. The informants are different

persons, accused are different individuals and the offences

alleged are different from that of 1 st FIR. The cause of action for

the 1st FIR arose when the accused named in the 1 st FIR were

caught trying to siphon illegal liquor / ethanol from the tankers;

however, the cause of action in the 2 nd FIR arose when the Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

petitioners breached the terms of the license / N.O.C. as well as

subsequent directions with respect to certain provisions to be

made to safeguard ethanol but did not comply with the same.

There is a clear breach of the terms of license agreement and the

subsequent directions issued by the Excise Department viz.

lapses in the installation of "dharmkanta", "CCTV cameras" as

well as "digital locks" were already there i.e. much before the

incident leading to 1st FIR.

10. She further argued that there is no specific bar to

applicability of the provisions of the Indian Penal Code with the

provisions of the Excise Act even if it is a special act. Lastly she

submitted that petitioners will be absolved of all the liabilities

towards the State and the licensing authority if FIR is quashed

and detail investigation is not done on the 2nd FIR which may

lead to larger conspiracy having broader ramifications. The 1 st

FIR covers smaller field on narrow dimension in which ethanol

was being illegally siphoned by tanker owner, tanker driver,

pick up van owner etc. Learned counsel relied upon the

judgments rendered in State (NCT of Delhi ) vs. Sanjay reported

in (2014) 9 SCC 772, Babubhai vs. State of Gujarat reported in

(2010) 12 SCC 254, Nirmal Singh Kahlon vs State of Punjab

reported in (2009) 1 SCC 441, Varshaben Kantilal Purani vs Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

State of Gujarat reported in (2019) 11 SCC 774; Rakesh Kumar

vs. State of Bihar reported in 2022 (3) PLJR 490.

11. I have heard learned counsel for the parties and

have gone through the materials on record. It is not disputed that

two FIRs have been lodged on the same date i.e. 26-04-2020.

The informant of both the FIRs are different persons of different

districts inasmuch as the informant of the 1 st FIR being Excise

PS Case No. 195 of 2020 is one Vijay Kumar Chaudhary,

Inspector (Excise), Sikrahna Region, East Champaran and

informant of the 2nd FIR vide Majhauliya PS Case No. 230 /

2020 is one Raj Kumar Chaudhary, Inspector (Excise), West

Champaran, Bettiah.

12. 1st FIR was lodged inter alia on the fact that on

25-04-2020 the Excise Team at the back side of the old hotel

"Hajar Bis" situated at East Champaran found that seal of one of

the tankers out of five tankers having ethanol stored in it was

broken which was being used for siphoning of ethanol in a pick

up van. 200 liter container fully filed with ethanol and another

container which was connected to a pipe having 20 liters of

illicit ethanol and 04 empty container of 35 liters each capacity

were found in the pick up van. Three chambers were found

without seal and also the chamber rod was found not connected Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

which related to digital lock.

13. The 2nd FIR bearing Majhauliya PS Case No.

230 of 2020 has been lodged on the basis of inspection

conducted on 25/04/2020 in which in the warehouse of the

petitioners- company various irregularities in relation to digital

lock, non availability of CCTV camera near the low meter, non

installation of "dharmakanta", non availability of the connecting

rod and other several irregularities in violation of the condition

of licence / N.O.C. and the circular issued by the Department of

Excise, Government of Bihar were detected. Several

irregularities / illegalities found during the course of inspection

are mentioned in the First Information Report under quashing in

which it has been alleged that the management of

warehouse/company, authorized agency responsible for putting

digital lock and tanker operators deliberately and in connivance

with each other are promoting black marketing of ethyl alcohol /

ethanol.

14. Section 30 of the Excise Act is quoted

hereinbelow for ready reference:-

"30. Penalty for unlawful manufacture, import, export, transport, possession, sale, purchase, distribution, etc. of any intoxicant or liquor.-

Whoever, in contravention of any provision of this Act or of any rule, regulation, order made, notification Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

issued thereunder, or without a valid license, permit or pass issued under this Act, or in breach of any condition of any license, permit or pass renewed or authorisation granted thereunder-

(a) Manufacturers, possesses, buys, sells, distributes, collects, stores, bottles, imports, exports, transports, removes or cultivates any intoxicant, liquor, hemp; or

(b) constructs or establishes or works in any manufactory, distillery, brewery or warehouse; or

(c) Manufactures, uses, keeps or has in his possession any material, utensil, implement or apparatus, or uses any premises, whatsoever, for the purpose of manufacturing any intoxicant or liquor; or

(d) Manufactures any material or film either with or without the State Government logo or logo of any State or wrapper or any other thing in which liquor or intoxicant can be packed or any apparatus or implement or machine, for the purpose of packing any liquor or intoxicant; or

(e) Removes any liquor or intoxicant from any distillery, brewery, warehouse, other place of storage licensed, established, authorized or continued under this Act; or

(f) Manufactures, possesses, sells, distributes, bottles, imports, exports, transports or removes, any preparation made with or without the use of any intoxicant or liquor which can serve as an alcohol or a substitute for alcohol and is used or likely to be used or consumed for the purpose of getting intoxicated;

shall be punishable with imprisonment for the term which may Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

extend to life and with fine which may extend to ten lakh rupees.

Provided that the punishment:

(a) For the first offence shall not be less than five years imprisonment and fine of not less than one lakh rupees, and

(b) For the second and subsequent offences shall not be less than ten years rigoruous imprisonment and fine of not less than five lakh rupees."

15. From perusal of the F.I.R. under quashing it

appears that various contraventions / breaches / irregularities

were found after inspection done by Excise Officials which are

allegedly in violation of the terms of license / N.O.C. and the

notification / circular issued by the Government under its Excise

Department vide Annexure-2. Further in the 2nd FIR the

informant has alleged the connivance of three agencies i.e.

petitioners- company, authorized agency for putting digital lock

and the tanker operators who are allegedly engaged in black

marketing of ethanol. Learned counsel for the petitioner relied

upon paragraph nos. 20 & 21 of the judgment reported in (2010)

12 SCC 254 Babubhai vs State of Gujarat which say that FIR

sets the machinery of criminal law in motion and marks the

commencement of the investigation which ends with the Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

formation of an opinion under Section 169 or 170 Cr.P.C., as the

case may be, and forwarding of a police report under Section

173 Cr.P.C. Thus, it is quite possible that more than one piece of

information be given to the police officer in charge of the police

station in respect of the same incident involving one or more

than one cognizable offences. In such a case, he need not enter

each piece of information in the diary. All the other information

given orally or in writing after the commencement of the

investigation into the facts mentioned in the First Information

Report will be statements falling under Section 162 Cr.P.C. In

such a case the court has to examine the facts and circumstances

giving rise to both the FIRs and the test of sameness is to be

applied to find out as to whether both the FIRs relate to the

same incident in respect of same occurrence or in regard to the

incidents which are two or more parts of the same transaction. If

the answer is in affirmative, the second FIR is liable to be

quashed.

16. The respondents / State also relied upon

paragraph nos. 16, 17, 18 & 21 of the same judgment i.e.

Babubhai case (supra) which say that more than one FIR in

respect of same transaction are not permissible but if the two

FIR pertains to two different crimes / incident or incident are in Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

two or more parts of the same transaction then 2nd FIR is

permissible.

17. The petitioner also relied upon Amitbhai

Anilchandra Shah vs. Central Bureau of Investigation reported

in (2013) 6 SCC 348 specially upon paragraph nos. 37 & 58.3

to 58.6. Paragraph no. 37 of the aforesaid judgment says that the

second FIR in respect of an offence or different offences

committed in the course of same transaction is not only

impermissible but it violates Article 21 of the Constitution of

India. In T.T. Antony vs. State of Kerala reported in (2001) 6

SCC 181 the Hon'ble Apex Court has held that registration of

second FIR (which is not a cross -case) is violative of Article 21

of the Constitution of India. Paragraph 58.5 of the said judgment

says that First Information Report is a report which gives first

information with regard to any offence. There cannot be second

FIR in respect of the same offence / event because whenever

any further information is received by the investigating agency,

it is always in furtherance of the first FIR.

18. The respondent / State relied upon Anju

Chaudhary vs State of Uttar Pradesh & Anr. reported in (2013) 6

SCC 384 for the proposition that the merits of the each case is to

be examined whether a subsequently registered FIR is a second Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

FIR about the same incident or offence or is based upon distinct

or different facts and whether its scope of inquiry is different or

not. It will not be appropriate for the court to lay down one

straight jacket formula uniformly applicable to all cases. In

Nirmal Singh Kahlon vs State of Punjab reported in (2009) 1

SCC 441 the Hon'ble Apex Court has held that 2 nd FIR or

subsequent FIR is permissible where the conspiracy discovered

later is found to cover a much larger canvas with broader

ramifications and it cannot be equated with the earlier

conspiracy which covered a smaller field on narrow dimension.

The same proposition has been laid down by the Hon'ble

Supreme Court in (2019) 11 SCC 774 Varshaben Kantilal Purani

Vs State of Gujarat & Ors.

19. Now coming back to the present case as

discussed above the 1st & 2nd FIR differ fundamentally from

each other inasmuch as the informants of both the FIRs are

different officers belonging to two different districts; accused

persons are also different and the scope of investigation is also

substantially different. In the 2nd FIR the possibility of larger

conspiracy after inspection of the warehouse of the company

has been alleged which may have broader ramifications which

cannot be equated with the contents of the 1 st FIR in which Patna High Court CR. WJC No.1281 of 2021 dt.19-10-2023

tanker driver, owners of tanker and the pick up van were found

indulged in theft / siphoning of ethanol, as such, the 1 st FIR

cannot be equated with the 2nd FIR, which are distinct and

different from each other having separate cause of action at

different places, having different accused persons.

20. In view of the aforesaid discussions on facts as

well as on law, this Court is of the considered opinion that the

two FIRs are different fundamentally from each other and the

petitioners are not able to make out a case for quashing of the

2nd FIR contained in Annexure-6. Accordingly, I find no merit in

this petition. Hence, the same is dismissed.

                                                (Anil Kumar Sinha, J)
praful/-AFR
AFR/NAFR                AFR
CAV DATE                31-08-2023
Uploading Date          19-10-2023
Transmission Date       19-10-2023