Palle Mallesham vs The State Of Telangana,.,Rep.,Pp
2022 Latest Caselaw 911 Tel

        THE HON'BLE Dr. JUSTICE G. RADHA RANI

            CRIMINAL PETITION No.1095 of 2016


ORDER:

This petition is filed by the petitioners-A1 to A3 under

Section 482 Cr.P.C. to call for the records in CC No.130 of 2014

on the file of Judicial Magistrate of First Class, Thorrur, Warangal

District and to quash the proceedings in the same, taken on file

against them for the offence under Section 34 (e) of the A.P. Excise

Act.

2. The case of the petitioners in brief was that the Sub-

Inspector of Police of Kodakandla Police Station, gave a report on

02.12.2013 stating that while he was conducting vehicle checking

along with the Police Constables, noticed a lorry coming from

Velishala village side and stopped at a distance, when the police

went near the lorry, the petitioners tried to escape. The police

apprehended two persons, petitioners 1 and 2, while A3 fled away.

On checking the vehicle, the police found 340 gunny bags

containing black jaggery, each 50 kgs., total weighing 170 quintals Dr.GRR,J

and 100 kgs., of alum. The 1st petitioner stated that he purchased

the jaggery and alum from Sri Laxmi Venkateswara Traders,

Chinnagottigallu village, Chittoor District belonging to Sri

Laxminarayana Gupta (A4) and contacted A3 and engaged lorry

bearing No.KA 01B 3898 pertaining to A3 on hire for Rs.20,000/-.

A3 called A2 - driver of the lorry, and engaged him to drive the

lorry for an excess amount of Rs.2,000/- to transport the same from

Chinnagottigallu village of Chittoor District to Burhanpally village,

Rayaparthy Mandal of Warangal District. The police seized the

lorry together with jaggery and alum under the cover of

panchanama and registered a case in Crime No.292 of 2013 under

Section 34(e) of A.P. Excise Act.

3. Heard the learned counsel for the petitioners and the

learned Assistant Public Prosecutor.

4. The learned counsel for the petitioners submitted that the

1st petitioner was carrying on business in the name and style of

Sindhu Kirana and General Merchant, Burhanpally village,

Rayaparthy Mandal. He was selling kirana, jaggery and alum and

other commodities to the customers. The 1st petitioner was Dr.GRR,J

purchasing jaggery and alum from the agricultural market yards

and transporting the same to his place, under valid bills. The 1st

petitioner had purchased 340 bags of black jaggery from M/s.Sri

Laxmi Venkateswara Traders, Chinnagottigallu village, Chittoor

District under valid bills and engaged lorry bearing No.KA 01B

3898 driven by the 2nd petitioner for its transportation to his place

of business. The sale, purchase and transportation of black jaggery

and alum was neither prohibited nor regulated under law. The

possession and sale of black jaggery and alum would not constitute

an offence punishable under the A.P. Excise Act or under A.P.

Prohibition Act. There was no material on record substantiating

the involvement of the petitioners in the said offence. The jaggery

was an agricultural produce. The purchasers of jaggery were

allowed to sell their produce in the agricultural market yards. The

petitioner No.1 like any other business people purchased jaggery

and black jaggery from the agricultural market yards under bills

and was transporting the same to his respective place of business

for the purpose of sale. No licence was required for carrying on the

business in black jaggery and alum nor any permit was required for Dr.GRR,J

its transportation. No conviction could be secured by the

prosecution against the petitioners for the offences alleged against

them. The allegations in the FIR and the charge sheet even if they

were taken on their face value and accepted in entirety would not

make out any case against the petitioners under Sections 7 (a) read

with Section 8(e) of the A.P. Prohibition Act or Section 34 (e) of

the A.P. Excise Act and as such, proceedings in CC No.130 of

2014 were liable to be quashed.

5. The learned Assistant Public Prosecutor, on the other

hand, submitted that a large quantity of black jaggery and alum

were seized from the possession of the 1st petitoner-A1. The

contraband seized was mainly used for manufacturing I.D. liquor

and prayed to dismiss the petition.

6. Perused the record. A large quantity of black jaggery

weighing 170 quintals found in 340 gunny bags, each containing

50 kgs., and 100 kgs., of alum was seized by the police under the

cover of panchanama. As per the contention of the 1st petitioner,

he purchased the same from Sri Laxmi Venkateswara Traders,

Chinnagottigallu village of Chittoor District and the 2nd petitioner Dr.GRR,J

was the driver of the lorry bearing No.KA 01B 3898 seized by the

police along with the contraband and the 3rd petitoner-A3 was the

owner of the said lorry.

7. The question involved in this case is whether possession

and transportation of black jaggery and alum by itself is an offence

under Section 34(e) of the A.P. Excise Act. This issue is no more

res integra. This Court in Jai Gayathri Traders and General

Merchants v. The Prohibition and Excise Inspector [W.P. 9471

of 2018 decided on 12.06.2018] held that:

"7) The nub of the issue is, when the commodities such as jaggery or for that matter, black jaggery and alum are not prohibited to trade under the excise laws or any other laws, whether the excise officials on the apprehension that those two commodities are since used as raw materials for preparation of Illicitly Distilled liquor, can conduct searches in the premises of the traders and seize them. In the context of black jaggery, this issue was elaborately dealt with by a Full Bench of this Court in Ganesh Traders v. District Collector, Karimnagar and others [2002(1) ALD 210 = 2002 (1) ALT 611]. The question involved therein precisely was that possession and transport of black jaggery although by itself is not an offence can the vehicles carrying the same be liable to be seized under the provisions of A.P Excise Act and A.P Prohibition Act. The majority of judges while discussing whether an offence under Section 34(e) of A.P Excise Act is attracted in respect of possession of a black jaggery, have observed that under Sections 53 and 55 of the A.P Excise Act, the authorities have power to seize any material including black jaggery, which is kept or possessed for the purpose of manufacturing I.D liquor.

Prevention of manufacturing of ID liquor is not only the Dr.GRR,J

mischief that was to be redressed by the Act but it is referable to the duty of the State to protect the health of the citizens. Most importantly, they further observed, for attracting offences, a person need not actually be caught in process of manufacturing of intoxicant (ID liquor) as defined in Section 21 of the Excise Act. As noticed, Sections 53 to 55 of the Act, which enables any officer of the Excise Department to arrest without any warrant for the offences punishable under Section 34 of A.P Excise Act and also search any place. Section 55 of A.P Excise Act, empowers Commissioner, Collector, Police Officer, or any excise official, not below the rank of Excise Sub- Inspector to search any place and seize anything found therein on a mere suspension (has reason to believe) that an offence under Section 34 of the Act is likely to be committed. The general principle of criminal law that preparation for committing offence is not offence, is not applicable to exceptional case under law dealing with intoxicants, for even preparation to manufacture liquor is made an offence under the statute. The majority decision was summed up thus:

"Para 52: We may now summarise our discussion on the main question whether keeping or being in possession of black jaggery material for the purpose of manufacture of liquor is an offence under the Excise Act.

(a) The provisions of the A. P. Excise Act including Sections 13(f) and 34(e) should be interpreted with reference to the objects of the Act and penal provisions dealing with excise offences should also receive broader interpretation having regard to the fact that the Excise Act is intended to achieve partially the objective of Article 47 of the Constitution of India;

(b) Having regard to the provisions of Sections 13, 34 and 53 and 55 of the Excise Act, we must hold that if Commissioner, Collector, Police Officer or Excise Officer "has reason to believe" that black jaggery (material) is likely to be used for manufacture of ID liquor the same can be seized and persons can be arrested and subject to facts and circumstances Dr.GRR,J

of each case including any report of the chemical examiner a charge sheet can be filed under Section 34(e) of the Excise Act.

(c) In a situation such as (a) and (b) above, if the circumstances so warrant the person/accused is entitled to approach under Section 482 of Cr.P.C. and/or Article 226 of the Constitution of India and seek quashing of proceedings provided his case come within well settled principles for quashing F.I.R., charge sheet or criminal case. However, a Writ Petition in such an event at the stage of investigation is not permissible when there is prima facie material to show that black jaggery is not fit for human consumption and was intended for manufacture of ID liquor."

8. The Hon'ble Apex Court in State of A.P. v. Gourishetty

Mahesh & Ors.1 on the similar facts where the Officials of Excise

and Prohibition Station, Huzurabad, Karimnagar District proceeded

to Molangur Cross Road, stopped a van and seized 5,040 kgs., of

black jaggery under the cover of panchanama and A4 therein stated

that he was doing business in jaggery and other kirana (grocery)

items, by considering the judgments of the High Court of A.P. in

State of A.P. v. Golconda Linga Swamy and another, [(2004) 6

SCC 522], wherein the A.P. High Court quashed the complaints

under A.P. Excise Act and A.P. Prohibition Act, held that:

Crl.A. No.1252 of 2010, dated 15.07.2010 Dr.GRR,J

"13) In the case on hand, apart from specific allegations about the transportation of Jaggery for preparation of illicit distilled liquor, prosecution also placed reliance on laboratory analysis report which mentions that the transported Jaggery is fit for fermentation, producing alcohol unfit for consumption. In those circumstances, whether the raw material in existence would be sufficient for holding the accused persons concerned guilty or not has to be considered only at the time of trial. Further, at the time of framing the charge, it can be decided whether prima facie case has been made out showing the commission of offence and involvement of the charged persons. It is immaterial whether the case is based on direct or circumstantial evidence. That being so, the interference at the threshold quashing the FIR is to be exceptional and not like routine as ordered by the High Court in the present case. It is not a case where it can be said that the complaint did not disclose commission of an offence. The acceptability of the materials to fasten culpability on the accused persons is a matter of trial.

14) In the light of the above principles and the materials placed by the prosecution, we are satisfied that the High Court was not justified in quashing the FIR in Crime No. 288/2002- 03 of Excise and Prohibition Station, Huzurabad, Karimnagar District, accordingly the impugned judgment of the High Court is set aside. ..."

9. Hence, considering the judgments of this Court and of

the Hon'ble Apex Court, referred above, it is considered not a fit

case to quash the proceedings in CC No.130 of 2014 as

interference by this Court at the threshold is not warranted and all

such pleas can be raised by the petitioners before the criminal

court.

Dr.GRR,J

10. Accordingly, the Criminal Petition is dismissed.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J February 25, 2022 KTL