Palle Mallesham vs The State Of Telangana.,Rep.,Pp
2022 Latest Caselaw 1500 Tel

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

                CRIMINAL PETITION No.1160 of 2016


ORDER:

This petition is filed by the petitioner-A1 under Section 482 Cr.P.C.

to quash the proceedings in CC No.464 of 2013 on the file of Judicial

Magistrate of First Class, Thorrur, Warangal District, taken on file against

him for the offence under Section 7 (a) read with Section 8 (e) of the A.P.

Prohibition Act, 1995 (for short 'the Act').

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

Inspector of Police of Rayaparthy Police Station lodged a report in

Rayaparthy Police Station on 25.08.2012 stating that on credible

information about possession of a large quantity of black jaggery, alum and

ID liquor in the house of one Guguloth Somla (A2), raided the house of

said Somla at Bhojyanayak Thanda H/o. Burhanpally at about 4.00 AM, on

the same day. On seeing the police, A1 and A2 managed to escape from

the house. He secured the mediators and in their presence seized 100 bags

of black jaggery, each containing 50 kgs., total 50 quintals, two bags of

alum, each containing 50 kgs., total one quintal and 10 liters of ID liquor

from the house of A2, drawn the samples under the cover of panchanama.

Basing on the said report, the SI of police of Rayaparthy registered a case Dr.GRR,J

in Crime No.89 of 2012 for the offence under Section 7(a) read with 8(e) of

the Act, recorded the statements of the witnesses, drafted rough sketch of

the scene of offence. He apprehended A1 and A2 on 27.08.2012 and on

interrogation, they admitted committing the offence. The Government

Chemical Examiner examined the samples and issued a report. After

completing the investigation, the police filed charge sheet against A1 and

A2 for the offence under Section 7(a) read with 8(e) of the Act.

3. Heard the learned counsel for the petitioner and the learned

Assistant Public Prosecutor.

4. The learned counsel for the petitioner submitted that the

petitioner was carrying on business in the name and style of Sindhu Kirana

and General Merchant, Burhanpally village, Rayaparthy Mandal and was

selling kirana, jaggery, alum and other commodities to the customers. The

petitioner was purchasing jaggery and alum from the agricultural market

yards and transporting the same to his place, under valid bills. 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 Dr.GRR,J

record substantiating the involvement of the petitioner in the said offence.

No licence was required for carrying on the business in black jaggery and

alum nor any permit was required for its transportation. No conviction

could be secured by the prosecution against the petitioner for the offence

alleged against him. The allegations in the FIR and the charge sheet even if

taken on their face value and accepted in entirety would not make out any

case against the petitioner under Section 7(a) read with 8(e) of the Act, as

such, proceedings in CC No.464 of 2013 were liable to be quashed and

prayed to allow the petition.

5. The learned Assistant Public Prosecutor relied on the order dated

25.02.2022 passed by this Court in Crl.P. No.1095 of 2016.

6. Perused the record. As per the charge sheet, a large quantity of

black jaggery weighing 50 quintals found in 100 bags, each containing 50

kgs., and one quintal of alum in two bags each containing 50 kgs., and 10

litres of ID liquor was seized from the house of the accused under the cover

of panchanama by the police. The contention of the learned counsel for the

petitioner was that no licence was required to carry on the business in black

jaggery and alum and the producers of black jaggery and alum were

allowed to sell their produce in the agricultural market yards. The Dr.GRR,J

petitioner was purchasing the same under valid bills as such, no offence

was made out against him.

7. But, the issue whether possession and transportation of black

jaggery and alum by itself is an offence under Section 7(a) read with 8(e)

of the A.P. Excise Act, is no more res integra. This Court in Crl.P.

No.1095 of 2016 by relying on the decision 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 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 of each case including any report of the chemical examiner a Dr.GRR,J

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, held that:

"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. ..."

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

9. Learned counsel for the petitioner contended that the above

citations are dealing with the issue of transportation of above material but

not possession of the same and distinguishable on the said point. But, a

perusal of the same would disclose that they dealt with the aspect of both

possession and transportation of black jaggery, alum which ware likely to

be used in the manufacture of ID liquor and hence, not distinguishable.

10. Hence, considering the judgment of the Hon'ble Apex Court and

of this Court in Jai Gayathri Traders and General Merchants case

(supra), it is considered not fit to quash the proceedings in CC No.464 of

2013 on the file of Judicial Magistrate of First Class, Thorrur, Warangal, as

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

pleas can be raised by the petitioner before the criminal court.

11. Accordingly, the Criminal Petition is dismissed. Miscellaneous

petitions pending, if any, shall stand closed.

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