Ajay Verma vs State Of Uttarakhand And Others
2023 Latest Caselaw 1591 UK

 HIGH COURT OF UTTARAKHAND AT NAINITAL

     Criminal Misc. Application No. 2912 of 2019


Ajay Verma
                                                ........Applicant

                            Versus


State of Uttarakhand and others
                                            ........Respondents

Present:-
            Mr. Sanpreet Singh Ajmani and Mr Bhavya Pratap Singh,
            Advocates for the applicant.
            Mr. Ranjan Ghildiyal, AGA for the State.



                         JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to the

Charge Sheet No. 42A/2019 dated 13.10.2019 under

Sections 302, 328, 272, 273, 120-B IPC, Section 62 of the

U.P. Excise Act, 1910 and Sections 4, 5, 6 (I)(a) of the

Poisons Act, 1919 in Case Crime No. 22 of 2019, P.S.

Jhabrera, District Haridwar; summoning order dated

13.11.2019 passed in Criminal Case No. 2030 of 2019,

State v. Ajay Verma, by the court of Second Additional Civil

Judge (JD)/Judicial Magistrate, Roorkee ("the case") as well

as the entire proceedings of the case.

2. Heard learned counsel for the parties and

perused the record.

3. Facts necessary to appreciate the controversy,

briefly stated, are as follows. On 08.02.2019, an information

was received at P.S. Jhabrera, District Haridwar that

various persons died after consuming spurious liquor. This

report was lodged as FIR No. 22 of 2019 dated 08.02.2019,

under Sections 302, 328, 272, 273 IPC and Section 62 of

the U.P. Excise Act, 1910, and the matter investigated. After

investigation, charge sheet was submitted against the

petitioner for the offences punishable under Sections 302,

328, 272, 273, 120-B IPC, Section 62 of the U.P. Excise Act,

1910 and Sections 4, 5, 6 (I)(a) of the Poisons Act, 1919,

which is basis of the case, in which cognizance was taken

on 13.11.2019. It is impugned herein.

4. Learned counsel for the petitioner would submit

that there is no evidence against the petitioner; he is a

licenced vendor, who deals in Isopropyl Alcohol ("IPA"); the

name of his firm is 'Thinchem Corporation'; he had sold IPA

to one AAY CEE Cellulose Industries Pvt. Ltd., Roorkee

("AAY CEE Cellulose"), which further sold the chemical and

it landed in the hands of some person, who misused it and

made spurious liquor, after consuming which several

persons died.

5. It is submitted that by no stretch of imagination,

the petitioner can be held responsible for any act; no prima

facie case is made out against the petitioner; he is a

licenced vendor; his firm deals in IPA under statutory

Regulations; which has been validly followed. Merely

because some subsequent sale were not as per Regulations

or the chemical sold was used illegally for manufacturing

illegal liquor, the petitioner cannot be held responsible; no

prima facie case, whatsoever, is made out against the

petitioner.

6. Learned State Counsel would submit that the

petitioner sold IPA to AAY CEE Cellulose, which further sold

the chemical; at one stage, it was used for making illicit

liquor, due to consumption of which various persons died.

It is argued that on inspection, it was found that IPA, which

was sold by the petitioner to AAY CEE Cellulose was sold in

open drums; they were not sealed.

7. This is a petition under Section 482 of the Code

of Criminal Procedure, 1973 ("the Code"). The jurisdiction is

much wide to prevent abuse of the process of any court or

otherwise to secure the ends of justice. At the same time,

the jurisdiction is strictly guided by the principles of law as

laid down by the Hon'ble Supreme Court in various

judgments.

8. In the case of State of Haryana and Others Vs.

Bhajan Lal and Others, 1992 Supp (1) SCC 335, the Hon'ble

Supreme Court discussed the scope of the jurisdiction

under Section 482 of the Code and has specifically given an

illustrative list, under which the jurisdiction may be

invoked. In paragraph 102 of the judgment, the Hon'ble

Supreme Court discussed the jurisdiction under Section

482 of the Code and observed as hereunder:-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted 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 any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations 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 offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient 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 instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious 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 maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

9. What is being argued on behalf of the petitioner

is that no prima facie case is made out against the

petitioner.

10. The incident is very unfortunate. Various persons

died due to consumption of spurious liquor. The question is

as to how could the petitioner be connected with the

making of spurious liquor and its consumption? The

petitioner has been summoned under Section 302 IPC and

other related offences. Section 302 IPC definitely requires a

high level of mens rea, intention, knowledge, etc. There are

other sections also in which the petitioner has been

summoned, which deals in adulteration of food or drinks

intended for sale, criminal conspiracy, offences under the

Poisons Act, 1919, etc.

11. In its counter affidavit, the State Government, in

paras 6 and 7 has given the role of the petitioner. It is as

hereunder:-

"6. That in reply to the contents of para 4 sub para I to xiii of the application it is submitted that the present petitioner who is a Prop. of Thinchem Corporation Delhi purchased the alleged IPA Technical Grade from A.P. Chemicals Pretampura Delhi and same was sold to AAY CEE Cellulose Industries Private Ltd. Roorkee on the name of IPA, who further sold the same product on the name of IPA Distilled. During the course of investigation investigating officer obtained the stock register of AAY CEE Cellulose Industries Private Ltd. Roorkee which corroborate the fact that the chemical sold by the AAY CEE Cellulose Industries Private Ltd. Roorkee was the same which was purchased by him from the present petitioner. Further, it is also submitted that at the relevant time when the co accused Arjun purchased the said chemical IPA from AAY CEE Cellulose Industries Private Ltd. Roorkee through other co accused persons the only stock of the present petitioner's firm was available with the AAY CEE Cellulose Industries Private Ltd. Roorkee and this fact is also corroborated by the witness Raj Kumar Gupta in his statements recorded under section 161 Cr.P.C. For kind perusal of this Hon'ble Court a true/correct typed version/photocopy of the stock register and statement of Raj Kumar Gupta recorded under section 161 Cr.P.C. are being filed herewith and marked as Annexure No. CA-1 and 2 to this

affidavit. Further a true/correct typed version/photocopy of the statement of co accused Amit Gupta and Sachin Gupta recorded under section 161 Cr.P.C. are being filed herewith and marked as Annexure No. CA-3 and 4 to this affidavit.

7. That the contents of para 5 of the application are not admitted as stated. It is submitted that the present applicant on the garb of IPA (Isopropyl Alcohol) sold out methanol to the AAY CEE Cellulose Industries Private Limited Roorkee who further sold out the same to the other co accused persons which resulted death of so many persons. In the light of evidence collected during investigation the contention made under para is of no avail."

12. The averments as made in para 6 and 7 of the

counter affidavit filed by the State, have not been argued.

Para 7 of the counter affidavit records that instead of IPA,

Methanol was sold to AAY CEE Cellulose. But, it is not so

stated by anyone. It is not the case of the owners of AAY

CEE Cellulose that they were provided what they had not

purchased. The statements of Rajkumar Gupta, Amit Gupta

and Sachin Gupta have been annexed along with the

counter affidavit.

13. Learned counsel for the petitioner would submit

that Amit Gupta and Sachin Gupta are co-accused in the

case. Does it mean that the State would examine the co-

accused at trial? When questioned, learned State Counsel

has no reply.

14. Rajkumar Gupta has told it to the Investigating

Officer that they did not mix anything with the IPA, which

they purchased from Thinchem Corporation Limited, Delhi.

15. From the above, the following points emerge:-

(i) If there was some business transaction

between the petitioner and the owners of

AAY CEE Cellulose, that transaction ends at

that stage.

(ii) The chemical i.e. IPA was not sold by the

petitioner for making liquor. It is the case of

the petitioner that this chemical is used in

manufacturing cosmetics, etc.

(iii) Even if for the sake of arguments, it is

believed that the chemical, which was sold

by the petitioner to AAY CEE Cellulose had

some adulteration, it does not make out a

case against the petitioner for the reason

that it was not sold for consumption. It was

sold for the purposes of manufacturing

cosmetics. Had the IPA sold been not as per

specification, it might have caused problem

in manufacturing the cosmetic products or

there would have been some repercussion

by its use. But, it is not the case.

(iv) The petitioner did not sell IPA to the person,

who manufactured spurious liquor. He is

some Arjun Gujjar. It is the case of the

prosecution that the petitioner sold the IPA

to AAY CEE Cellulose, who then sold it to

some other firms and thereafter it landed in

the hands of the person, who manufactured

the spurious liquor. The petitioner, in no

manner, can be connected with the illegal

use of IPA.

(v) It is admitted even to the prosecution that

the petitioner is a valid licenced vendor, who

deals in IPA. The sale of IPA by the

petitioner to AAY CEE Cellulose has not

been questioned by the buyer or by any

other person.

(vi) Even if any drum kept in the premises of

AAY CEE Cellulose had Methanol, it per se

does not make out a prima facie case

against the petitioner. Who had brought

these drums? When were the drums

purchased by AAY CEE Cellulose? In what

condition were they purchased? What were

their chemical composition? It is admitted

that the IPA was sold by the petitioner to

AAY CEE Cellulose. It is not the case of AAY

CEE Cellulose that they were given

adulterated or misbranded chemical by the

petitioner.

(vii) Prima facie also, it has not been shown as to

how the offence under the Poisons Act, 1919

is attributed? The petitioner did not

purchase any poison from any vendor. He

did not sell any poison to AAY CEE

Cellulose. He sold IPA. AAY CEE Cellulose

has not complained of it.

16. The Court is cautious that in a proceeding under

Section 482 of the Code, a mini trial may not be conducted.

But, instant is a case, which even accepted in its entirety,

does not make out even a prima facie case against the

petitioner. Accordingly, this Court is of the view that an

interference is warranted in the matter and the petition is

liable to be allowed.

17. The petition is allowed. The Charge Sheet No.

42A/2019 dated 13.10.2019 under Sections 302, 328, 272,

273, 120-B IPC, Section 62 of the U.P. Excise Act, 1910 and

Sections 4, 5, 6 (I)(a) of the Poisons Act, 1919 in Case Crime

No. 22 of 2019, P.S. Jhabrera, District Haridwar;

summoning order dated 13.11.2019 passed in the case as

well as the entire proceedings of the case are hereby

quashed.

(Ravindra Maithani, J.) 09.06.2023 Avneet/