Goyal and Co. vs State of Haryana

M.L. Singhal, J.

This is a criminal misc. petition No. 13259M of 1996 filed by M/s Goyal and Company licensee of L2 and L14A for the year 199697, whereby they have prayed for the quashment of FIR No. 343 dated 11.6.1996 under Section 61 of the Punjab Excise Act, 1914 read with Section 120B of the Indian Penal Code registered at Police Station City, Hisar (Annexure P3). It is averred that petitionerfirm was given licence by Excise and Taxation Commissioner, Haryana to open and sell foreign liquor, beer, and country liquor under the L2 and L14A licences for the year 199697. L2 licence is Annexure P1 and L14A licence is Annexure P2. These licences were valid for the period 1.4.1996 to 31.3.1997. It is a registered firm. Licences were granted subject to payment of Rs. 14.75 crores on account of licence fee. Licences were withdrawn from them with effect from 30.6.1996 after the closing hours i.e. 11.00 A.M. in the wake of introduction of ''policy of prohibition'' by the Haryana Government. The instructions were given to the Superintendents of Police and the Deputy Commissioners of the State of Haryana to strictly implement the policy of prohibition. In his zeal to please his political bosses, respondent No. 2 violated the law, rules and instructions and blatantly interfered in the business of petitionerfirm to secure the implementation of the policy of prohibition. Three FIRs one after the other were registered against them so as to deter them from pursuing its business of sale of liquor under L2 and L14A. Annexure P3 is one such FIR registered against them on 11.6.1996. It is further averred that the petitionerfirm was not allotted any particular site for the setting up of liquor vend in the Auto Market region. The petitionerfirm applied to the Deputy Excise and Taxation Commissioner, Haryana for permission to set up liquorvend at HissarBarwala byepass near octroi post, Hissar. The Deputy Excise and Taxation Commissioner forwarded that request of the petitionerfirm to the Excise and Taxation Commissioner, Haryana for recommending necessary sanction for setting up the liquor vend at that point. Annexure P4 is the memorandum written by the Deputy Excise and Taxation Commissioner to the Excise and Taxation Commissioner, Haryana Chandigarh in this behalf. As the elections to the Haryana State Assembly were in the offing and thereafter the policy of prohibition was declared by the State of Haryana, the necessary sanction could not be communicated to the petitionerfirm by the Excise and Taxation Commissioner, Haryana, Chandigarh. The petitionerfirm commenced operating from the site at HissarBarwala byepass near octroi post, Hissar for the sale of liquor as the petitioner firm had no other retail outlet/vend in the Auto Market region for which the licence had been issued to them. The petitionerfirm continued its business at the said site for more than 3 months, without any objection from the Department of Excise or from the Department of police. Respondent No. 2 with mala fide intention to please his political bosses initiated drive against the petitionerfirm for imposing total prohibition even before the date fixed by the State of Haryana when prohibition was to come in force. The petitioner firm was the sole licensee for the entire city of Hissar so far as L2 and L14A licences were concerned. On 11.6.1996 on the registration of FIR Annexure P3 against the petitionerfirm the vend in dispute was closed by respondent No. 2. The petitioner firm filed a civil suit for injunction against the Excise and Police Departments of the State of Haryana. The Department of Excise and Taxation through the Excise and Taxation Commissioner filed reply saying that the petitionerfirm was operating from an unapproved site. Annexure P.5 is the copy of the reply filed by the Deputy Excise and Taxation Commissioner in the civil Court at Hissar. Vide order dated 15.6.1996 Annexure P6 Additional Civil Judge (Senior Division) Hissar gave an adinterim injunction restraining the Excise and Taxation Department Haryana as well as Police Department, Haryana from interfering in the functioning of the liquorvend. The Additional Civil Judge (Senior Division) Hissar gave direction to the Department of Excise and Taxation to approve the site of the petitionerfirm. The petitioner firm sent FAX and telegram messages on the closure of liquor vend. Annexure P7 is the copy of FAX/telegram message. The Deputy Excise and Taxation Commissioner, Hissar, granted necessary approval for the site in dispute vide Annexure P8 and allowed the petitionerfirm to operate therefrom. The petitionerfirm thus was not in any manner negligent or responsible for operating from an unapproved site. It is further averred that the premises of the petitionerfirm was raided by the Assistant Sub Inspector of the Police which is in violation of the Haryana Liquor Licence Rules, 1970 and the rules laid down by the Financial Commissioner, Haryana in this behalf providing that Officer not below the rank of Deputy Superintendent of Police accompanied by an Excise Officer can check or raid the vend. The Excise and Taxation Commissioner (Prohibition) Haryana exercising the powers of Financial Commissioner gave the following instructions:

"A Police Officer not below the rank of the Deputy Superintendent of Police is authorised to check the excise vends but he will not book petty offences such as sale of liquor on dry days, beyond the hours of sale etc. falling within the ambit of Section 65 of the Punjab Excise Act committed by the licensee or his authorised agent in the vend premises under Section 61 (Act No. 1 of 1914). In order to ensure that no untoward harassment is caused to the licensee by the Police, the Police Officers shall take an Excise Officer alongwith them while checking of liquor vends."

No offence under Section 61 of the Punjab Excise Act has been committed by the petitionerfirm as they were not dealing in unlawful sale of the liquor and their possession of liquor was not unlawful. They were the sole licensee for the entire area of Hissar City and cannot by any stretch of imagination be said to be in possession or selling liquor unlawfully. At best it was a case of sale from an unapproved site which does not amount to an offence punishable under Section 61 of the Punjab Excise Act.

The respondentState of Haryana opposed this petition urging that the FIR was registered against the petitioner firm because they had violated the terms and conditions of the licences and set up vend where they had not been permitted to set up the vend. The petitionerfirm was having a licence for one liquor vend in the area of Auto Market, Hissar. In L2 and L14A licences, the area of this liquor vend was mentioned as Auto Market Area, Hissar (Auto Market and on Barwala Road up to Octroi Post). Sh. Inder Singh, partner of M/s Goyal and Company had applied to the Deputy Excise and Taxation Commissioner, Hissar on 19.4.1996 for addition of three liquor vends in Hissar Siwani Group, which already contained 18 liquor vends including the one in Auto Market, Hissar. The addition of 3 liquor vends required by the petitioner was as follows:

Hissar Byepass chowk on HissarBarwala Road.

Lahoria School to 12 quarters (within the Municipal limits).

Sector 27 and 28 developed by HUDA on HissarDelhi Road, Hissar.

A copy of the application made by them is Annexure R/1. From the perusal of Annexure P4 annexed by the petitionerfirm with this petition, it emerges that the petitionerfirm wanted to open three more liquor vends in addition to one already allotted to them and these three liquorvends included Hissar byepass chowk on HissarBarwala Road. If the petitioner firm had already been allotted and had opened liquor vend at Hissar byepass at BarwalaHissar road, there was no necessity for them to apply again for getting sanction to run this liquor vend. It also emerges from the perusal of Annexure P4 that actually the liquor vend was opened by the petitionerfirm in Auto Market Hissar where the licence to sell liquor was granted but the liquorvend at BarwalaHissar road near bye pass chowk was run by the petitionerfirm unlawfully and was unapproved and the vend was functioning in contravention of the Haryana Liquor Licence Rules, 1970 at an unapproved site.

In pursuance of order passed by Additional Civil Judge (Senior Division) Hissar, the petitionerfirm submitted site plan which was approved by the Excise Department and the approval (Annexure P8) was conveyed to the petitionerfirm on 15.6.1996. Earlier to this, the petitionerfirm had not submitted any site plan for approval and as such they were not entitled to run any liquor vend at HissarBarwala Road near Octroi Post. The petitionerfirm had set up liquor vend unauthorisedly prior to when the permission was applied for. Running of liquor vend by the petitionerfirm at HissarBarwala Road near Octroi Post was illegal, prior to the approval of the site plan as they were already running liquor vend in Auto Market, Hissar.

In State of Haryana v. Ch. Bhajan Lal, 1991(1) RCR 383 , the Hon''ble Supreme Court has enumerated certain categories of cases where this Court may in the exercise of inherent powers vesting in it under Section 482 Cr.P.C. quash a criminal prosecution. the following are those categories of cases:

"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.

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

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.

Where the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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.

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.

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."

The Hon''ble Supreme Court has laid down that this power should be exercised sparingly and that too in the rarest of the rare cases. Where allegations in the complaint did justify registration of a case and investigation thereon and did not fall in any of the categories of the cases enumerated, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. In this case the allegation against the petitioner firm is that they were found selling liquor at a point where they had not been licensed to sell liquor by virtue of the conditions mentioned in L2 and L14A licences granted to them by the Excise and Taxation Department of the State of Haryana for the period 1.4.1996 to 31.3.1997. According to the State of Haryana, the vend premises functioning at Hissar Barwala byepass near octroi post were on an unapproved site and so the vend was functioning in contravention of the Liquor Licence Rules, 1970 at an unapproved site. According to the respondentState of Haryana the petitionerfirm had violated the terms and conditions of the licences and set up liquor vend at a point where it had not been permitted to do so, and the petitionerfirm was having a licence for one liquor vend for the area of Auto Market, Hissar. The area of this liquor vend shown in L2 and L14A licences was mentioned as Auto Market, Hissar (Auto Market and on Barwala Road up to Octroi Post). On 19.4.1996 Inder Singh, partner of petitionerfirm had applied to the Deputy Excise and Taxation Commissioner for addition of three liquor vends in Hissar Siwani Group which already contained 18 liquor vends including the one in Auto Market, Hissar. On 11.6.1996 according to the State of Haryana, the petitionerfirm was selling liquor from an unapproved site. By virtue of licences L2 and L14A, they had been authorised to sell liquor at Auto market Hissar (Auto Market and on Barwala Road up to Octroi Post). They were to submit site plans indicating points where they could set up liquor vend in Auto Market, Hissar (Auto Market and on Barwala Road up to Octroi post). Before those site plans had been approved and permission given to them to sell liquor at the points indicated in those site plans and approved by the Excise and Taxation Commissioner, Haryana, the sale of liquor by them was in breach of the terms of the licences. It is a question of evidence whether they had been authorised to sell liquor by the Excise and Taxation Department of the State of Haryana on that point or the sale of liquor by them at that point was unauthorised and in breach of the terms of licences L2 and L14A. As to whether the possession and sale of liquor by the licensee at an unauthorised point makes the possession and sale of liquor an offence under Section 61 of the Excise Act, 1914 or it is in contravention of the terms of the licences and is not so punishable can be urged before the trial Court.

Section 65 of the Punjab Excise Act, 1914 reads as follows:

"65. Penalty for certain acts by licensee or his servant : Whoever being the holder of a licence, permit or pass granted under this Act or being in the employ of such holder or acting on his behalf :

(a) fails wilfully to produce such licence, permit or pass on the demand of any excise officer or of any other officer duly empowered to make such demand; or

(b) in any case not provided in Section 61 wilfully contravenes any rule made under Section 58 or Section 59; or

(c) wilfully does or omits to do anything in breach of any of the conditions of the licence, permit or pass not otherwise provided for in this Act;

shall be punishable in case (a) with fine which may extend to two hundred rupees, and in case (b) or case (c) with fine which may extend to five hundred rupees."

It is doubtful if the violation complained of falls within the ambit of Section 65 (ibid).

It is not a case where this criminal prosecution should be quashed at the very threshold. It is not that rare a case where this Court should exercise its inherent powers and scuttle this prosecution in its embryo.

So this criminal misc. petition fails and is dismissed.