JAI DUTT JOSHI vs STATE OF UTTARAKHAND AND OTHERS

1. Present Criminal Miscellaneous Application has been filed by the applicant for quashing and setting aside the order dated 14.12.2017 passed by

the learned Sessions Judge, Champawat in Criminal Revision No. 41 of 2017, “Jai Dutt Joshi vs. State of Uttarakhand and another†and the order

dated 28.11.2017 passed by the Chief Judicial Magistrate, Champawat in Application No. 46 of 2017. Further prayer has been made for a direction

to the Police Station-Pati, District Champawat to release the seized liquors of the applicant.

The facts, in brief, are that, for the year 2017-2018 (w.e.f. 01.06.2017 to 31.03.2018), applicant was granted licence no. 13 of the composite shop of

liquor situated at Bhingrada, District Champawat. He was running business conveniently. On 15.10.2017, applicant submitted an application

before the respondent no. 3-District Excise Officer, Champawat for permitting him to use the sub-godown of liquor in the building of one Mr.

Raghuvar Singh Kunwar, as there was insufficient place in the shop of the applicant. It is the case of the applicant that, after 2 informing the

respondent no. 3, he was orally permitted to use the temporary sub-godown. On 07.11.2017, the application moved by the applicant was allowed by

the respondent no. 3 and gave permission to the applicant to submit the challan of said sub-godown. Since, the applicant was granted permission and

he was a valid license holder, he purchased the liquor and shifted it to the sub-godwon. Applicant deposited challan of Rs. 50,000/- and, thereafter,

further licence was given to the applicant on 10.11.2017. In between 08.11.2017, 240 bottles, 480 half and 4263 quarters of English Wine and

country liquor, having 372 bottles and 846 quarters, kept in the sub-godown of the applicant were seized by the police of Police Station Pati and the

salesman was challaned under Section 60 of the Excise Act.

The applicant moved an application before the Chief Judicial Magistrate, Champawat for release of liquor, which was seized by the police.Â

Against the application of the applicant, the respondent no. 3 filed his reply, in which, he admitted that all the liquor seized by the police were not illegal

and were duty paid material. Same were valid and shown in the transport pass also. It was also stated in the reply that the applicant is the licence

holder of composite shop of liquor in Bhingrada. Respondent also admitted that application was filed by the applicant for temporary use of godown;

but, permission could not be given due to non-depositing of requisite fee. Subsequently, the said fee was deposited. The Chief Judicial Magistrate

Champawat, rejected the application of the applicant on 28.11.2017. Against the said order, applicant filed a revision before the learned Sessions

Judge, Champawat. Learned Sessions Judge, Champawat rejected the same. Against the order passed by the learned Sessions Judge,

Champawat, present criminal miscellaneous application has been preferred.Â

It is the submission of the learned Senior Counsel for the applicant that the applicant is a licence holder of the composite shop of liquor. In the

counter affidavit, it is stated that the permission was granted to the applicant and he was asked to deposit the licence fee of Rs. 50,000/-; but, he did

not deposit the same till 08.11.2017. When the goods were seized, then, subsequently, on the very next day, the fee was deposited by the applicant

in the Office of District Excise Officer and he was granted licence on 10.11.2017.

Learned Senior Counsel also referred to the reply given by the Office of Excise Officer before the Chief Judicial Magistrate against the application

of the applicant for release of goods. In para 6 of the reply, he admitted that the licence was given by the Competent Officer for F.L.-2 and C.L.-2

and transit pass was also given. In para 6 of the said reply, it is stated that the liquor, which was seized, is not illegal and the liquor shown in the

transport pass is valid and duty paid material.Â

Learned Senior Counsel appearing for the applicant submitted that the licence of the applicant is valid only upto 31.03.2018 and, in case, the liquor is

not released, the same cannot be sold subsequently and will be wasted. He submitted that the Section 63 of the Excise Act provides for penalty for

possession of intoxicant unlawfully imported and applicant is ready to pay such penalty. Section 63 reads as follows:Â

“63. Penalty for possession of intoxicant unlawfully imported, etc.- Whoever, without lawful authority, has in his possession any quantity of any

intoxicant knowing them same to have been unlawfully imported, transported or manufactured or knowing the prescribed duty not to have been paid

thereon, shall be punished with imprisonment for a term which may extend to one year or with fine which shall not be less than five thousand rupees

and which may extend to ten thousand rupees or with both.â€​Â

I have considered the submission advanced by the learned counsel for the parties. The factual position of the case has not been denied by the

learned A.G.A. He admitted that, in fact, the liquor, which has been seized, was valid and transit pass was issued in this regard; but, only thing is

that the duty was paid subsequently. I find that the applicant was having liquor licence for retail shop and, for that additional liquor which has been

seized, transit pass was also issued. Liquor, which was kept inside the godown, was valid one and only thing is that, on that day, fee was not

deposited in time. It is not the case of the respondent that any illegal liquor was kept inside the sub-godown. In such circumstances, application

filed by the applicant should have been allowed. The Courts below have not exercised the jurisdiction in the manner they should have

exercised. Â

Accordingly, the criminal misc. application is allowed. Order dated 14.12.2017 passed by the learned Sessions Judge, Champawat in Criminal 5

Revision No. 41 of 2017, “Jai Dutt Joshi vs. State of Uttarakhand and another†and order dated 28.11.2017 passed by the Chief Judicial

Magistrate, Champawat in Application No. 46 of 2017 are set-aside. Competent Authority, who seized the liquor of the applicant, is directed to

release the same in favour of the applicant.  Applicant is directed to produce all the relevant papers before Authority Concerned before whom

case under Section 60 of the Excise Act is going on. That Authority will act in accordance with law.Â

Let a certified copy of this order be issued within twenty four hours.Â