Pawan Kumar vs State Of Madhya Pradesh

This is first application under Section 438 of CrPC for grant of anticipatory bail.

The applicant apprehends his arrest in connection with Crime No.601/2017 registered at Police Station District Excise Officer, Gwalior, District

Gwalior for offence under Sections 34(1)(A), 34(1)(B) and 34(2) of Excise Act.

It is submitted by counsel for the applicant that the applicant has nothing to do with the affairs of M/s. Saksham Beverages Private Limited. He is

neither the Director nor signatory authority/nominee of M/s. Saksham Beverages Private Limited. M/s. Saksham Beverages Privates Limited is

holding the licence to carry out the trade in liquor and, therefore, if M/s. Saksham Beverages Private Limited has sold the liquor in question to

Sayaji Hotel Limited, Indore, then it had not committed any illegality. If the liquor was being transported by Rail in contravention of agreement

between Railway and the Transporter, then M/s. Saksham Beverages Private Limited cannot be held liable for the same.

Per contra, the counsel for the State opposed the application for grant of anticipatory bail. However, after going through the Case Diary, which has

been sent by Assistant District Excise Officer, Gwalior to the Office of Additional Advocate General, Gwalior, it was fairly conceded by the counsel

for the State that there is nothing in the Case Diary to indicate that the applicant was either the Director of M/s. Saksham Beverages Private Limited

or was holding any signatory authority/ nominee of M/s. Saksham Beverages Private Limited. So far as holding licence of M/s. Saksham Beverages

Privates Limited is concerned, it was also fairly conceded by the counsel for the State that there is nothing in the Case Diary, which has been sent by

Assistant District Excise Officer, Gwalior and was received by the Office of Additional Advocate General, Gwalior on 05/04/2018, to indicate that

M/s. Saksham Beverages Private Limited was not competent to export liquor outside the State of  Haryana.

This Court has already dealt with the bail application of coaccused Vijay Kumar, which was registered as MCRC 4459/2018. Since the said bail

application was argued in detail and this Court had gone through the Case Diary sent in the said case, therefore, this Court was aware of the fact that

there is a communication by different authorities to the effect that M/s. Saksham Beverages Private Limited is not competent to export liquor outside

the State of Haryana. When this Court requested the counsel for the State to hand over the photo copy of the Case Diary, then this Court also found

that the Case Diary, which has been sent by Assistant District Excise Officer, Gwalior in this case, does not contain any such documents, which were

initially sent to this Court while considering the bail application of co-accused Vijay Kumar in MCRC 4459/2018.

The Office of Additional Advocate General, Gwalior, every time call for photo copy of Case Diary separately in every bail application. Therefore, this

Court requested the counsel for the State that the set of case diary which was sent in MCRC 4459/2018, must be in the Office of Additional

Advocate General, Gwalior and, therefore, he may try to locate the said Case Diary in the Office. Shri Dhakad, the counsel for the State after

sometime, succeeded in locating the set of Case Diary which was sent in MCRC 4459/2018 and handed over the same to this Court for its perusal.

The said Case Diary contains a covering letter dated 24/02/2018, written by Sunil Dutt Bhatt, Assistant District Excise Officer, Gwalior, which was

addressed to Shri Rajendra Singh Yadav, Govt. Advocate, Office of Additional Advocate General, Gwalior, mentioning therein that the charge

sheet/complaint has already been filed in the Court of JMFC, Gwalior and the photo copy of set of Case Diary is being sent in MCRC 4459/2018. The

said set of case diary has been numbered.

In the present case, it was argued by counsel for the applicant that the applicant has nothing to do with the affairs of M/s. Saksham Beverages Private

Limited and the applicant is neither the Director nor has been authorized to sign any document on behalf of M/s. Saksham Beverages Private

Limited. The set of Case Diary, which has been sent by Sunil Dutt Bhatt, Assistant District Excise Officer, Gwalior, does not contain any document to

show as to why the applicant has been made an accused on behalf of M/s. Saksham Beverages Private Limited, but surprisingly, the set of Case

Diary which was sent in MCRC 4459/2018 contains a letter written by M/s. Saksham Beverages Private Limited, by which it was confirmed by M/s.

Saksham Beverages Private Limited that the applicant is authorized to sign the excise papers on behalf of M/s. Saksham Beverages Privates Limited.

For the sake of brevity, the said letter is reproduced as under:-

''TO WHOM SO EVER IT MAY CONCERN

We, hereby confirm that Mr. Pawan Kumar S/o. Mr. Mahesh Chand R/o. C11/9, Gali No-1, Kabir Nagar, Delhi-110094 is authorized to sign Excise

papers on behalf of Saksham Beverages Private Limited.

Thanking You

For Saksham Beverages Private Limited.''

In the bail application, the following grounds have been raised specifically by the applicant. Ground No.7 is as under-

''1) That, applicant is 28 years old.

2) That, complaint falsely lodged the report againstthe applicant.

3) That, applicant is not any connection to M/SSaksham Beverages Pvt. Ltd. Applicant is not a director or any signature authority of above company

M/S Saksham Beverages Pvt. Ltd.

4)That, applicant permanent residence of 288-C, Chandakya Marg, Chhajupur, Delhi-32.

5) That, in disposal of the case took the time.

6)That, other grounds shall be urged at the time of final hearing.''

Thus, it is the case of the applicant that he is neither the Director nor any signatory authority of M/s.Saksham Beverages Private Limited, whereas

M/s. Saksham Beverages Private Limited had issued a letter confirming that the applicant is authorized to sign excise papers on behalf of M/s.

Saksham Beverages Private Limited, but the said certificate was taken out from the Case Diary when another set of Case Diary was sent in the

present case. The set of photo copy of Case Diary which has been sent in the present case, has not been numbered also. Apparently, it has been

done so as to take out certain documents from the Case Diary with a clear intention to mislead the Court while considering the specific grounds raised

by the applicant. Thus, prima facie, it appears that Sunil Dutt Bhatt, who is posted as Assistant District Excise Officer, Circle Dabra/Bhitarwar,

Gwalior has joined hands with the applicant, so that by suppressing the material facts the applicant may succeed in obtaining anticipatory bail from this

Court. Because when the material document is not sent along with the case diary, then even the Public Prosecutor would not succeed to point out

any document in reply to specific grounds raised by applicant. Thus, it is a clear case of making an attempt of playing fraud on the Court.

That is not the end of the matter.

It was further argued by counsel for the applicant that M/s. Saksham Beverages Private Limited is holding a licence and, therefore, it has not

committed any offence even if it has sold the liquor to Sayaji Hotel Limited, Indore. The set of photo copy of Case Diary which has been sent by

Sunil Dutt Bhatt, Assistant District Excise Officer, Gwalior in this case also does not contain any document to controvert the submissions made by the

counsel for the applicant. However, as the Court was conscious of the fact that the Court has seen certain communications written by different

authorities, pointing out that M/s. Saksham Beverages Private Limited is not competent to export liquor outside the State of Haryana and, therefore,

the set of photo copy of Case Diary which was sent in MCRC 4459/2018, was called from the office of Additional Advocate General, Gwalior.

This Court while deciding the anticipatory bail application of co-accused Vijay Kumar in MCRC 4459/2018 has passed the following order:-

This is first application under Section 438 of CrPC for grant of anticipatory bail.

The applicant apprehends his arrest in connection with Crime No.601/2017 registered at Police Station District Excise Office, Gwalior for offence

under Sections 34(1)(a), 34(1)(b) and 34(2) of the MP Excise Act.

It is submitted by the counsel for the applicant that the applicant is the authorized person of M/s. Sakhi Rail Parcel Service. A consignment containing

22 boxes was booked from Railway Station Hazrat Nizamuddin to Railway Station Habibganj, Bhopal and accordingly, the applicant had loaded the

said consignment in the train and the applicant is not responsible for any illegalities, which have been committed by either Assistant Excise

Commissioner, Indore, MP or Sayaji Hotel Limited, Indore or consignor. The applicant has acted as transporter only and if the liquor was being

transported in an illegal manner, then no mens rea can be attributed to the applicant. If there was any violation of the terms of agreement

between M/s. Sakhi Rail Parcel Service, New Delhi and the Railways, then it may result civil consequences or may be punishable under Section

163 of the Indian Railways Act, but no other offence can be said to have been committed by the applicant. It is further submitted by the counsel for

the applicant that the applicant had cooperated with the Investigating Officer and whenever, he was called for investigation, he appeared before the

Investigating Officer and a notice was given to the effect that the charge sheet/complaint shall be filed before the Court of competent jurisdiction on

16th January, 2018 and accordingly, the application for grant of anticipatory bail was filed. Thus, it is clear that the applicant had never misused the

liberty and on that ground also, he may be granted anticipatory bail.

Per contra, it is submitted by the counsel for the State that Sayaji Hotel Limited, Indore applied for importing 960 bottles of English wine from M/s

Saksham Beverages Private Limited, Gurgaon (Haryana) and permission was sought from the Excise Department and accordingly, on the

recommendation of Assistant Excise Commissioner, Indore, the Assistant Excise Commissioner, Moti Mahal, Gwalior issued a permit to import 960

bottles of English wine including 480 bottles of 355 ml of beer, 480 bottles of 330 ml of beer and 30 bottles of 750 ml of wine. Accordingly, M/s.

Saksham Beverages Private Limited issued a bilti for transportation of 960 bottles of liquor. Thereafter, instead of 30 bottles of blane wine & 960

bottles of bear, M/s. Saksham Beverages Private Limited supplied the following quantity of liquor:-

 Sl.No. Description of good Quantity Rate Per  Amount

STELLA ARTOIS BEER (330 ML)Â 120 BTLÂ Â 55.00 BTLÂ 6,600.00

JAGERMISTER (750 ML)Â Â 24 BTLÂ Â Â 1,100.00 BTLÂ Â 26,400.00 3. HOEGAARDEN BEER (330 ML) 480 BTLÂ Â Â 58.00 BTL

27,840.00

CORONA EXTRA (355 ML) 240 BTLÂ Â 58.00 BTL 13,920.00 5. ASAHI BEER (330 ML) 120 BTLÂ Â 58.00 BTLÂ 6,960.00 6. Bricchetto

Red Wine (750 ML) 12 BTLÂ 900.00 BTL 10,800.00

         92,520.00 Output CST @ 2% 2% 1,850.40 TCS on Sale @ 1% 1%   944.00

 Round Off  ()  0.40

 Total 996 BTL      Rs. 95,314.00

Amount Chargeable (in words)

INR- Ninety Five Thousand Three Hundred Fourteen Only.

Thus, the liquor supplied by M/s. Saksham Beverages Private Limited, was contrary to the permission granted by the Excise Department. It is further

submitted that an information has been collected from the Excise Department, Gurugram with regard to the area of operation of M/s. Saksham

Beverages Private Limited, and the following reply has been given by Deputy Excise and Taxation Commissioner (Excise), Gurugram (West):-

''From

Dy. Excise & Taxation Commissioner, (Excise) Gurugram (West) To

Sunil Dutt Bhatt,

Asstt. Excise and Taxation Officer. Gwalior.

No. 660/Ex. Dated 19/09/2017.

Subject: Regarding P-8 memo No. 601/2017-18 of imported liquor Gurugram to Indore.

Memo:-

On the subject cited above, the information required by you are as under:-

The attested copy of license of M/s. Saksham Beverages Pvt.Ltd. which was L-1BF, licensee in Gurugram for the year 2016-17 attached

herewith.

No export of imported liquor was permitted to M/s. SakshamBeverages Pvt. Ltd., L-1BF outside Haryana in Financial Year 2016-17.

No export Permit was given to M/s. Saksham Beverages Pvt.Ltd. L-1BF, Gurugram in the Financial Year 2016-17.

In Haryana state “for sale in Haryana onlyâ€​ liquor are allowedto sale only.

In state of Haryana L-1BF can take his supply of importedliquor from Bounded ware House within India & give supply of imported liquor to all L-1

(Wholesale of IMFS/IFL/Beer) & L-4/L-5 (Bar and Restaurant) within the Haryana State.

 Dy. Excise & Taxation Commissioner, (Excise) Gurugram (West) ''

Another letter dated 16/08/2017 has been sent by SPIO-ETO (Excise) Gurugram (West) according to which the sale of liquor from L-1BF is allowed

only to L-1/L-4/L-5 licensee in the State of Haryana only. Thus, it is clear that M/s. Saksham Beverages Private Limited was holding L-1BF licence

in Gurugram and was only allowed to trade with in the State of Haryana and M/s. Saksham Beverages Private Limited was not authorized to export

imported liquor and in spite of that, the Assistant Excise Commissioner, Indore as well as Assistant Excise Commissioner, Moti Mahal, Gwalior

wrongly issued permission to Sayaji Hotel Limited, Indore for purchasing/importing imported liquor from M/s. Saksham Beverages Private Limited.

Thus, it is clear that the Excise Department without verifying that whether M/s. Saksham Beverages Private Limited is competent to export the

imported liquor out of State of Haryana or not, issued the permit in favour of M/s. Saksham Beverages Private Limited, which was contrary to law.

Similarly, Sayaji Hotel Limited, Indore had also sought permission to import the imported liquor from M/s. Saksham Beverages Private LimitedÂ

which was not authorized to export liquor out of State of Haryana. Thus, the permission sought by Sayaji Hotel Limited, Indore was also contrary to

law. It is submitted that however, it appears that the investigation has not been done with regard to role of Sayaji Hotel Limited and the Excise

Department. It is clear that M/s. Saksham Beverage Private Limited was not competent to export liquor out of State of Haryana. Furthermore, from

the bilti issued by M/s. Saksham Beverages Private Limited in favour of Sayaji Hotel Limited, Indore, it is clear that there is no mention of truck

number, transport permit issued by the Excise Department of State of Haryana, the name of driver of the truck or even the route of transportation. On

the contrary, it appears that in order to avoid the checking at the toll tax booth, M/s. Saksham Beverages Private Limited decided to transport the

liquor through Railway and accordingly, M/s. Sakhi Rail Parcel Service booked 22 boxes/cartons for transportation from Railway Station Huzrat

Nizamuddin to Railway Station Habibganj, Bhopal. Sayaji Hotel Limited is situated at Indore and the imported liquor should have been sent to Indore

but from the manifest issued by M/s. Sakhi Rail Parcel Service, it is clear that the goods were to be unloaded at Railway Station Habibganj, Bhopal

which is 250 kilometers away from Indore. Although direct train from Hazrat Nizamuddin to Indore is available, but even then the consignment was

booked for Railway Station Habibganj, Bhopal, which indicates towards the racket dealing with the imported liquor in an illegal manner. It is further

submitted that as per the agreement, M/s. Sakhi Rail Parcel Service and the Railway Department, a declaration should have been made on the

consignment with regard to its contents but M/s. Sakhi Rail Parcel Service deliberately did not make any declaration to that effect, for the obvious

reason that the transportation of liquor through Railway is prohibited. The Chief Parcel Supervisor, North- Central Railway, Gwalior by its letter dated

11/03/2017 has specifically informed that transportation of liquor by Railway is prohibited. Even otherwise, as per Clause 9.11 of the agreement

executed between the Railways and M/s. Sakhi Rail Parcel Service, it is clear that the commodities which were prohibited by the Railway, shall in no

case, be allowed to be loaded in the leased parcel space.

Clause 9.11 of the agreement reads as under:-

“9.11. Commodities listed in Red Tariff, offensive, contraband, dangerous, explosive and any other commodities which are prohibited by the

Railway or banned by the Civil Authorities from time to time shall in no case be allowed to be loaded in the leased Parcel space.''.

Similarly, Clause 9.14 provides as under:-

''9.14. In case of false declaration of any commodity, the lease holder and owner of the goods shall be punishable under section 163 of Indian

Railways Act 1989.

Thus, the false declaration/non-declaration of any commodity by the leaseholder and owner of the goods is punishable under Section 163 of Indian

Railways Act. In the present case, the applicant knew this fact that the transportation of liquor through Railway is prohibited. In spite of that, without

making any declaration with regard to contents of cartons, imported liquor was booked for transportation from Hazrat Nizamuddin Railway Station to

Habibganj Railway Station, Bhopal. It is further submitted that when Train No.12156 reached at Gwalior Railway Station on 11th March, 2017, it was

found that the coach was overloaded and accordingly, 181 packets were unloaded at the Railway Station Gwalior. After the packets were unloaded, it

was found that from one packet there was leakage of liquid and was found that the leakage appears to be liquor and accordingly, on verification of out

of 181 cartons, 22 cartons were found containing liquor and there was no declaration on the cartons with regard to the contents and merely

“Bhopal†was mentioned. Thus, it is clear that the applicant was knowing this fact that the cartons contain the prohibited material, which cannot

be transported through the Railway and, therefore, with deliberate intention, no declaration was made, and even address of the recipient of

consignment was also not mentioned and accordingly, only the destination ''Bhopal†was mentioned. It is further submitted that the alcohol is highly

inflammable liquid and in case of fire, it could have caused huge damage to life, passengers and property of the Railway. Under these circumstances,

it is submitted that where, right from filing an application seeking permit to import the liquor till delivery of the said imported liquor is contrary to law,

therefore, it indicates towards the racket operating, contrary to the law of land and accordingly, the applicant may not be granted anticipatory bail.

Considering the aforesaid facts and circumstances of the case, this Court does not find it to be a fit case for grant of anticipatory bail. The application

is hereby rejected.''

Thus, it is clear that this Court while deciding the anticipatory bail application of co-accused Vijay Kumar had specifically taken note of the

submissions made by Public Prosecutor that M/s. Saksham Beverages Private Limited, is not competent to export liquor out of the State of MP, but

in spite of that, the Excise Officers of Gwalior and Indore allowed Sayaji Hotel Limited, Indore to import/ purchase any liquor from M/s. Saksham

Beverages Private Limited. While deciding the anticipatory bail application of co-accused Vijay Kumar in MCRC 4459/2018, this Court has taken note

of the submissions made by counsel for the State that the permission to M/s. Saksham Beverages Private Limited was wrongly granted by Excise

Department and Sayaji Hotel Limited, Indore had also wrongly sought permission to purchase liquor from M/s. Saksham Beverages Private Limited.

However, surprisingly and deliberately, Sunil Dutt Bhatt, Assistant District Excise Officer, Gwalior had not sent copy of the letter written by Dy.

Excise & Taxation Commissioner, (Excise), Gurugram (West) in reply to the letter No.660 dated 19/09/2017 written by Sunil Dutt Bhatt, Assistant.

Excise & Taxation Officer, Gwalior. The letter is reproduced as under:-

''From

Dy. Excise & Taxation Commissioner, (Excise) Gurugram (West) To

Sunil Dutt Bhatt,

Asstt. Excise and Taxation Officer. Gwalior.

No. 660/Ex. Dated 19/09/2017.

Subject: Regarding P-8 memo No. 601/2017-18 of imported liquor Gurugram to Indore.

Memo:-

On the subject cited above, the information required by you are as under:-

The attested copy of license of M/s. SakshamBeverages Pvt. Ltd. which was L-1BF, licensee in Gurugram for the year 2016-17 attached

herewith.

No export of imported liquor was permitted to M/s.Saksham Beverages Pvt. Ltd., L-1BF outside Haryana in Financial Year 2016-17.

No export Permit was given to M/s. SakshamBeverages Pvt. Ltd. L-1BF, Gurugram in the Financial Year 2016-17.

In Haryana state “for sale in Haryana onlyâ€​ liquor areallowed to sale only.

In state of Haryana L-1BF can take his supply ofimported liquor from Bounded ware House within India & give supply of imported liquor to all L-1

(Wholesale of IMFS/IFL/Beer) & L-4/L-5 (Bar and Restaurant) within the Haryana State.

  Dy. Excise & Taxation Commissioner, (Excise)

Gurugram (West) ''

Another letter was sent by SPIO -cum-AETO (Excise) Gurugram (West), which was addressed to Sunil Dutt Bhatt, Assistant District Excise Officer,

Gwalior in reply to his letter No.541, dated 16/08/2017, has also not been annexed in the present set of Case Diary. The letter which was received in

the Office of Excise Department is reproduced as under:-

''From

SPIO-cum-AETO (Excise)

Gurugram (West)

To

Sh. Sunil Dutt Bhatt,

Dy. Excise Officer, O/o. Dy. Excise Officer, Gwalior.

No. 541 /Ex.Dated 16/08/2017

Subject: Information under section 6(3) of the Right to Information Act, 2005 to Sh. Sunil Dutt Bhatt in regard to M/s Saksham Breweries Pvt. Ltd.

(L-1BF).

Reference: Your office memo dated 01.07.2017.

Memo:

On the subject cited above, the sale of liquor from L1BF is allowed only to the L-1/L-4/L-5Â licensee in the State of Haryana only.

The sale outside Haryana is not allowed for L-1BF.

SPIO- AETO (Excise)

 Gurugram (West) ''

Thus, it is clear that Sunil Dutt Bhatt, Assistant District Excise Officer, Gwalior has suppressed the material documents/letters issued by the

authorities of State of Haryana, pointing out that M/s. Saksham Beverages Private Limited is not competent to sell liquor outside the State of Haryana.

Thus, it is a clear case of making an attempt by Sunil Dutt Bhatt, Assistant District Excise Officer, Circle Dabra/Bhitarwar, District Gwalior to

mislead the Court by deliberately suppressing important documents from the Court. Surprisingly, all the documents which have been suppressed by

Sunil Dutt Bhatt, Assistant District Excise Officer were addressed to him only. Therefore, Sunil Dutt Bhatt was very much aware of the fact that

certain communications have been made by different authorities of State of Haryana pointing out the area of operation of M/s. Saksham Beverages

Private Limited and Sunil Dutt Bhatt was well aware of the fact that M/s. Saksham Beverages Private Limited, was not competent to sell liquor

outside the State of Haryana.

The set of photo copy of case diary in MCRC No. 4495/2018, was sent by Sunil Dutt Bhatt after attesting the same. Similarly in this case also, the set

of phot ocopy of diary has been sent by Sunil Dutt Bhatt after attesting the same. Thus, it is clear that both the sets of photo copies of case diary were

sent by Sunil Dutt Bhatt to the Office of Addl. Advocate General. Thus, prima facie, Sunil Dutt Bhatt, Assistant District Excise Officer, Gwalior is the

person responsible for sending both the sets of photo copies of case diary to the Office of Addl.Advocate General, Gwalior.

Under these circumstances, this Court is of the considered opinion that prima facie, the act of Sunil Dutt Bhatt, Assistant District Excise Officer,

Gwalior of suppressing the material documents from this Court, by not sending the same in the set of photo copy of Case Diary diary, which was sent

by him to the Office of Additional Advocate General, Gwalior on 05/04/2018 in MCRC 12005/2018, is a clear attempt to not only play a fraud on the

Court, but also to mislead the Court and is a clear interference in the dispensation of justice. Therefore, looking to the gravity of allegations against the

applicant and other coaccused persons and the attempt of Sunil Dutt Bhatt, Assistant District Excise Officer, issue notice to Sunil Dutt Bhatt,

Assistant District Excise Officer, Gwalior, to show cause as to why the proceedings for contempt of Court be not initiated against him.

The Office is directed to register the case separately. The Office is directed to seal the set of photo copy of Case Diary sent by Sunil Dutt Bhatt,

Assistant District Excise Officer in MCRC 4459/2018 and in MCRC 12005/2018, and the same be kept in the file of contempt proceedings.

So far as the submissions made by the counsel for the applicant are concerned, all those submissions are just contrary to the record and surprisingly,

all those documents, which could have controverted the submissions made by counsel for the applicant, have been suppressed by Sunil Dutt Bhatt,

Assistant District Excise Officer, Gwalior.

Considering the facts and circumstances of the case, this Court is of the considered opinion that this is not a fit case for grant of anticipatory bail. The

application is accordingly rejected.

The Office is directed to send a copy of this order to the trial Court/ committal Court immediately for placing the same in the record of the Court.