Pawan Kumar vs State Of Madhya Pradesh

,,,,

This is first application under Section 439 of CrPC for grant of bail.,,,,

The applicant has been arrested in connection with Crime No.601/2017 registered at Police Station District Excise Office, 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. It is further submitted by the counsel",,,,

for the applicant that the Customs Department has issued a letter dated 30/10/2017 and has replied the different queries raised by the Investigating,,,,

Officer as under:-,,,,

''To,",,,,

Shri Sunil Dutt Bhatt.,,,,

Assistant District Excise Officer,,,,

Office of the Assistant Excise Commissioner, Padav, Gwalior -474 001. Madhya Pradesh.",,,,

Sir.,,,,

Sub:- Criminal No. 601/11-3 -17 reg.,,,,

Please refer to the letter No. Nill dated 19.9.2017 and 16.10.2017 on the above mentioned subject and the discussion held during your visit to this,,,,

office on the above date. The point wise information asked in the letter is as under:-,,,,

Customs Department deals with clearance of goods onapplicable rate of Customs & other duties. The Department does not dead with providing,,,,

licence/ authority to any party for sale of liquor from one state to other. The Customs Department's role ends once the imported goods are cleared,,,,

from port ( in this case ICD Garhi Harsaru). Besides, any person having a valid IEC (Import Export Code) can subject to the conditions as prescribed",,,,

under Customs Act, 1962 and allied Rules and Regulations, import/ export of goods from any port.",,,,

M/s. Saksham Beverage P. Ltd is a private party who is as perprovisions of the Customs Act 1962 is allowed to clear the goods (including,,,,

warehousing ) from ICD Garhi Harsaru and no license has been issued to them. However whenever the goods are stored in Custom Bonded Public,,,,

/Private Bonded warehouse a triple duty bond ( of Customs duty)/Bank Guarantee as required as per Notification is executed by the requesting party.,,,,

This is further informed that no such licences as mentioned in your letter, have been issued to any person/ company. Clearance of goods from",,,,

Customs House is governed by the provisions of Customs Act, 1962 & the allied Rules & Regulations.",,,,

M/s. Saksham Beverage P. Ltd has forwarded copies of exbond Bills of Entry and state excise permit copies (copy enclosed) on that basis they,,,,

were cleared the goods from the bonded warehouse.,,,,

No such type of pasted sticker on imported bottle kept inbonded warehouse at ICD Garhi Harsaru.,,,,

The customs department plays no role in the transportation ofgoods once they are cleared from Customs House after payment of applicable duty,,,,

under Customs Act, 1962.",,,,

Customs Department is concerned with Out of Charge ofConsignment including foreign liquor after the payment of appropriate duty, clearance",,,,

from FSSI & permit from State Excise. Once they are cleared from Customs station/Custom Bonded Warehouse, the Department does not have any",,,,

role in any manner.,,,,

With regard to point Sl. No.7 you may kindly refer to the Customs Law manual which is available in public domain @ www.cbec.gov.inunder,,,,

Customs Tab.,,,,

The copies of state excise permit issued by other states Excise Authorities are also enclosed herewith.,,,,

Yours faithfully, Encl as above.Â",,,,

Deputy Commissioner,,,,

 ICD Garhi Harsaru '',,,,

It is further submitted that the Deputy Assistant Public Information Officer of the Office of Deputy Excise and Taxation Officer (Excise) East,,,,

Gurugram by its letter which is undated, has also informed the Company under the right to information that in the year 2016-17, the L-1 BF license",,,,

is governed by the Haryana excise policy in the supply of ''Duty paid foreign liquor imported from outside India (Bottle in Origin) BIO'' under the same,,,,

are restricted up to the State of Haryana only. However interstate Import Export of ''Duty paid foreign liquor imported from outside India (Bottle in,,,,

Origin ) BIO'' is governed by the Central Excise import policy of respected importing State. In this, liquor store in the custom bonded warehouse is",,,,

directly in the supervision of Customs Department and Haryana State Excise does not issue any license/permit to anyone for exporting the ''Duty paid,,,,

for a liquor imported from outside India (Bottle in Origin) BIO'' out of Haryana State from custom bonded warehouse. Thus, it is submitted that the",,,,

export of foreign liquor outside the State of Haryana would be governed by the excise import policy of respected importing States and, therefore, it",,,,

cannot be said that the applicant has committed any offence. It is further submitted by the counsel for the applicant that in fact, M/s. Saksham",,,,

Beverages Private Limited in connivance with Excise Officers of Excise Department has issued a letter appointing the applicant as an authorized,,,,

signatory, whereas the said letter even does not contain the signatures of the applicant. The applicant was never appointed as an authorized signatory",,,,

of the Company and in fact, it appears that that the owners of the Company have played fraud with the applicant. Further, it is submitted by the",,,,

counsel for the applicant that M/s. Saksham Beverages Private Limited had issued a builty for transporting the liquor by road and however, it appears",,,,

that without information and permission of the Company, the Green Freight Carrier on its own decided to send by Railway and, therefore, neither the",,,,

Description of good,Quantity,Rate Per,Amount,

S T E L L AA RTOIS

BEER (330 ML)",120 BTL,55.00 BTL,"6,600.00",

JAGERMISTER(7 50

ML)",24 BTL,"1,100.00 BTL","26,400.00",

HOEGAARDEN

BEER (330 ML)",480 BTL,58.00 BTL,"27,840.00",

C O R O N AE XTRA

(355 ML)",240 BTL,58.00 BTL,"13,920.00",

ASAHIB EER (330

ML)",120 BTL,58.00 BTL,"6,960.00",

Bricchetto Red Wine

(750 ML)",12 BTL,900.00 BTL,"10,800.00",

,,,"92,520.00",

,"Output CST @ 2%

TCS on Sale @ 1%

Round Off

Total 996 BTL","2%

1%","1,850.4

944.00

() 0.40

Rs. 95,314.00",

Amount Chargeable (in words),,INR- Ninety Five Thousand Three Hundred Fourteen Only,,

               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,,,,

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, 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",,,,

“Bhopalâ€​ was mentioned.Â,,,,

It is further submitted by the counsel for the State that so far as the Customs Department is concerned, it is clear from the letter dated 30/10/2017 that",,,,

the Customs Department is only responsible for the collection of customs duties and once the goods passed out from the port, then the entire liability",,,,

and responsibility of Customs Department comes to an end. Thereafter, the movement of the liquor is governed by the Excise policy as well as the",,,,

licenses issued by the respective States. In the present case, M/s. Saksham Beverages Private Limited has been granted license to carry on trade in",,,,

liquor within the State of Haryana and they had no license or authority to export liquor out of Haryana. It is further submitted that the reply given by,,,,

the Assistant Public Information Officer to M/s. Saksham Beverages Private Limited to the effect that import of foreign liquor would be governed by,,,,

the import policy of the respective importing States is incorrect and until and unless the supplier or the seller is competent to export or carry on trade in,,,,

liquor outside the respective States, it cannot be said that M/s. Saksham Beverages Privates Limited was competent to trade in foreign liquor outside",,,,

the State of Haryana. So far as the authorization of the applicant is concerned, it is submitted by the counsel for the State that if the applicant is of",,,,

the view that M/s. Saksham Beverages Private Limited had fraudulently prepared the letter of authorization, then the applicant is free to take",,,,

necessary action against the guilty persons in this regard. Furthermore, it is a disputed question of fact that whether the applicant was appointed as an",,,,

authorized person on behalf of the Company or not and whether this document has been prepared by the Company in order to save the Managing,,,,

Director/owners/ responsible persons of the Company or not, can be decided only in the trial. It is further submitted that the co-accused Vijay Kumar",,,,

who is the authorized signatory of Sakhi Rail Parcel Services had also filed a petition for quashment of FIR in Crime No.601/2017. The said petition,,,,

has also been dismissed by this Court by order dated 11/05/2018 passed in MCRC 12218/2018 and the case of M/s. Saksham Beverages Private,,,,

Limited has been considered in detail in the said order also.,,,,

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 bail. The application",,,,

is hereby rejected.,,,,