Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.209 OF 2023
Tushar S/o. Anil Jaiswal,
Aged 37 Yrs., Occ.: Business, Partner/
Licensee of M/s. R. M. Jaiswal Wine
Shop, situated at Gandhi Chowk, Wani,
Tq. and P.S. Wani, District Yavatmal,
R/o. Row House No.9, Vrindavan
Park, Bansal Layout, Varora Road,
Wani, Dist. Yavatmal .... PETITIONER
V E R S U S // //
State of Maharashtra,
Through P.S.O. Shirpur,
Tq. & P.S. Wani, Distt. Yavatmal,
In Crime No.203/2021 u/s. 65(a),
65(e) of Maharashtra Prohibition Act,
1949 and u/s. 130(1), 177 of Motor
Vehicle Act, 1988 ... RESPONDENT
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Mr. Anand Jaiswal, Sr. Adv. with Ms Radhika Bajaj, Advocate with Ms Aditi
Panpalia, Advocate for the petitioner
Ms M. H. Deshmukh, APP for the respondent/State
-----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 24/04/2023
O R A L J U D G M E N T :
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Advocates for the parties.
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3.
In this criminal writ petition, challenge is to the
judgment and order dated 16.11.2022 passed by the learned
Additional Sessions Judge-2, Kelapur, Yavatmal whereby the
learned Sessions Judge rejected the revision application and
confirmed the order dated 07.01.2022 passed by the learned
Judicial Magistrate First Class, Wani. Learned Magistrate, Wani by
his order dated 07.01.2022 rejected the application made by the
petitioner under Section 457 of the Code of Criminal Procedure,
1973 for release of seized country liquor on supratnama.
4. The relevant facts are as follows:
The petitioner is having licence to run a liquor shop
at Wani. The seized country liquor bottles were purchased by him
from the distributor M/s. Shree Sai Enterprises, Yavatmal. The
boxes of the liquor bottles, as per the transport pass, were to be
transported in a vehicle bearing registration No. MH-29/BE-0179
to Wani by the route Wadgaon to Yavatmal Umari Wani. On
05.06.2021 on Ghugus to Chandrapur route at Chargaon Chowki,
Taluka Wani, the officials of Shirpur police station intercepted the
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said vehicle. On search of the vehicle, the police found that it was
containing country liquor bottles worth Rs.8,01,600/-. The police
seized the country liquor bottles. Crime bearing No. 203 of 2021
was registered under Section 65(a) and (e) of the Maharashtra
Prohibition Act, 1949 (hereinafter referred to as ‘the Prohibition
Act’) and Sections 130(1) and 177 of the Motor Vehicles Act, 1988.
It is the case of the prosecution that at the relevant time there was
prohibition on sell of liquor in District Chandrapur. The liquor
seized in this case instead of bringing to the Wani was being
transported to Chandrapur. When the vehicle was intercepted it
was not driven by the driver whose name was mentioned in the
transport pass. The vehicle was taken in the direction of the
Chandrapur by a route which was not at all mentioned in the
transport pass. The driver and one more person were found in the
vehicle. Later on, the investigation revealed that the petitioner
illegally transported the liquor contrary to the transport pass to the
co-accused Nidhansingh Jagatsingh Dhagadi, who are from
Chandrapur. The seized liquor is lying in the custody of the police.
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5.
The petitioner, who is the owner of the liquor
bottles, made the application for return of the liquor bottles on
supratnama. It is his case that he is having a licence to run a liquor
shop at Wani. He had purchased the liquor bottles from distributor.
The liquor was being transported from Wadgaon to Wani. It is
further stated that driver inadvertently taken the wrong route. The
place where the vehicle was intercepted falls within the limits of
Wani Taluka. It is submitted that he has right to sell the liquor. If
the liquor is not handed over to him then he would suffer
irreparable loss. His business would be affected. He is ready to
furnish the undertaking for production of the liquor as and when
directed by the Court.
6. The prosecution opposed the application. It is
contended that there was breach of transport pass. The route
mentioned in the transport pass was changed. The vehicle was
intercepted on Chandrapur route at a distance of near about 13 Km
away from Wani. It is further stated that the Chandrapur border
was hardly 10-15 km away from the spot. It is stated that the huge
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quantity of liquor was being transported to Chandrapur District
where there was prohibition on the sell of the liquor. It is further
stated that apart from the substantive sentence for the commission
of offence, Section 98 of the Prohibition Act provides for the
confiscation of the liquor.
7. After hearing the parties learned Magistrate found
that no case was made out for release of the liquor. The petitioner
who is one of the accused challenged the said order by filing the
revision application. Learned Additional Sessions Judge dismissed
the revision application. The petitioner is, therefore, before this
Court.
8. I have heard learned senior Advocate Mr Anand
Jaiswal for the petitioner and Ms M. H. Deshmukh, learned APP for
the State. Perused the record and proceeding.
9. Learned senior Advocate Mr Jaiswal submitted that
the order passed by the learned Additional Sessions Judge, Yavatmal
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cannot be sustained. Learned Senior Advocate submitted that the
reasons recorded by the learned Additional Sessions Judge are not in
accordance with law. Learned senior Advocate submitted that
merely because Section 98 of the Prohibition Act provides for
confiscation of the liquor, the Court cannot reject the application for
handing over the liquor to the owner on supratnama. Learned
senior Advocate submitted that the liquor is not spurious liquor.
Learned Advocate further submitted that it was purchased, by
complying all the provisions and rules, for sell at the licenced shop
of the petitioner at Wani. Learned Advocate submitted that
somehow or the other, the driver of the vehicle missed the route and
traveled on Ghugas-Chandrapur route. Learned senior Advocate
submitted that simply because of this the offence under Section 65
(a) and (e) of the Prohibition Act would not get attracted.
10.
As against this, learned APP submitted that in the
transport pass the route for transportation of the liquor in the
vehicle was mentioned. Learned APP further pointed out that in
the transport pass name of the driver of the vehicle was also
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mentioned. Learned APP pointed out that the driver named in the
transport pass was not driving the vehicle when it was intercepted by
the Shirpur Police Station. Learned APP further pointed out that
the said driver was not holding a valid licence. Learned APP
submitted that prima facie offence under Section 65(a) and (e) of
the Prohibition Act has been made out. Five accused are facing the
prosecution for the said offence. Learned APP submitted that on
proof of the charge the seized liquor is liable to be confiscated.
Learned APP submitted that the provisions of Section 98 are
mandatory. Learned APP further submitted that Section 99 of the
Prohibition Act would also stand in the way of the petitioner.
11. In order to appreciate the rival submissions I have
perused the record and proceedings. The admitted facts having
bearing with the controversy needs to be highlighted at the outset.
The petitioner has admitted that they were on the way from
Yavatmal to Wani. The driver of the truck missed the route and
carried the vehicle on Ghugas-Chandrapur route. It is undisputed
that this route was not mentioned in the transport pass. Similarly,
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the driver named in the transport pass was not driving the said
vehicle at the relevant time. At the relevant time, there was
prohibition on sell of liquor in Chandrapur District. The vehicle
carrying the country liquor was intercepted on the route proceeding
towards Chandrapur. Chandrapur District border was hardly at a
distance of about 10-15 Km from the said spot. It is further seen
that the said spot was 13 Km ahead of Wani. It is the case of the
prosecution that this transportation of the liquor by the route to
Chandrapur District was contrary to the transport pass granted by
the authority.
12.
In the above background, Sections 98 and 99 of the
Prohibition Act are required to be considered. For the convenience
Section 98 is extracted below:
“98. Things liable to confiscation.- (1) Whenever any offence
punishable under this Act has been committed -
(a) any intoxicant, hemp, mhowra flowers, molasses,
materials, still utensil, implement or apparatus in respect of
which the offence has been committed.
(b) where in the case of an offence involving illegal possession
the offender has in his lawful possession any intoxicant,
hemp, mhowra flowers or molasses other than those in respect
of which an offence under this Act has been committed, the
entire stock of such intoxicant, hemp, mhowra flowers or
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molasses,
(c) where in the case of an offence of illegal import, export or
transport, the offender has attempted to import, export or
transport any intoxicant, hemp, mhowra flowers or molasses,
in contravention of the provisions of this Act, rule, regulation
or order or in breach of a condition of a licence, permit pass
or authorization, the whole quantity of such intoxicant,
hemp, mhowra flowers or molasses which he has attempted to
import, export, or transport.
(d) where in the case of an offence of illegal sale, the offender
has in his lawful possession any intoxicant, hemp, mhowra
flowers or molasses other than that in respect of which an
offence has been committed, the whole of such other
intoxicant, hemp, mhowra flowers or molasses,
shall be confiscated by the order of the Court.
(2) Any receptacle, package or covering in which any of the
articles liable to confiscation under sub-section (1) is found
and the other contents of such receptacle, package or covering
and the animals, carts, vessels or other conveyances used in
carrying any such article shall like-wise be liable to
confiscation by the order of the Court.”
13. Perusal of this Section would show that whenever
any offence punishable under this Act mentioned in Section 98 has
been committed then the intoxicant, hemp, mhowra flowers or
molasses etc. is liable to be confiscated by the order of the Court.
This section does not state that such confiscation has to be ordered
only when the person has been found guilty and punished for the
said offence. For the purpose of confiscation the condition
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precedent is the commission of an offence punishable under the
Prohibition Act.
14. In the above context, it would be necessary to
consider the provisions of Section 99 of the Prohibition Act. It
provides for return of things liable to confiscation to bona fide
owners. For the purpose of convenience Section 99 is extracted
below:
“99. Return of things liable to confiscation to bona fide
owners. - When during the trial of a case for an offence under
this Act the Court decides that anything is liable to
confiscation under the foregoing section, the Court may, after
hearing the person, if any, claiming any right thereto and the
evidence, if any, which he produces in support of his claim,
order confiscation, or in the case of any article other than an
intoxicant, hemp, mhowra flowers or molasses give the owner
an option to pay fine as the Court deems fit in lieu of
confiscations:
Provided that no animals, cart, vessel, vehicle or
other conveyance shall be confiscated if the owner thereof
satisfies the Court that he had exercised due care in
preventing the commission of the offence.
15. Section 99 provides that if the Court decides during
the trial that anything is liable to be confiscated under Section 98
then Court may, after hearing the person, if any, claiming any right
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thereto and the evidence, if any, which he produces in support of his
claim, order confiscation, or in the case of any article other than an
intoxicant, hemp, mhowra flowers or molasses give the owner an
option to pay fine as the Court deems feet in lieu of confiscation.
This second part of section 99 clearly indicates that confiscation is
the only option in case of an intoxicant, hemp, mhowra flowers or
molasses.
16.
It is to be noted that, therefore, the Court trying the
offence would be required to consider the combine effect of Sections
98 and 99 of the Prohibition Act and pass an appropriate order with
regard to the confiscation of the country liquor seized in this crime.
There is one more reason to reject the contention of the petitioner.
It is the case of the petitioner that he is the rightful owner of the
country liquor and entitled to sell the same. Even if the liquor is
returned to the petitioner, he cannot be allowed to sell the same
because the order of confiscation would be required to be passed by
the learned Magistrate at the stage of trial. It is further pertinent to
mention that if permission is granted to sell with an undertaking to
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deposit money, in my view same would not serve the purpose.
Grant of such a permission would require continuous monitoring by
the Court as well as by the Police. The sell of the liquor would take
place at the shop of the petitioner. Therefore, in my view,
considering the nature of the crime committed in this case and the
above technicalities it would not be possible to grant the prayer.
The material placed on record by the prosecution is prima facie
sufficient to conclude that the liquor, on the basis of the transport
pass, was being transported to Chandrapur. It was in flagrant breach
and violation of the condition of the transport pass. It is to be noted
that this petitioner in order to earn extra money and to satisfy his
greed seems to have indulged in this act of transporting the liquor to
a district where there was prohibition on the sell of the liquor. The
persons found in possession of the vehicle were other then the one
mentioned in the transport pass. The petitioner had, therefore,
taken risk. The defence of the petitioner that the driver
inadvertently missed the route cannot be accepted at this stage.
17.
In my view, therefore, the prayer for release of the
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liquor on supratnama cannot be granted. The liquor would be
required to be preserved till the trial is concluded for the purpose of
trial. The Court would be required to pass an appropriate order by
exercising the powers under Sections 98 and 99 of the prohibition
Act. In the facts and circumstances, I do not see any substance in
the petition. The petition is accordingly dismissed.
18.
Considering the serious nature of the crime and the
seizure of huge quantity of the country liquor, being illegally
transported in contravention of the terms of the transport pass, it
would be appropriate to direct the learned Judicial Magistrate First
Class, Wani to dispose of the case expeditiously and in any case
within three months from today. Learned Magistrate is accordingly
directed to dispose of the said case within a period of three months
from today.
19. Rule stands discharged. No order as to costs.
(G. A. SANAP, J.)
Namrata
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