Excerpt
Six criminal misc. petitions were filed by the petitioners alleging that an illegal and ill-motivated raid has been conducted by the Police of Bhiwadi Police Station at the Golden Bottling Company’s factory. Further, the court allowed these petitions and therefore quashed the FIR filed in Bhiwadi Police Station. Justice Sanjeev Prakash Sharma correspondingly imposed a penalty of Rs 10 lakh on police authorities as a cost of seizing and closing down the company since October 2020.
Facts of the Case
In the present case six criminal misc. petitions were filed by the petitioners alleging that an illegal and ill-motivated raid had been conducted within the premises of the Golden Bottling Company’s factory by the Police of Bhiwadi Police Station. The affianced factory was engaged in the manufacturing and bottling of Indian Made Foreign Liquor (IMFL) as well as Country Liquor in terms of a license issued by the Rajasthan Excise Department. Further, without there being any complaint from any person, the SHO of the Bhiwadi Police Station himself registered an FIR wherein he enumerated that while he was on patrolling duty, he received a piece of information from one of his informants that in the garb of producing country liquor the factory was manufacturing IMFL illegally. And hence a raid was directed within the factory premises by the SHO along with the assistance of a sub-inspector from the Gujarat Police Team and a search team at 1:30 PM on 11/10/2020. The FIR was lodged under Section 308 IPC, Sections 14, 16, 19, and 54 of the Rajasthan Excise Act, 1950 by the SHO that stated that the company did not have any license for IMFL and it was suspected that the workers in the company informed that under the guise of country-made liquor, different brands of liquor were being manufactured without authority and were eventually being smuggled to Bihar and Gujarat. Besides this, it was also mentioned in the FIR that the cartoons wherein the liquor was packed did not contain a warning of liquor being dangerous for health. So, because of these allegations, a total of 10077 cartoons were seized from the factory which included 1200 cartoons loaded in the vehicle. Also, two trucks which were parked in the factory, a computer, CPU, and the accounts of the factory along with DVR and CCTVs were seized by the Police. During the Raid, an Excise Officer also accompanied the Police. Further, this Excise Officer registered another FIR against the company under Section 58 C of the Rajasthan Excise Act, 1950 alleging that the work of the factory was carried out in the night and there was a violation of conditions of the license. Furthermore, the Petitioners: Mr. Surendra Solanki, Mr Pradeep Mishra, and Mr Abhishek Kharb, were arrested in Delhi by the Police Authorities.
Petitioner’s Arguments
The Petitioners contended that the raid conducted by the SHO was illegal. Firstly, the Petitioners Surendra Solanki and Ashok Solanki contended that there was no prior notice served to them before their arrest under Section 41 CrPC. Further, the Counsel of Petitioners also stated that the Company owned a valid license for manufacturing IMFL as well as a valid license for manufacturing and sale of Country Liquor. And the same was even shown to the concerned Police Officers by Mr Pradeep Mishra, Manager of the Company. But despite the license been showed up by the Petitioners, the raid was conducted. Even the Excise Inspector, who came later on, found an offence under Section 58-C of the Rajasthan Excise Act, 1950 for violation of the conditions of the license wherein only a fine was to be imposed. Moreover, the power under Section 43 of the Excise Act is only available with the Excise Inspector. And the Police can’t take over or usurp this special power from the Excise Officer by conducting a parallel investigation for the factory which already had an Excise Officer appointed for its day-to-day operations. In addition to this, the Petitioners alleged that the Police Authorities had registered the FIR to only support the local liquor cartels as the authorities were available with ample knowledge about the proximity of a valid license of such a Company which was established a long time ago. And the mentioning of such allegations in the FIR itself showed a biased and malicious approach of the SHO for extraneous purposes and considerations. Moreover, there was no document in the FIR that indicated some type of smuggling activity done by the Petitioners and hence the entire proceedings were vexatious and the Police Officials deserved to be punished for having misused their power. Learned counsel further submitted that no case under Section 308 IPC can be said to be made out and the FIR suffered from malice in law. And thence, even the FIR needs to be quashed.
Respondent’s Arguments
The Counsel of Respondents contended that the Police in their course of the investigation and after recording statements of the complainant and other witnesses found that the petitioners were involved in the illegal acquisition of spirit and other allegations were made because of the vehicles having different chassis numbers. This illegal procurement of spirit was alleged to be done from Karnal. And this illegal procurement of liquor and its transportation to different states caused a huge loss to the Excise Department and the State Exchequer. Moreover, this was also in violation of the statutory provisions. Hence, the Respondents seized the unauthorized labels and the Trucks. Besides this, the respondents asserted that there are express and implied provisions of law that enable a Police Officer to initiate legal action if there is a commission of a punishable offence. Moreover, the FIR registered at Police Station and the FIR registered by the Excise Department was diverse as different offences were suspected in both of these FIRs. It was further submitted that inherent power under Section 482 Cr.P.C. should not be exercised by this Court.
Court’s Observations
The Court considered the aspects of both parties. And to have a more clarified vision the Court observed Sections 9, 10, 14, 16, 19, 43, 44, 45, 46, 47, 48, 50, 54, 58, 61, and 67(1)(a) of the Rajasthan Excise Act, 1950. As per the aforesaid Sections, the Court found that as per the notification under the Excise Act the empowering of other Police Officials could be exercised by the State only when there is no Excise Officer available or holding a post. Such powers can’t be exercised by a police officer at the same time when the Excise Officer is already available on the site. So, in the context of the present case, the Court found that the Excise Officer was available on the spot and he had even registered an FIR. And thus, under the aforesaid sections, a separate FIR cannot be registered by the Police under Section 14, 16, 19, and 54 of the Excise Act at the same time as already an Excise Officer was available on the spot. Moreover, the registration of two FIRs by two different agencies would not only create chaos and confusion but would also result in arbitrary exercise of power. Apart from this, even the Excise Inspector had not found any of the offences committed by the company under Sections 14, 16, 19 read with Section 54 of the Excise Act. Furthermore, mentioning that the factory does not have a license in the FIR, despite the revelation made by the Excise Inspector that a violation of conditions of the license was made by the factory, amounts to the abuse of power by the Police. Moreover, if the SHO himself registers an FIR at the behest of his superior officers, contrary to the factual position by mentioning incorrect facts, the Court will have to exercise its inherent powers under Section 482 Cr.P.C. to quash such vexatious proceedings.
Further, the Court noticed that in the FIR, the Police has also mentioned an allegation under Section 308 IPC i.e., Attempt to commit culpable homicide. This allegation was made by the Police because of the non-mentioning of the health warning on the packages. But in reality, no person was found to be harmed as the liquor was not sold yet but was actually in the phase of production. And the cartoons were only lying on the premises as the manufacturing process was still going on and the packaging was not complete yet. Moreover, this Non-mentioning of health warning would only fall within the purview of the notification issued under the Food Safety and Standards Act, 2006 and violation thereto. And thus, the FIR registered under Section 308 IPC is not made out.
Lastly, the allegation of the Police relating to the vehicle parked in the premises would not constitute an offence under Section 420 IPC as the concerned bottling company plant was not the owner of the trucks. And mere non-mentioning of labels on the cartoons would not bring the case under Section 420 IPC.
To have further information, the Court examined the case diary, the investigation conducted the WhatsApp Chatting, CDR & CAF diary. By scrutinizing these sources, the Court concluded that the entire initiative taken by the Bhiwadi Police was a vexatious investigation conducted without there being any basis or any allegation of there not being a license of IMFL and Country Liquor. The Court also gave references to some prominent cases.
Court’s Decision
From the discussions and the findings, the Court concluded that the investigation, seizure, and entry in the factory premises by the concerned local SHO Jitendra Solanki, Police Station Bhiwadi was without authority and he had abused his powers available under the Police Act. Further, the arrest made by the Police was illegal as no notice under Section 41 Cr.P.C. was served on the petitioners before arresting them. And thus, the overzealous attempt of the SHO supported by his superior officers was found to be illegal and such exercise of power by the Police officials was found to be an act of harassment, atrocity and is a case of Police atrocity for which the petitioners would be free to take up appropriate remedy in law. Apart from this the Director General of Police, Rajasthan, Police Headquarters, Jaipur was directed to take necessary departmental action. And hence the FIR registered by the Police at Bhiwadi dated 12/10/2020 was quashed & set aside with all consequential benefits. Further, the Court had directed the Police Authorities to pay a cost of Rs.10,00,000/- (Rs. Ten Lac) to the Company for seizing and closing down the Company and not allowing the Company to do its business since October 2020.
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