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TMI Blog2017 (4) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... fences are present should not be prosecuted under those sections. The applicants herein could be said to have abetted the commission of the offences punishable under the Bombay Prohibition Act. Section 107 of the I.P.C. explains what amounts to abetment. Abetment can be by way of instigation, it can be by way of aiding any act or illegal omission and it can be in the form of a conspiracy. To put it in other words, Clause secondly of Section 107 of the I.P.C. provides that a person abets the doing of a thing, if he engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. This litigation has been contested by the State tooth and nail and why not. The reason is obvious. One may not find an open bar on a public street, but the number of cases, as on date, pending in the different Courts in the State of Gujarat, bears eloquent testimony to the fact that either the policy is not effective or something is wrong with the implementation of the law. Out of 3,99,221 criminal cases pending as on 28th February 2017 in the State of Gujar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered by the police of the State of Gujarat at the different Police Stations falling within the State of Gujarat. All the F.I.Rs. are for the offences punishable under the provisions of the Bombay Prohibition Act. The prayer in each of the applications is to quash the First Information Reports substantially on the ground that they all being the residents of Daman (U.T.) and engaged in the business of sale of liquor on the strength of a valid licence issued by the authority, they cannot be prosecuted with the other coaccused against whom F.I.Rs. have been registered in the police stations of the State of Gujarat. To put it in other words, according to the applicants, the Bombay Prohibition Act being a local law has no application so far as Daman is concerned. Unlike the Indian Penal Code, having an extraterritorial operation, the Bombay Prohibition Act applies only within the State of Gujarat and not to the Union Territory of Daman. 4 Let me take the applications one after the other. 5 The Criminal Miscellaneous Application No.8934 of 2015 has been filed by one Kantilal Gopalbhai Tandel, the 'Manager' of M/s. Bhavik Wine Shop situated at Daman. He prays that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 10 The Criminal Miscellaneous Application No.21 of 2017 is filed by the same persons referred to above namely, Bhanuben Rameshbhai Patel and Rameshbhai Jagubhai Patel, husband and wife, praying for quashing of the First Information Report bearing C.R. No.III116 of 2016 registered with the Vapi GIDC Police Station, District: Valsad for the offence punishable under Sections 66(1)(B), 65(A)(E) and 116(B) of the Prohibition Act. 11 The Criminal Miscellaneous Application No.123 of 2017 is filed by the same persons referred to above namely, Bhanuben Rameshbhai Patel and Rameshbhai Jagubhai Patel, husband and wife, praying for quashing of the First Information Report bearing C.R. No.III108 of 2016 registered with the Vasada Police Station, District: Navsari for the offence punishable under Sections 66(1)B, 65A,E, 81, 98, 99 and 116(2) of the Prohibition Act. 12 The Criminal Miscellaneous Application No.176 of 2017 is filed by the same persons referred to above namely, Bhanuben Rameshbhai Patel and Rameshbhai Jagubhai Patel, husband and wife, praying for quashing of the First Information Report bearing C.R. No.III490 of 2015 registered with the Vasada Police Station, Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the submission is that the applicants are carrying on business of sale of liquor in Daman and if the purchaser is caught with the bottles of liquor within the State of Gujarat, then they should not be held responsible, as they are not expected to keep a watch or ensure that the purchaser does not enter the limits of the State of Gujarat. 16 The learned counsel appearing for the respective applicants have raised a question of law. It is submitted that assuming for the moment that a conspiracy is said to have been hatched with the coaccused residing in the State of Gujarat for the supply of huge quantity of liquor, then the applicants cannot be prosecuted for the offence punishable under Section 120B of the Indian Penal Code, as Section 120B of the I.P.C. does not figure in Section 40 of the I.P.C., which defines or rather explains the meaning of the term 'offence'. To put it in other words, the submission is that the Bombay Prohibition Act being a local law, not applicable to a person residing and carrying on business in Daman, such person cannot be arraigned as an accused for an offence punishable under Section 120B of the I.P.C. in a case registered within the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... With reference to your letter and the subject cited above, I am directed to furnish herewith the required information to be submitted to Gujarat High Court as informed by you. 1 As per the provisions of Rule 90(5) of Goa, Daman Diu Exicise Duty Rules, 1964, the following kinds of licenses for sale of liquor are issued in Daman and Diu (copy of Rule enclosed). i. License for wholesale of foreign liquor, Indian Made Foreign Liquor or Country Liquor. ii. License for retail sale of foreign liquor, Indian Made Foreign Liquor or Country Liquor for consumption on the premises. iii. License for retail sale of foreign liquor, Indian Made Foreign Liquor or Country Liquor in sealed bottles. 2 The licensee has to follow all the provisions made under Goa, Daman and Diu Excise Duty Act and Rules, 1964. a. Wholesaler 1. A whole can sell any quantity of liquor to a 'wholesaler and retailer by obtaining necessary transport permit from the Excise Department, Daman. 2. As above. 3. As wholesaler can sell such quantity of liquor to other licensee who are holding licenses for sale of liquor in Daman. b. Retailer 1. A licensee for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Diu Office of the Commissioner of Excise, Excise Department, Daman. No.1/17/EXCEstt/820 Dated: 23/12/2010. 20102011/ NOTIFICATION In exercise of the powers conferred by Section 22 of the Goa, Daman and Diu Excise Duty Act, 1964, the Administrator of Daman Diu is hereby partially amends the Notification in Chapter I of Goa, Daman and Diu (Excise Duty) Rules, 1964 in para 2. Definition In these Rules, unless the context otherwise requires: (h) retail vendor means a dealer who is licensed as such to sell liquor in quantity not exceeding 4,500 liters or 06 quart bottles in one transaction; The Notification shall come into force with immediate effect. By order and in the name of the Administrator of Daman Diu. Sd/- (P.J. Bamania) Joint Secretary (Excise), Daman Diu. 22 Mr. Amin, thereafter, brought to my notice one another Notification dated 29th January 2016 with regard to the rules called the Goa, Daman and Diu, Excise Duty (Amendment) Rules, 2016. The same reads as under: U.T. Administration of Daman Diu Administrator's Secretariat Excise Department, Daman. No.3/1518/EX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch application must be accompanied by; (a) a permit or licence from the appropriate Wise authority of the State or Union Territory to which the liquor is to be exported authorising the import of the liquor, and (b) either a duly executed special bond or a reference to the general bond in force, or document proving the payment of duty, or (c) a receipt of challan for having paid in the Government Treasury the duty in respect of liquor to be exported. 13. Procedure for export permit. - (1) If the application is found to be in order , the Commissioner . shall issue permit in Form E4, in quadruplicate, specifying the name, quantity and strength of each kind of liquor. One copy of the permit shall be deliveredto theexporter: second copy will be forwarded to the appropriate Excise Officer of the State or Union Territory to which the liquor is to be taken, the third will be sent to the Excise Inspector of the Taluka and the fourth will be retained for record. (2) Within a reasonable time to be fixed by the Commissioner and specified in the bond or permit, as the case may be, the exporter shall produce before the Assistant Excise Commissioner of the Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly quota as may be fixed by the Commissioner with the previous approval of the Government after ascertaining the local requirement from the Collector, Daman or the Civil Administrator, Diu, as the case may be. (2) Notwithstanding that a transport permit has been granted to to any licensed retail vendor for the year 1974-75 before the coming into force of this rule, the transport permit of such vendor shall be limited to the quota, fixed under subrule (1). Provided that the quota for which transport permit has per. Been granted is less than the quota as fixed under. Subrule (1), the retail vendor shall be entitled to the transport permit for the balance quantity. Provided further the wholesale vendor having a retail licence shall not be entitled to a separate quota as a retailer. (3) Notwithstanding anything contained in subrule (I), but subject to rule 19, a retail vendor of Indian Made Foreign Liquor or Foreign Liquor whose licensed premises are situated in Daman or Diu, may transport beer. 19B. Transport of liquor for personal consumption. Any person going out of Goa, Daman and Diu may on application made by him be granted a permit by the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bombay Prohibition Act is not applicable in the Union Territory of Daman. 28 According to Mr. Amin, all the F.I.Rs. are at the initial stage of investigation. Some of the applicants are still absconding. Against some of the applicants, many cases have been registered. The investigation carried out so far has revealed that the contraband recovered and seized was supplied by the applicants herein after a wellhatched conspiracy and modus operandi . At such a crucial stage of the investigation, the F.I.Rs. should not be quashed. Mr. Amin submitted that no person can come at the shop and purchase liquor worth lacs. In fact, such sale is permissible according to the terms of licence. In such circumstances, all the applicants, although may be residing in Daman and carrying on business in Daman, yet are part and parcel of the offence registered at the different police stations within the State of Gujarat. With the indiscriminate supply of liquor worth lakhs of rupees, the evasion of excise duty has also come to the notice of the authority to the tune of lakhs of rupees. Mr. Amin submitted that if a Truck fully loaded with bottles of liquor is seized within the State of Gujarat and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat is a dry State on account of the applicability of the Bombay Prohibition Act, yet the prohibition policy of the State has not worked well and one of the reasons is the easy entry point in the State of Gujarat for the liquor to be brought in. Daman is one big hub where liquor is available in abundance and large quantity of liquor is being illegally brought into the State of Gujarat from Daman. 34 Let me look into the contention as regards Section 40 of the I.P.C. Section 40 of the I.P.C. reads as under: 40. Offence Except in the b [Chapters] and sections mentioned in clauses 2 and 3 of this section, the word offence denotes a thing made punishable by this Code. In Chapter IV, c [Chapter VA] and in the following sections, namely, sections d [64, 65, 66, e [67], 71], 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224,225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word offence denotes a thing punishable under this Code, or under any special or local law as hereinafter defined. And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word offence has the same meaning when the thing pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a police station may, without the order of a Magistrate, investigate, any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered u/S. 190 may order such an investigation as above mentioned. 157. Procedure for investigation : (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered u/S.156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed to the spot, to investigate the facts and circumstances of the case, and if necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offences under the other enactments also, apart from those under the I.P.C. 38 I find it extremely difficult at this point of time, more particularly, when all the F.I.Rs. are at the stage of investigation to take the view that the applicants are not liable to be prosecuted for the offences punishable under the provisions of the Bombay Prohibition Act with regard to the different F.I.Rs. registered in the State of Gujarat. The clandestine manner in which the consignments are supplied and brought within the State of Gujarat, speaks volumes as regards the complicity of the applicants in one way or the other in the alleged offence. Only the proper investigation would reveal the exact involvement of the applicants in the alleged offence. 39 Considerable emphasis has been laid upon the fact that the acts and omissions, which amount to a criminal offence under the Bombay Prohibition Act, have not been incorporated into the body of the Indian Penal Code as separate or distinct offence. I agree that it is so, but I am clearly of the opinion that this makes no difference. It would have made the Indian Penal Code extremely cumbrous, if the offences under the various special and loca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out. If the thing in question is an offence, then the abetment of it becomes an offence (section 108) and the offence of abetment is constituted (Section 108, explanation 2), which is thus a separate and distinct offence. Offence by section 40 (paragraph 1) and section 108A means: (1) a thing made punishable by the Indian Penal Code; and (2) a thing made punishable by the Indian Penal Code though it is committed without and beyond British India. Consequently, the abetment of an offence means the abetment in British India of a thing made punishable by the Indian Penal Code. Section 40, Indian Penal Code, has, however, been extended by amendment. The limitation in paragraph 1, confining an offence to a thing punishable by the Indian Penal Code, has been relaxed and offence in Section 109 (inter alia) now denotes a thing punishable under the Code, or any special or local law. There is no doubt that Madras Act V of 1920 is a local law and it, therefore, seems clear that section 109 can be applied to a thing punishable under it. As pointed out, abetment is a separate and distinct offence, provided the thing abetted is an offence; and the thing abetted here is made an offence by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code . 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused . 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code . 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused . 6. Where there is an express legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Gujarat has not been able to yield positive results. One may not find an open bar on a public street, but the number of cases, as on date, pending in the different Courts in the State of Gujarat, bears eloquent testimony to the fact that either the policy is not effective or something is wrong with the implementation of the law. Out of 3,99,221 criminal cases pending as on 28th February 2017 in the State of Gujarat, 55,645 cases are under the Bombay Prohibition Act. It is high time that the Central Government should consider denotifying Daman as a part of the Union Territory and make it a part of the State of Gujarat so as to make the Prohibition Act applicable, which may have its own effect, and more particularly, after the recent amendment in the Act, providing more stringent provisions. It is for the Central Government to consider this issue at the earliest before it is too late in the day. 48 With the above, all the applications fail and are hereby rejected. Notice, if any, stands discharged. The adinterim order, if any, stands vacated forthwith. 49 It is needless to clarify that ultimately, at the end of the investigation, if chargesheet is filed against any of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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