CRLP/4978/2009 of Mala Ramanadham, Vs The State of A.P., on 30 December 2011

ORDER:

The petitioner is the accused in C.C.No.32 of 2002 on the file ofthe Court of Judicial First Class Magistrate, Mahabubabad (trial court). He filed this petition under Section 482 of Cr.P.C for quashing the saidcase. The offence alleged against him is one punishable under Section34(e) of the Andhra Pradesh Excise Act, 1968 (for short Act).

2. The prosecution version is that the petitioner is a businessman ofMahabubabad and that on 2.4.1995 in the evening at about 6.00 p.m. oncredible information the Inspector of Police, Mahabubabad raided theshop of the petitioner and found him to be in possession of 50 quintals ofblack jaggery which is fit for manufacture of illicitly distilled arrack. It isalso alleged in the charge sheet that at the time of seizure the petitioneris said to have made a disclosure before the Inspector of Police that hedid not posses any way bills or other documents to show that he boughtthe black jaggery in a legal manner and that he bought the said jaggeryfrom Chittoor for selling the same in the surrounding Tandas formanufacture of illicitly distilled arrack and to make huge profits. It isthen stated that the above jaggery was accordingly seized andinvestigation was taken up and it disclosed that the accused is guilty ofthe offence under Section 34(e) of the Act which deals with possessionof materials for manufacture of illicit distilled liquor as black jaggery is amaterial for manufacture of illicit distilled liquor.

3. It should be noted that the case is of 2002 and this quash petitionwas filed in 2009. The main contention of Sri Prabhakar Rao, the learnedcounsel for petitioner is that mere possession or transportation of blackjaggery is by itself is not an offence under the Act and since theinvestigating officer failed to place any additional material before the trialcourt to show that the petitioner is manufacturing illicitly distilled liquor with black jaggery or is acting an abettor for its manufacture the caseshould be quashed holding that it to be a baseless one. The Full Benchdecision of this Court given in Ganesh Traders v. District Collector,Karimnagar[[1]], and two decisions of the Supreme Court given in onegiven in State of A.P. v. Golconda Linga Swamy[[2]]and the other given inCrl.A.No.1252 of 2010 dated 15.7.2010 (State of A.P. v. GourishettyMahesh) are relevant here.

4. In Ganesh Traders’ case the majority opinion was that blackjaggery cannot be permitted to be released under Article 226 when thematter is at the stage of F.I.R. and ultimately the petitioners therein weredirected to approach the criminal court concerned. It was also held inthe majority opinion that information in the form of analysis reports andother information have to be obtained by the investigating agency andconsequently that was a ground for refusing the relief at the stage ofF.I.R. Certain guidelines were given in the said case. Then in GolcondaLinga Swamy’s case decided on 27.7.2004 the Hon’ble Supreme Courtheld that in cases relating to transporting or storing of black jaggery theHigh Court under Section 482 Cr.P.C. should not interfere on flimsygrounds when the matters are at the stage of F.I.R. and investigationshould be allowed to go on.

5. In the case of Gourishetty Mahesh which was also a case relatingto possession of black jaggery, their Lordships dealing with the power ofthe High Court under Section 482 Cr.P.C., reiterated the settledprinciples that an F.I.R. or a case can be quashed even if the allegationsmade therein are believed to be true they do not disclose any offence.

With reference to the possession of black jaggery it was held as follows:

“In the case on had, apart from specific allegations about thetransportation of jaggery for preparation of illicit distilled liquor,prosecution also placed reliance on laboratory analysis reportwhich mentions that the transported jaggery is fit forfermentation, producing alcohol unfit for consumption. In thosecircumstances, whether the raw material in existence would be sufficient for holding the accused persons concerned guilty ornot ha to be considered only at the time of trial. Further, at thetime of framing the charge, it can be decided whether primafacie case has been made out showing the commission ofoffence and involvement of the charged person. It is immaterialwhether the case is based on direct or circumstantial evidence. That being so, the interference at the threshold quashing theFIR is to be exceptional and not like routine as ordered by theHigh Court in the present case. It is not a case where it can besaid that the complaint did not disclose commission of anoffence.”

6. The above observations are clear and they show that where thereare specific allegations that possession of black jaggery is meant forpreparation of illicitly distilled liquor, the Court should not interfere. SriPrabhakar Rao’s contention is that in the present case charge sheet hasbeen filed and yet there is no laboratory analysis report regarding theblack jaggery in question showing that it is fit for preparation of illicitlydistilled liquor and therefore the case should be quashed. It is true that inthe above passage it has been mentioned that in addition to the specificallegations the prosecution also in that case relied upon the laboratoryanalysis report which mentioned that the jaggery therein was found to befit for preparation of illicitly distilled liquor and therefore it was held thatthe controversy was to be considered at the time of trial.

7. It is true that the charge sheet does not show that the concernedinvestigating officer got the sample jaggery subjected to any chemicalanalysis. In the above passage of the Supreme Court decision thepresence of analysis report was only made an added ground for notinterfering but it was not the sole ground and the Hon’ble SupremeCourt’s observations would show that even allegations showing that thejaggery was possessed for preparation of illicit distilled liquor weresufficient. What should be noted is that this is a case where the policeinvestigated the matter and laid the charge sheet and specificallypleaded that the petitioner failed to produce any document to show thathe got the 50 quintals of black jaggery in accordance with the procedure prescribed for its transport from Chittoor. It is also pleaded that theinvestigation disclosed that the petitioner possessed it for selling it toTandas nearby Mahabubabad where illicit distilled liquor is manufacturedand the Inspector says that the jaggery is fit for preparation of illicitdistilled liquor. Thus there are allegations in the charge sheet and theonly deficiency is absence of chemical analysis report.

8. So far as absence of chemical analysis report is concerned, it isfor the trial court to decide what is its effect on the merits of the caseand it may also be noted it is open for the trial court to entertain evidenceregarding the chemical analysis even in the course of trial by summoningany witness it likes or any report it may call for and it is a matter withinthe power of the trial court. Thus the mere absence of chemical analysisreport is not a ground for quashing the case. The police have registeredthe case in the year 1995 and they filed the charge sheet in the year2002 and the petitioner has approached this Court in the year 2009. It isnot known what the petitioner was doing previously from 1995 onwards. All the above circumstances, in my opinion, would show that this is not acase for interference under Section 482 Cr.P.C. and it would be in thefitness of things to leave the matter to be decided by the trial court whichcan go through all the aspects thoroughly in an enquiry or trial.

9. Accordingly, for the aforesaid reasons, this criminal petition isdismissed. It goes without saying that the petitioner can also apply fordischarge before the trial court and any such application may be decidedby it in accordance with law. The trial court shall proceed to dispose ofthe matter expeditiously without being influenced in any manner by anyobservations made in this order.

______________________

N. RAVI SHANKAR, J

TJMR

THE HON’BLE SRI JUSTICE N. RAVI SHANKAR

CRIMINAL PETITION No.4978 OF 2009

30[th] December 2011

[1]2002-ALD-1-2102002-ALD-1-210

[2](2004)6 Supreme Court Cases 522(2004)6 Supreme Court Cases 522