Allowed

Deewan Singh Deora v. State

Rajasthan HC16 Nov 2022CRLMP/236/2020

Case brief

AI extract

What is this about?

The High Court of Rajasthan quashed an FIR under the Rajasthan Excise Act lodged against the petitioner. The court held that the petitioner was not present during the recovery of liquor from his ancestral house, and no evidence linked him to it, making the FIR liable to be set aside.

What did the court decide?

FIR No. 485/2019 and all consequential proceedings are quashed and set aside with respect to the petitioner. The SHO is directed to submit a final report to the Magistrate within 60 days.

Deewan Singh Deora Vs State — Constitutional and Fundamental Rights | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN

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JODHPUR.

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S.B. Criminal Misc. (Pet.) No. 236/2020.

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Deewan Singh Deora S/o Kishore Sinbgh Deora, aged about 51 years, R/o 203, Star Excellency, Aditya Vihar, Gandhi Path, Vaishali Nagar, Jaipur. Presently residing at Udaipur (FIR lodged at P.S. Pindwara, District Sirohi).

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----Petitioner

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Versus

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The State Of Rajasthan

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----Respondent

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For Petitioner(s)	: Mr. Manish Shishodia, Sr. Advocate
	with Mr. JaideepSaluja..
For Respondent(s)	: Mr. S.S. Rajpurohit,PP.

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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16/11/2022

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By way of filing of the instant criminal misc. petition, challenge has been made to the very lodging of the FIR No. 485/2019 registered at Police Station Pindwara, District Sirohi for offence under Sections 19 and 54 of the Rajasthan Excise Act as well as the investigation and all consequent proceedings initiated pursuant thereof.

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Bereft of the elaborate details, succinctly stated the facts of the case are that on 01.11.2019, the team of Police Station, Pindwara, District Sirohi went to the petitioner’s native village Chawarli to conduct a raid at the house of the petitioner’s father Shri Kishore Singh. It is alleged that during the course of conducting the search in relation to a case of Anti Corruption

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[CRLMP-236/2020]

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(2 of 7)

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against the petitioner, one Shri Narayan Singh, RPS, Additional Superintendent of Police, ACB informed the Station House Officer (SHO) regarding presence of bottles of certain quantity of English wine and beer. It is specifically mentioned in the FIR that the petitioner was not present in the house. It is claimed that below mentioned excisable articles were found and seized from the

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house.

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--------------------- Quantity ---------------------	----------------------------------------------------- Name of Brand -----------------------------------------------------
3 Bottles	VAT 69
1 Bottle	GOLKONDA BRANDY
3 Bottles	BLENDERS
1 Bottle	OLD MONK
1 Bottle	CHIVAS REGAL 18 Y O
6 Bottles	CHIVAS REGAL-12
1 Bottle	THE GLENLIVET-15
8 Bottles	BLACK LABEL
1 Bottle	OLD SMUGGLER
1 Bottle	THE GLENLIVET-12
1 Bottle	MCDOWELLS SINGLE MALT
1 Bottle	SULABRUT
13 Bottles	100 PIPER
2 Bottles	BLACK DOG
4 Bottles	TEACHERS HIGHLAND CREAM
9 Bottles	TEACHERS-50
3 Bottles	SIGNATURE
1 Bottle	RED LABEL
1 Bottle	SOMETHING
3 Bottles	ROYAL CHALLENGER
1 Bottle	ANTIQUITY
2 Bottles	AC SEKC
3 Bottles	TEACHERS ORIGIN
1 Bottle	MCDOWELL RUM
8 Bottle	PETERSCOTCH
12 Bottles of Beer	TURBO
3 Bottles of Beer	HAYWARDS-2000
1 Bottle of Beer	HAYWARDS-5000
50 Bottles of Beer	KINGFISHER
1 Bottle of Beer ---------------------	FOSTERS -----------------------------------------------------

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The seizure of the aforementioned material was made in the presence of father of the petitioner. A case under Section 19/54

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[CRLMP-236/2020]

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(3 of 7)

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of the Rajasthan Excise Act was lodged. It is further stated that after investigation, offence has been found proved against the accused-petitioner Deewan Singh for the accusation of having in possession total 79 bottles of Wine and total 67 bottles of Beer in his house without any permit and only his arrest has remained to be effected. A duly signed copy of the factual report is also available on record.

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Shri Manish Shishodia, learned Senior Advocate assisted by Shri Jaideep Saluja submits that it is an admitted case of the prosecution that the petitioner Deewan Singh Deora was not present on the spot at the time of alleged recovery made at his ancestral house in village Chawarli and thus, the recovery of the alleged Indian Made Foreign Liquor (IMFL) was not effected from the exclusive and conscious possession of the accused. The petitioner is a Superintending Mining Engineer, Vigilance (Technical Assistant to the Director, Mines & Geology) (TA to DMG) and deployed at the Office of DMG, Udaipur. He was wrongly framed in a case of corruption vide FIR No. 319/2019 which came to be lodged at the behest of complaint made on 31.10.2019 by one Shri Gaurav Modi and he had been taken into custody on 01.11.2019, however, the sanction to prosecute him has not been accorded. The petitioner had sent several representations to the Police Officers seeking fair investigation in the matter by averring that he has to do nothing with the alleged recovery made from his ancestral house in village Chawarli where his father used to reside, but no heed was paid to address his grievance. Submitting further, it is apprised to this Court that Shri Kishore Singh Deora, father of the petitioner is the patta-holder of the said house from which

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[CRLMP-236/2020]

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(4 of 7)

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recovery alleged to have been made. In one of the portions of the said house, his real brother and his family resides. The documents being Patta No. 101 and 102, Electricity Bills, Ration Card and other documents have been annexed therewith. It is not disputed that the petitioner is an employee with the State of Rajasthan and he along with his family resides in a residential flat owned by him in Jaipur and he was deployed at the relevant point of time at Udaipur. To buttress the submission regarding his ordinary residence at Jaipur, copies of Adhar Card, Ration Card etc. have been placed on record. The petitioner belongs to Rajput community, his father and other family members also used to take liquor, therefore, no culpability or liability can be fastened upon the petitioner Deewan Singh for recovery of alleged wine/beer from the house belongs to his father and other family members. It is strenuously urged that the petitioner’s house at Jaipur and Udaipur were also searched but no liquor was found therein. It is further submitted that lodging of the impugned FIR is otherwise also illegal as the recovery of the alleged liquor (wine/beer) was made by the police team when making search in connection with investigation of FIR No. 311/2019 under penal provisions of Prevention of Corruption Act and thus, the provisions of Excise Act can be added in that FIR but for that, lodging subsequent FIR is against the principles of law. He thus prayed for quashing of the FIR under challenge.

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On the contrary, learned Public Prosecutor has vehemently opposed the submissions made on behalf of the petitioner while asserting that the recovery of bottles of the English Wine and Beer was made by the police team in presence of the father of the

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(5 of 7) [CRLMP-236/2020]

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petitioner and the presence of liquor was informed by the Additional Superintendent of Police, ACB, Shri Narayan Singh, therefore, the recovery of huge liquor cannot be doubted. He further submits that after investigation, offence has been found proved. However, he does not dispute the fact that the petitioner permanently resides at Jaipur and his temporary abode was at Udaipur where he was deployed at the relevant point of time. He further agrees that no excisable articles were recovered in the presence of the petitioner or from his houses at Jaipur and Udaipur.

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Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the FIR impugned, factual report and the other material available on record.

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It is the admitted case of the prosecution that the petitioner was not present when the alleged recovery was effected from his ancestral house at village Chawarli where his father resides. Thus, it can be said that the recovery was not made from exclusive and conscious possession of the present petitioner. It is also on record that the raids were conducted at the houses of the petitioner situated in Jaipur and Udaipur but during the search, no excisable articles were recovered from that places. No evidence whatsoever has been collected to show or establish that the recovered liquor (bottles of Wine and Beer) were sent by the accused-petitioner or kept by him at his ancestral house. There is not an iota of evidence to show that who bought and brought the bottles in the house at Village Chawarli which were allegedly recovered in this case.

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[CRLMP-236/2020]

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(6 of 7)

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In civil law, a co-parcener, co-sharer, heir or successor may have share in the undivided immovable property of a Joint Hindu Family and for some purposes, his deemed possession on every inch of undivided property can be assumed but no such presumption is available while fastening a criminal liability upon that co-parcener/co-sharer. Similarly, vicarious liability cannot be fastened upon an accused simply because he is a co-sharer of the undivided joint Hindu family property.

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Hon’ble the Supreme Court in the case of S.K. Alagh Vs.

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State of Uttar Pradesh , reported in 2008 (5) SCC 662 propounded that an accused cannot be held vicariously liable for the act not committed by him except where special statutory provisions are made in this regard. Even the initial burden to show the guilt of the accused lies upon the prosecution as lodging of a case against him for non-bailable offence surely hampers his right to liberty. It is imperative upon the prosecution to show, direct or indirect, nexus of the recovery of the illicit liquor with the accused or evidence has to be brought on record to show his exclusive and conscious possession of the place wherefrom the recovery of illicit liquor was made.

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The submission made by the learned counsel for the petitioner seems to be luring that the recovery of illicit liquor was made by the team of ACB in connection with conducting investigation in FIR No. 311/2019 and, therefore, lodging a separate case would not be justifiable.

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Viewing from any angle, there seems no justification to allow investigation and further proceedings in connection with the impugned FIR. The present case falls within the parameters laid

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(7 of 7) [CRLMP-236/2020]

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down by Hon’ble the Supreme Court in the case of State of Haryana Vs. Bhajan Lal , reported in 1992 Supp.(1) SCC 335 and in light of the above, the FIR is liable to be quashed and set aside. The petition succeeds.

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Accordingly, the instant Criminal Misc. Petition is allowed and the FIR No. 485/2019 registered at Police Station Pindwara, District Sirohi for offence under Section 19/54 of the Rajasthan Excise Act and all consequential proceedings pursuant thereof are hereby quashed and set aside qua the petitioner only. The Station House Officer (SHO) concerned shall prepare a final report in this regard and shall submit the same before the Magistrate concerned within a period of 60 days from the date of receipt of this order. The stay application also stands disposed of.

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(FARJAND ALI),J

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Cupp.-1-Mohan/-

Deewan Singh Deora v. State

Case brief

What is this about?

What did the court decide?

Deewan Singh Deora v. State

Case brief

What is this about?

What did the court decide?

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