REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1252 OF 2010
(Arising out of S.L.P. (Crl.) No. 3061 of 2008)
State of A.P. .... Appellant (s)
Versus
Gourishetty Mahesh & Ors. .... Respondent(s)
JUDGMENT
P. Sathasivam, J.
1) Leave granted.
2) This appeal is preferred by the State of Andhra Pradesh
against the judgment and order dated 27.01.2006 passed
by the High Court of Judicature, Andhra Pradesh at
Hyderabad in Criminal Petition No. 4362 of 2002 whereby
the High Court allowed the petition filed u/s 482 of the
Criminal Procedure Code (hereinafter referred to as `the
Code') filed by the respondents herein and quashed the
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criminal proceedings in Crime No. 288/2002-03 of
Prohibition & Excise Station, Huzurabad, Karimnagar
initiated against them.
3) Brief facts:
a) On 12.09.2002, at about 4 p.m., on information
about transportation of black Jaggery and Alum illegally,
SDP&E along with other officials kept a watch at
Molangur Cross Road. While conducting the route watch,
an Eicher Van bearing Regn. No. AP 15 U 3123 was
checked and the Investigating Officer found 5,040 kgs. of
black Jaggery in 106 Gunny Bags. The Investigating
Officer seized the vehicle and the black Jaggery under the
cover of Panchnama, arrested the accused and registered
a case in Crime No. 288/2002-03 under Sections 34(e), 41
and 42 of the Andhra Pradesh Excise Act, 1968. A show
cause notice was issued to the owner of the vehicle and
the accused persons. On 21.09.2002, the Government
chemical examiner gave his remarks stating that the
sample contains sugar and extraneous matter and it is
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Jaggery fit for fermentation producing alcohol unfit for
consumption.
b) On 16.09.2002, the respondents/accused persons
preferred a petition before the High Court being Criminal
Petition No. 4362 of 2002 along with Crl.M.P. No. 5639 of
2002 under Section 482 of the Code to quash the
proceedings in Crime No. 288/2002-03. On 17.09.2002,
the High Court passed an order in Crl.M.P. No. 5639 of
2002 in Crl. Pet. No. 4362 of 2002 giving the interim
custody of the vehicle bearing No. AP15U-3123 to
Petitioner No.4 therein subject to certain conditions. The
Investigating Officer deposited the seized property in the
office of the Deputy Commissioner of Prohibition and
Excise, Karimnagar, along with proposals for initiating
action for confiscation of the black Jaggery. The Deputy
Commissioner, Karimnagar, issued a show cause notice to
the owner of the contraband for confiscation of the seized
property calling for objections, if any. The owner of the
vehicle submitted the explanation in response to the show
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cause notice. The Deputy Commissioner, Karimnagar, by
order dated 24.01.2003 confiscated the contraband.
Against the order of confiscation, an appeal being Crl. A.
No. 4843/2003/CPE/D4 was filed before the
Commissioner of Prohibition & Excise, A.P. The
Commissioner upheld the confiscation order passed by the
Deputy Commissioner, Karimnagar. Aggrieved by the said
order, the owner of the Jaggery filed W.P. No. 11647 of
2004 along with W.P.M.P. No. 14808 of 2004 before the
High Court for the release of the seized goods. By an
interim order dated 09.07.2007 in W.P.M.P. No. 14808 of
2004, the seized black Jaggery was released on furnishing
Bank Guarantee by the petitioner therein to the value of
the seized goods to the satisfaction of the Dy.
Commissioner Prohibition & Excise, Karimnagar (second
respondent therein) but the same could not be done as the
jaggery was already disposed of. On 27.01.2006, the High
Court passed an order in Crl. Pet. No. 4362 of 2002
allowing the criminal petition quashing the proceedings
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against the respondents/accused in Crime No. 288/2002-
03. Aggrieved by the said order, the State of Andhra
Pradesh has filed this appeal by special leave.
4) There is no appearance on behalf of the respondents
in spite of service of notice. Heard Mrs. C.K. Sucharita,
learned counsel appearing for the State of A.P.
5) Mrs. C.K.Sucharita, learned counsel appearing for
the State, after taking us through the complaint and other
materials, submitted that the High Court misdirected itself
in quashing the proceedings against the respondents in
the light of the seizure of 5,040 kgs of black Jaggery and
the investigating agency having ample evidence to prove
that it was transported for manufacture of illicit liquor.
6) It is not in dispute that on 12.09.2002 at about 4
p.m. on information, the Excise officials of Prohibition and
Excise Station, Huzurabad, Karimnagar District proceeded
to Molangur cross road, stopped a van bearing No. AP-15-
U 3123 and seized 5,040 kgs of black Jaggery in 106
gunny bags from the van under the cover of panchanama.
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Among the other accused A-1 is the clerk of A-4 and A2
and A3 are driver and cleaner of the van and A-4 is doing
business in jaggery and other kirana (grocery) items. It is
the case of the prosecution that after seizure of the
vehicle, the sample of substance had been sent to the
Prohibition and Excise Laboratory for testing. The Govt.
Chemical Examiner gave the Laboratory Analysis Report
(Annexure P-12) which reads as under:-
"PROHIBITION AND EXCISE DEPARTMENT,
ANDHRA PRADESH
C.E.No.10/02 LABORATORY ANALYSIS REPORT
The sample (s) of substance received with correct
and intact from Proh. & Excise Inspector, Station
Hazurabad with his letter Dis.No. /02/P&E/HZD dt.
21.09.2002 has been tested in the Laboratory with the
following results:
S.No. Description of the Percentage of Remarks
sample proof Spirit of
Hydrometer
Strength of
Alcohol
1 2 3 4
10415 A dark brownish The sample is
coloured substance in containing sugar
a polythene cover kept and extraneous
in a paper cover matter. It is
weighing (200) Grams. Jaggery fit for
Cr.No.288/2002-03 of fermentation
Station Huzurabad. producing alcohol
Test Conducted unfit for
Test for Sugars: consumption
Positive
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2. The unexpended portion of the sample (s) is returned in
securely sealed.
3. He is requested to depute a person with a letter of
authority to take delivery of the enclosures from the
Laboratory on any working day.
Signature of Asst. (K. Mahender Reddy)
Examiner Govt. Chemical Examiner
Dt. 21.09.2002 of Proh. & Excise Regl.
Proh. & Excise Laboratory
To
The Proh. & Excise Inspector,
Huzurabad, Karimnagar Dist.
Copy submitted to the Proh. And Excise
Superintendent, Dist. Hyderabad."
7) The remarks offered in (column 4) of the said report
shows that the seized substance is Jaggery fit for
fermentation producing alcohol unfit for consumption. It
is also relevant that the Deputy Commissioner of
Prohibition and Excise, Karimnagar Division, by
proceedings dated 24.01.2003, after finding that an
offence under A.P. Excise Act, 1968 has been made out,
seized the Jaggery involved in Crime No. PR 288/2002-03
dated 12.09.2002 and confiscated to the Government of
A.P. The said order was confirmed by the Commissioner
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of Prohibition and Excise on 01.03.2004. In the light of
the factual details, learned counsel for the State submitted
that it is not a case of no material at all for taking action
under the A.P. Excise Act and the High Court was not
justified in quashing the proceedings under Section 482 of
the Code when the material on record discloses
commission of offence under the A.P. Excise Act. No
doubt, before the High Court, learned Public Prosecutor
who defended the Government has neither placed nor
highlighted the above mentioned materials.
8) In a series of decisions, this Court has explained the
power and jurisdiction of the High Court under Section
482 of the Code. Exercise of power under Section 482 of
the Code, particularly, in a case of this nature is an
exception and not the rule. The above provision only
saves inherent power which the Court possessed before
the enactment of the Code and does not confer any new
powers on the High Court.
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9) In State of A.P. vs. Golconda Linga Swamy and
Another, (2004) 6 SCC 522, while considering similar
orders passed by the Andhra Pradesh High Court under
the A.P. Excise Act, this Court has held as under:
"....It envisages three circumstances under which the inherent
jurisdiction may be exercised, namely: (i) to give effect to an order
under the Code, (ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice. It is neither possible
nor desirable to lay down any inflexible rule which would govern
the exercise of inherent jurisdiction. No legislative enactment
dealing with procedure can provide for all cases that may possibly
arise. Courts, therefore, have inherent powers apart from express
provisions of law which are necessary for proper discharge of
functions and duties imposed upon them by law. That is the
doctrine which finds expression in the section which merely
recognises and preserves inherent powers of the High Courts. All
courts, whether civil or criminal, possess in the absence of any
express provision, as inherent in their constitution, all such
powers as are necessary to do the right and to undo a wrong in
course of administration of justice on the principle quando lex
aliquid alique concedit, conceditur et id sine quo res ipsa esse non
potest (when the law gives a person anything, it gives him that
without which it cannot exist). While exercising powers under the
section, the Court does not function as a court of appeal or
revision. Inherent jurisdiction under the section though wide has
to be exercised sparingly, carefully and with caution and only
when such exercise is justified by the tests specifically laid down
in the section itself. It is to be exercised ex debito justitiae to do
real and substantial justice for the administration of which alone
courts exist. Authority of the court exists for advancement of
justice and if any attempt is made to abuse that authority so as to
produce injustice, the court has power to prevent such abuse. It
would be an abuse of the process of the court to allow any action
which would result in injustice and prevent promotion of justice.
In exercise of the powers court would be justified to quash any
proceeding if it finds that initiation or continuance of it amounts
to abuse of the process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no offence is
disclosed by the complaint, the court may examine the question of
fact. When a complaint is sought to be quashed, it is permissible
to look into the materials to assess what the complainant has
alleged and whether any offence is made out even if the allegations
are accepted in toto."
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10) In R.P. Kapur v. State of Punjab, AIR 1960 SC 866
= 1960 Cri LJ 1239, this Court summarised some
categories of cases where inherent power can and should
be exercised to quash the proceedings:
"(i) where it manifestly appears that there is a legal bar against the
institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or
complaint taken at its face value and accepted in their entirety do
not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no
legal evidence adduced or the evidence adduced clearly or
manifestly fails to prove the charge."
11) In State of Andhra Pradesh vs. Bajjoori
Kanthaiah and Another, (2009) 1 SCC 114, again when
the Andhra Pradesh High Court quashed similar
complaint under the A.P. Excise Act and A.P. Prohibition
Act in an appeal filed by the State of Andhra Pradesh, this
Court after reiterating the principle laid down in R.P.
Kapur's case (supra) and State of Haryana vs. Bhajan
Lal, 1992 Supp (1) SCC 335 = 1992 SCC (Cri) 426 held
that the interference at the threshold is not warranted and
set aside the order of the High Court quashing the FIR
and permitted the prosecution to proceed with the trial.
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12) While exercising jurisdiction under Section 482 of the
Code, the High Court would not ordinarily embark upon
an enquiry whether the evidence in question is reliable or
not or whether on a reasonable appreciation of it
accusation would not be sustained. That is the function
of the trial Judge/Court. It is true that Court should be
circumspect and judicious in exercising discretion and
should take all relevant facts and circumstances into
consideration before issuing process, other wise, it would
be an instrument in the hands of a private complainant to
unleash vendetta to harass any person needlessly. At the
same time, Section 482 is not an instrument handed over
to an accused to short-circuit a prosecution and brings
about its closure without full-fledged enquiry. Though
High Court may exercise its power relating to cognizable
offences to prevent abuse of process of any Court or
otherwise to secure the ends of justice, the power should
be exercised sparingly. For example, where the allegations
made in the FIR or complaint, even if they are taken at
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their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case
against the accused or allegations in the FIR do not
disclose a cognizable offence or do not disclose
commission of any offence and make out a case against
the accused or where there is express legal bar provided in
any of the provisions of the Code or in any other
enactment under which a criminal proceeding is initiated
or sufficient material to show that the criminal proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused due to private and
personal grudge, the High Court may step in. Though the
powers possessed by the High Court under Section 482
are wide, however, such power requires care/caution in its
exercise. The interference must be on sound principles
and the inherent power should not be exercised to stifle a
legitimate prosecution. We make it clear that if the
allegations set out in the complaint do not constitute the
offence of which cognizance has been taken by the
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Magistrate, it is open to the High Court to quash the same
in exercise of inherent powers under Section 482.
13) In the case on hand, apart from specific allegations
about the transportation of Jaggery for preparation of
illicit distilled liquor, prosecution also placed reliance on
laboratory analysis report which mentions that the
transported Jaggery is fit for fermentation, producing
alcohol unfit for consumption. In those circumstances,
whether the raw material in existence would be sufficient
for holding the accused persons concerned guilty or not
has to be considered only at the time of trial. Further, at
the time of framing the charge, it can be decided whether
prima facie case has been made out showing the
commission of offence and involvement of the charged
persons. It is immaterial whether the case is based on
direct or circumstantial evidence. That being so, the
interference at the threshold quashing the FIR is to be
exceptional and not like routine as ordered by the High Court
in the present case. It is not a case where it can be said that
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the complaint did not disclose commission of an offence. The
acceptability of the materials to fasten culpability on the
accused persons is a matter of trial.
14) In the light of the above principles and the materials
placed by the prosecution, we are satisfied that the High Court
was not justified in quashing the FIR in Crime No. 288/2002-
03 of Excise and Prohibition Station, Hazurabad, Karimnagar
District, accordingly the impugned judgment of the High Court
is set aside. We make it clear that we have not expressed any
opinion on the merits of the case except holding that
interference by the High Court at the threshold is not
warranted. We further make it clear that it is for the
prosecution to establish its charge beyond reasonable doubt.
With these observations, the State appeal is allowed.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(ANIL R. DAVE)
NEW DELHI;
JULY 15, 2010.
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