A.P. Vs. Gourishetty Mahesh & Ors.  INSC 504 (15 July 2010)
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)
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 1 criminal proceedings in Crime No. 288/2002-03 of Prohibition
& Excise Station, Huzurabad, Karimnagar initiated against them.
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 2 Jaggery fit for fermentation producing
alcohol unfit for consumption.
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
3 cause notice. The Deputy Commissioner, Karimnagar, by order dated 24.01.2003
confiscated the contraband.
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 4
against the respondents/accused in Crime No. 288/2002-
Aggrieved by the said order, the State of Andhra Pradesh has filed this appeal
by special leave.
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.
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.
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:
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 6
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.
of Asst. (K. Mahender Reddy) Examiner Govt. Chemical Examiner Dt. 21.09.2002 of
Proh. & Excise Regl.
& Excise Laboratory To The Proh. & Excise Inspector, Huzurabad,
submitted to the Proh. And Excise Superintendent, Dist. Hyderabad."
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 7 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
8 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:
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
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
9 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:
where it manifestly appears that there is a legal bar against the institution
or continuance e.g. want of sanction;
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
where the allegations constitute an offence, but there is no legal evidence
adduced or the evidence adduced clearly or manifestly fails to prove the
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.
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.
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, otherwise, 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 11 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 12 Magistrate, it is open to the High Court to
quash the same in exercise of inherent powers under Section 482.
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 13 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.
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.
these observations, the State appeal is allowed.
..........................................J. (P. SATHASIVAM)
..........................................J. (ANIL R. DAVE)
JULY 15, 2010.