The Allahabad High Court while dismissing an application held that there is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence.
Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence.
A Single Bench of Justice Samit Gopal heard an application under section 482 filed by Kunal Chawala.
The Criminal Misc Application U/S 482 Cr.P.C has been filed by the applicant Kunal Chawala with the following prayers:
“It is, therefore Most respectfully prayed that the Court may graciously be pleased to allow this application and quash the Charge Sheet dated 26.02.2022 and cognizance/summoning order dated 28.02.2022 as well as entire proceeding in Case under Sections 420, 120-B IPC and Section 60, 63, 72 of UP Excise Act, arising out of Case Crime No 666 of 2021, Police Station- Madhuban Bapudham, District Ghaziabad, pending before the Court of the Chief Judicial Magistrate, Ghaziabad.
It is further prayed that the Court may graciously be pleased to stay the further proceeding of Case under Sections 420, 120-B IPC and Section 60, 63, 72 of UP Excise Act, arising out of Case Crime No 666 of 2021, Police Station- Madhuban Bapudham, District Ghaziabad, pending before the Court of the Chief Judicial Magistrate, Ghaziabad, during the pendency of the present case, otherwise the applicant shall suffer irreparable loss and injury, and/or may pass such other and further order which the Court may deem fit and proper under the facts and circumstances of the case.”
The prosecution case as per the First Information Report lodged on 30.12.2021 by Smt Sheelabh Mishra the Excise Inspector, Sector-3, Ghaziabad, the opposite party no.2 under Sections 420, 120-B IPC and Section 60, 63, 72 of UP Excise Act, 1910, Police Station- Madhuban Bapudham, District Ghaziabad against the applicant Kunal Chawala, Raman Jaiswal, Ramveer Singh, Sunil Kumar, Lalji Yadav and Vipin Yadav on the basis of a recovery memo of recovery of 4809 cartons and 266 loose bottles of Indian Made Foreign Liquor, arrest of four accused persons and recovery of four vehicles being Truck, Ford Ecosport and Hyundai i-20 alleging therein that FIR was lodged in District Moradabad in which Nagendra Yadav resident of Meerut was apprehended transporting 40 bottles of Indian Made Foreign Liquor.
He disclosed that the liquor was brought from the custom godown of Kunal Chawla from Ghaziabad and he supplies it illegally in various Districts in Uttar Pradesh.
On the said information, the District Excise Officer, Ghaziabad under supervision of the first informant along with Excise Inspectors and Enforcement Officers of Excise Department of Meerut formed a team.
On the basis of information received from Moradabad on 29.12.2021, the said Officers reached the godown of Kunal Chawla in P.S Madhuban. The main gate of the godown was open and two trucks were standing inside from which cartons of liquor were being kept inside. Two people met inside. On asking, they disclosed their names as Raman Jaiswal and Ramveer Singh. On further questioning, they disclosed that they were in the said godown for Kunal Chawla and their work is to get the cartons of liquor unloaded and supplied to various places. On asking about Vipin Yadav they refused to tell anything but on checking their mobiles, the number of Vipin Yadav was found in it and there were regular calls on the mobile. On being suspicious, the godown was searched thoroughly. The papers with regards to the material which was being unloaded from the trucks was demanded which could not be shown. The drivers of the truck disclosed their names as Sunil Kumar and Lalji. They also could not show the papers of the material on demand. On asking for a license with regards to the liquor kept in the godown, the persons could not show any license and neither could produce any documents with regards to the stock and the details of it.
From Truck Ballentine brand liquor was being unloaded and on another truck 500 cartons of Red Label brand liquor was present which was being unloaded. The godown was then inspected where liquor of various brands were found. A list was then drawn by the said team of 75 Indian Made Foreign Liquor which in total was in 4809 cartons and there were 266 loose bottles. The cartons were inspected and in some cartons there was no tag of FSSAI and the mother company which would go to show that the material did not come through the legal channel. The Government of India and the State Government were incurring loss of customs and excise duty.
It is stated that as such Kunal Chawla and other persons are running a gang due to which the Government is being defrauded of its customs duty and the State Government is also being defrauded of excise duty. Samples of the material recovered were drawn and a recovery memo was prepared which was given for lodging of the First Information Report and the First Information Report was thus lodged.
The investigation in the matter concluded and a charge sheet was submitted against Raman Jaiswal, Ramveer Singh, Sunil Kumar, Lalji Yadav and Kunal Chawla (the present applicant) under Sections 420, 120- B IPC and Section 60, 63, 63 of the Uttar Pradesh Excise Act, 1910.
The trial court vide its order dated 28.02.2022 took cognizance upon the said charge sheet and summoned the applicant Kunal Chawla and other accused persons to face trial.
The trial court vide its order dated 30.03.2023 framed charges against the applicant under Sections 420, 120-B IPC and Section 60, 63 of the Uttar Pradesh Excise Act, 1910. The said charge was read to the applicant-accused who pleaded not guilty and claimed to be tried.
The Court noted that,
After having heard counsels for the parties and perusing the records, it is evident that the applicant is named in the First Information Report. There are allegations against him that illegal liquor was being unloaded from the truck and being stocked in his godown. The material as found in the godown was deficient for certain necessary formalities due to which a conclusion was drawn that the same has not come through legal channels. Even there was no explanation and presentation of relevant documents by the concerned persons with regards to the same.
In the petition also the ownership of godown and the recovery of the material is not challenged. After recovery of the material and arrest of some of the accused, the First Information Report was lodged after which the investigation concluded and a charge sheet was submitted on which the trial court took cognizance and summoned the applicant and other accused persons. On the appearance of the applicant, the trial court framed charges against him. The said charges were read to the applicant to which he pleaded not guilty and claimed to be tried. There was no challenge of the order taking cognizance on the charge sheet, summoning of the applicant by the trial court and also to the framing of charge against him but the only things stated by him after framing of charge was that he denies the charges and claims to be tried.
“Regarding the second limb of argument that there is no evidence with regards to the offences under the IPC, it is apparent from the records that the trial court after prima facie finding a case to be made out against the applicant took cognizance upon the charge sheet, summoned him and then charges were also framed against him under sections 420, 120-B IPC and Section 60, 63, 72 of U.P Excise Act.
There are allegations against him that illegal liquor was being unloaded from the truck and being stocked in his godown. The trial has started in which one prosecution witness has been examined and the second witness is under examination.
The applicant who is a named accused, charged accused is being tried but he has not tried to claim discharge before the trial court at the appropriate stage. Even the order framing charge has not been challenged by him yet.
With regards to the argument that the company has not been made as an accused and the proceedings be quashed on the ground itself it is the prosecution case that the godown belonged to the applicant from which the illegal liquor was recovered. It is the case of the applicant that the godown is of the company, the same is to be taken up in the trial at the appropriate stage to show as to who is the owner of the godown and whose material is being stocked therein. The proceedings on the said ground itself cannot be quashed.
In view of the discussion as above, the law on the issue, the prima facie material available against the applicant and also the stage of the case, the Court does not find it to be a fit case for interference”, the Court observed while dismissing the application.