Bombay High CourtWP/2997/2017others disposed off

Rushikesh Ravindra Aaherwadikar And ANR v. The State Of Maharashtra

2017-09-20Hon'Ble Shri Justice Sandeep Kashinath Shinde,Hon'Ble Shri Justice R.M. Savant.4 pages

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2997 OF 2017 1 Rushikesh Ravindra Aaherwadikar Age: 24 Years, Occ: Service, R/o. Flat No.10, Kudalepatil Paradise, Pushpak Sweet Lane, Manikbaug, Pune.

2 Pavan Ashokrao Warle Age: 24 Years, Occ: Service, R/o. Walhekarwadi, Akurdi, Pune.

......Petitioners V/s.

The State of Maharashtra Through Kothrud Police Station, Pune .......Respondent Mr. Samir Kumbhakoni with Mr. Vaibhav Nirdhar, Advocates for Petitioners.

Mr. V.B.Konde-Deshmukh, APP for Respondent-State. CORAM :

CORAM : R.M.SAVANT & R.M.SAVANT & SANDEEP K. SHINDE, JJ.

SANDEEP K. SHINDE, JJ.

DATE :

DATE : September 20, 2017.

September 20, 2017.

JUDGMENT : (Per Shri Sandeep K. Shinde, J.) JUDGMENT : (Per Shri Sandeep K. Shinde, J.) Rule Rule made returnable forthwith. With the consent made returnable forthwith. With the consent of the learned counsel for the Parties, the matter is taken up of the learned counsel for the Parties, the matter is taken up

* 2/4 * for final hearing forthwith.

for final hearing forthwith.

The Petitioners have challenged the legality, validity The Petitioners have challenged the legality, validity and propriety of the FIR No.49 of 2017 dated 4.2.2017 registered and propriety of the FIR No.49 of 2017 dated 4.2.2017 registered under Section 65(e), 68(a) and (b) and 84 of the Maharashtra under Section 65(e), 68(a) and (b) and 84 of the Maharashtra Prohibition Act and the charge-sheet filed therein. It is nobody's Prohibition Act and the charge-sheet filed therein.

It is nobody's case that the Petitioners were possessing any intoxicant in case that the Petitioners were possessing any intoxicant in contravention of the provisions of this Act or of any rules and contravention of the provisions of this Act or of any rules and regulations or order made or of any licence, permit or authorisation regulations or order made or of any licence, permit or authorisation granted thereunder. Prosecution has alleged that the Petitioners granted thereunder. Prosecution has alleged that the Petitioners were found drinking in a "common drinking house" and thereby were found drinking in a "common drinking house" and thereby rendered themselves liable for penalty within the meaning of rendered themselves liable for penalty within the meaning of Section 84 of the said Act.

That perusal of the FIR, allegations Section 84 of the said Act. That perusal of the FIR, allegations therein and other material accompanying the FIR, does not therein and other material accompanying the FIR, does not disclose cognizable offence in-as-much as penalty under Section 84 disclose cognizable offence in-as-much as penalty under Section 84 of the said Act is a fine to the extent of 5,000/- Rupees. In view of of the said Act is a fine to the extent of 5,000/- Rupees. In view of this fact, the FIR does not disclose cognizable offence justifying this fact, the FIR does not disclose cognizable offence justifying investigation by the Police under Section 156(1) of the Code. More investigation by the Police under Section 156(1) of the Code.

More so, it appears that the allegations made in the FIR even if they are so, it appears that the allegations made in the FIR even if they are taken at their face value and accepted in their entirety do not taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out the case against the prima-facie constitute any offence or make out the case against the Petitioners/Accused. We say so because the only allegation made Petitioners/Accused.

* 3/4 * common drinking house. Admittedly, along with the charge-sheet, common drinking house. Admittedly, along with the charge-sheet, the prosecution has not placed on record blood test report of the the prosecution has not placed on record blood test report of the Petitioners to establish that they had consumed liquor in the Petitioners to establish that they had consumed liquor in the common drinking house. The only material against the Petitioners common drinking house. The only material against the Petitioners brought on record is the statement of the Investigating Officer who brought on record is the statement of the Investigating Officer who had raided the "Common Drinking House" that, the Petitioners were had raided the "Common Drinking House" that, the Petitioners were smelling alcohol.

In the given set of facts and upon perusing the smelling alcohol. In the given set of facts and upon perusing the material on record, we are of the opinion that neither the FIR nor material on record, we are of the opinion that neither the FIR nor other material accompanying it discloses any offence much less the other material accompanying it discloses any offence much less the cognizable offence against the Petitioners. It cannot be ignored that cognizable offence against the Petitioners. It cannot be ignored that the Petitioners had been to the restaurant for having food, which the Petitioners had been to the restaurant for having food, which was raided by the Respondents. The Prosecution has not brought on was raided by the Respondents.

The Prosecution has not brought on record any evidence to show that it was within the knowledge of the record any evidence to show that it was within the knowledge of the Petitioners that the premises, i.e, 'Hotel on the Rocks' was "Common Petitioners that the premises, i.e, 'Hotel on the Rocks' was "Common Drinking House" within the meaning of Section 2(7) of the Drinking House" within the meaning of Section 2(7) of the Maharashtra Police Act. That unless prosecution discharges Maharashtra Police Act. That unless prosecution discharges primary burden as aforesaid, presumption under Section 84 of the primary burden as aforesaid, presumption under Section 84 of the Act will not be of any assistance to prove the charge under Section Act will not be of any assistance to prove the charge under Section 84 of the Act.

Besides, prosecution has not subjected the Petitioners 84 of the Act. Besides, prosecution has not subjected the Petitioners to medical test and, therefore, there is no evidence on record to to medical test and, therefore, there is no evidence on record to prima-facie establish that they had consumed liquor in the common prima-facie establish that they had consumed liquor in the common drinking house which allegedly was not possessing licence/permit drinking house which allegedly was not possessing licence/permit to sell the liquor.

to sell the liquor.

* 4/4 * In view of the aforesaid facts, the Petition is allowed In view of the aforesaid facts, the Petition is allowed and the Crime No.49 of 2007 registered with the Kothrud Police and the Crime No.49 of 2007 registered with the Kothrud Police Station, Pune and the charge-sheet filed therein as against the Station, Pune and the charge-sheet filed therein as against the Petitioners is hereby quashed and set aside. The Petition is, Petitioners is hereby quashed and set aside. The Petition is, accordingly, made absolute in terms of prayer clauses (b) and (b-i). accordingly, made absolute in terms of prayer clauses (b) and (b-i). (SANDEEP K. SHINDE, J) (SANDEEP K. SHINDE, J) (R.M.SAVANT, J) (R.M.SAVANT, J)