STATE OF A.P.versusGOURISHETIY MAHESH & ORS.

                 [2010] 8 S.C.R. 423


                      STATE OF A.P.                            A
                             v.
             GOURISHETIY MAHESH & ORS.
             (Criminal appeal no.1252 of 2010)
                       JULY 15, 2010
                                                               B
        [P. SATHASIVAM AND ANIL R. DAVE, JJ.]


    Code of Criminal Procedure, 1973:

      s. 482 - Scope of - Black jaggery transported for alleged C
 preparation of illicit liquor- Seizure and confiscation - Upheld
 by Commissioner of Prohibition and Excise - Report of
 chemical examiner that the seized jaggery was "fit for
 fermentation, producing alcohol unfit for consumption" - Case
registered against accused under ss.34(e), 41, 42 of the D
Andhra Pradesh Excise Act, 1968 - Order of High Court
 quashing the proceedings against accused - Held: Not
justified - Complaint prima facie disclosed commission of the
 offence and involvement of accused - Exercise of inherent
power u/s.482 - Explained - Andhra Pradesh Excise Act, E
 1968- ss.34(e), 41, 42.

     Prosecution case was that the accused-respondents
were transporting 5040 Kgs. of black jaggery and alum
illegally in a van. The van and the black jaggery were         F
seized and a case was registered under Sections 34(e),
41, 42 of the Andhra Pradesh Excise Act, 1968 against the
accused-respondents. The government chemical
examiner gave report that the sample of seized goods
was jaggery "fit for fermentation producing alcohol unfit      G
for consumption". High Court allowed the petition for
quashing the proceedings against respondents.
Aggrieved, the State filed the appeal.
                            423                                H
    424      SUPREME COURT REPORTS               [2010] 8 S.C.R.


A         Allowing the appeal, the Court

         HELD: 1.1. While exercising jurisdiction under
    Section 482 Cr.P.C., the High Court would not ordinarily
    embark upon an enquiry whether the evidence in
B   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
    courts should be circumspect and judicious in exercising
    discretion and should take all relevant facts and
C   circumstances into consideration before issuing process,
    otherwise, it would be an instrtJment 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
D   a prosecution and bring 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. The
E   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. If the allegations set out in the
F   complaint do not constitute the offence of which
    cognizance has been taken by the Magistrate, it is open
    to the High Court to quash the same in exercise of
    inherent powers under Section 482. [Para 12] [432-H; 433-
    A-G]
G
      1.2. 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
H mentioned that the transported Jaggery was 'fit for
 STATE OF A.P. v. GOURISHETTY MAHESH & ORS. 425


fermentation producing alcohol unfit for consumption'. It A
is also relevant that the Deputy Commissioner of
Prohibition and Excise after finding that an offence under
A.P. Excise Act, 1968 has been made out, seized the
jaggery and confiscated it. The said order was confirmed
by the Commissioner of Prohibition and Excise. In the B
circumstances, whether the 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 C
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 D
Court in the instant case. It is not a case where it can be
said that the complaint did not disclose commission of
an offence. The High Court was not justified in quashing
t~e FIR. [Para 13) [433-H; 434-A-D]
                                                              E
     State of A.P. v. Golconda Unga Swamy and Another
(2004) 6 SCC 522; R.P. Kapur v. State of Punjab AIR 1960
SC 866; State of Andhra Pradesh v. Bajjoori Kanthaiah and
Another (2009) 1 SCC 114~ State of Haryana v. Bhajan Lal
1992 Supp (1) SCC 335 - relied on.                            F

                    Case law reference:

    (2004) 6 sec 522          relied on         para 9
                                                            G
    AIR 1960 SC 866           relied on         para 10

    (2009) 1 sec 114          relied on         para 11

    1992 Supp (1) SCC 335 relied on             para 11      H
                                               ·.   'l    •



    426      SUPREME COURT REPORTS                       [4010] 8 S.C.R .
                                            . .
                                             I •



A       CRIMINAL APPELLATE JURISDICTrON :-Criminal Appeal
    No. 1252 of 2010.            · . ·. · · ..·

      From the Judgment & Order dated 27.0i .2006 of the High
  Court of Andra Pradesh at Hyderabad in Crimin·a·I Petition No.
B 4362 of 2002.                                    ' .

         C.K. Sucharita, N. Das and D. Bharathi Reddy for the
    Petitioner.

c         The Judgment of the Court was delivered by

          P. SATHASIVAM, J. 1. Leave granted.

       2. This appeal is preferred by the State of Andhra Pradesh
0 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
E respondents herein and quashed the criminal proceedings in
  Crime No. 288/2002-03 of Prohibition & Excise Station,
  Huzurabad, Karimnagar initiated against them.

          3. Brief facts:
F
       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.
G 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
H 34(e), 41 and 42 of the Andhra Pradesh Excise Act, 1968. A
  STATE OF A.P. v. GOURISHETTY MAHESH & ORS .. 427
                [P. SATHASIVAM, J.] .
 show cause notice was issued to the owner of the vehicle and       A
 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 Jaggery fit for
 fermentation producing alcohol unfit for consumption.
                                                                    B
        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 C
  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 D
  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 E
  the explanation in response to the show 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. F
  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 G
  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,
        /                                      . .           .      H
    428     SUPREME COURT REPORTS                 [2010] 8 S.C.R.


A 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 against the respondents/accused in Crime No.
B 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
C 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
D 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.

E      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
F the van under the cover of panchanama. 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
G 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:-


H
    STATE OF.A.P. v. GOURISHETTY MAHESH & ORS. 429
                  [P. SATHASIVAM, J.]

      "PROHIBITION AND EXCISE DEPARTMENT,                              A
                 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          B
in the Laboratory with the following results.

S.No.    Description of the      Percentage of     Remarks
         sample                  proof Spirit of
                                 Hydrometer                            c
                 '·              Strength of
                                 Alcohol
1        2                       3                 4
10415    A dark brownish                           The sample is
         coloured substance                        containing sugar    D
         in a polythene cover                      and extraneous
         kept in a paper cove1                     matter. It is
         weighing (200)                            Jaggery fit for
         Grams.Cr.No.288/                          fermentation
         2002-03 of Station                        producing alcohol   E
         Huzurabad.                                unfit for
         Test Conducted                            consumption
         Test for SCJgars:
         Positive

2.
                 0

         The une xpended portion of the sample (s) is returned         F
         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.
                                                                       G
         Signature of Asst.             K. Mahender Reddy)
         Examiner                     Govt. Chemical Examiner
         Dt. 21.09.2002                of Proh. & Excise Regl.
                                      Proh. Excise Laboratory
                                                                       H
     430    . SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A     To
      The Proh. & Excise Inspector,
    ' Huzurabad, Karimnagar Dist.
      Copy submitted to the Proh. And Excise
      Superintendent, Dist. Hyderabad."
B        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
C 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 of
  Prohibition and Excise on 01.03.2004. In the light of the factual
D 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.
E 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
F    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.
G
           9. In State of A.P. vs. Golconda Unga 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:
H
STATE OF A~P. v. GOURISHETTY MAHESH & ORS. 431
              [P. SATHASIVAM, J.]

  " .... It enviS'ages three circumstances under which the          A
  inherent jurisdiction may be exercised, namely: (1) to give
  effect to an order under the Code, (ii) to preventabuse 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            B
  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            c
   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
                                                                    D
   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           E
  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       F
  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         G
  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
                                                                    H
    432       SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A         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
B         materials to assess what the complainant has alleged and
          whether any offence is made out even if the allegations are
          accepted in toto."

      10. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866          =
  1960 Cri LJ 1239, this Court summarised some categories of
C cases where inherent power can and should be exercised to
  quash the proceedings:

          "(1) where it manifestly appears that there is a legal bar
          against the institution or continuance e.g. want of sanction;
0
          (it) 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;

          (iit) where the allegations constitute an offence, but there
E         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
F 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 Lat, 1992 Supp (1) sec 335           =
                                              1992 sec (Cri) 426
G 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.

        12. While exercising jurisdiction under Section 482 of the
    Code, the High Court would not ordinarily embark upon an
H
 STATE OF A.P. v. GOURISHETTY MAHESH & ORS.                   433
               [P. SATHASIVAM, J.]
enquiry whether the evidence in question is reliable or not or        A
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        B
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         c
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 their face value and          D
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
                                                                      E
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            F
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
c!ear that if the allegations set out in the complaint do not         G
constitute the offence of which cognizance has been taken by
the 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         H
    4°34    SUPREME COURT REPORTS                   [201 OJ 8 S.C.R.


A 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
B 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
c 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 the complaint did not
  disclose commission of an offence. The acceptability of the
0
  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
E 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
F 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.

    D.G.                                            Appeal allowed.