# STATE OF A.P v. GOURISHETIY MAHESH & ORS

- **Citation:** [2010] 8 S.C.R. 423
- **Court:** Supreme Court of India
- **Decided:** 2010-07-15
- **Case number:** Criminal appeal no.1252 of 2010
- **Bench:** P. Sathasivam, Anil R. Dave
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-a-p-v-gourishetiy-mahesh-ors-27045
- **Pages:** 12

## Headnote

Code of Criminal Procedure, 1973:
A
B
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
seized and a case was registered under Sections 34(e),
F
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 fullfledged 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; 433A-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
circumstances, whether the material in existence would
B
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

## Text

[2010] 8 S.C.R. 423
STATE OF A.P.
v.
GOURISHETIY MAHESH & ORS.
(Criminal appeal no.1252 of 2010)
JULY 15, 2010
[P. SATHASIVAM AND ANIL R. DAVE, JJ.]
Code of Criminal Procedure, 1973:
A
B
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
seized and a case was registered under Sections 34(e),
F
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 fullfledged 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; 433A-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
circumstances, whether the material in existence would
B
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]
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.
Case law reference:
(2004) 6 sec 522
AIR 1960 SC 866
(2009) 1 sec 114
relied on
relied on
relied on
1992 Supp (1) SCC 335 relied on
para 9
para 10
para 11
para 11
E
F
G
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.
F
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.
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.
H
The Govt. Chemical Examiner gave the Laboratory Analysis
Report (Annexure P-12) which reads as under:-
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.
1
10415
2.
3.
Description of the
Percentage of Remarks
sample
proof Spirit of
Hydrometer
'·
Strength of
Alcohol
2
3
4
A dark brownish
The sample is
coloured substance
containing sugar
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
Huzurabad.
unfit for
Test Conducted
consumption
Test for SCJgars:
Positive
The une
0xpended portion of the sample (s) is returned
in securely sealed.
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.
Examiner
Dt. 21.09.2002
K. Mahender Reddy)
Govt. Chemical Examiner
of Proh. & Excise Regl.
Proh. Excise Laboratory
c
D
E
F
G
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
G
H
not confer any new powers on the High Court.
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:
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
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,
D
E
F
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:
0
E
"(1) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of sanction;
(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
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.
H
12. While exercising jurisdiction under Section 482 of the
Code, the High Court would not ordinarily embark upon an
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
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 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
B
c
D
E
F
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
0 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
E was not justified in quashing the FIR in Crime No. 288/200203 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.