Calcutta High Court Quashes Complaint Against Director As Prosecution Failed To Implead Company Importing Liquors Not For Sale

The Calcutta High Court has quashed the complaint against the director as the prosecution failed to implead the company importing liquors not for sale.

The bench of Justice Shampa Dutt (Paul) has observed that the company has not been made an accused. The petitioner, a director of the company, has been made an accused. The place of seizure and the seized articles on which the case has been initiated is the registered office of the company. The petitioner has also been arrested from the office of the company. The complaint was in clear violation of Section 46B of the Bengal Excise Act, 1909, which relates to offences by companies.

The petitioner is a retired Army Officer and has set up a Private Limited Company under the name and style “Duomo Distribution Private Limited” in the year 2017 under the relevant provisions of The Companies Act, 2013 for the purpose of importing new brands of foreign liquor from Europe in the Indian Market. The petitioner was appointed as one of the directors of the company since its inception in 2017. The company is appointed as the sole importer and marketing company in India for globally renowned liquor brands owned by leading manufacturers of international repute namely one Polini Group Italia SRL, Italy.

A raiding team of the Bidhannagar Excise Department conducted a raid at the marketing office of the company where from allegedly 292 bottles of foreign liquor of different brands, a total quantity – of 218.1 litres were allegedly seized. A forwarding report annexing the seizure list was forwarded before the Court of the Chief Judicial Magistrate at Barasat. The purpose of the seizure list was that the seized bottles of foreign liquor were unregistered and non-duty paid. As per the department, articles find its way in the clandestine market and involve interstate ramifications and erosion in the augmentation of Government revenue. It results in a heinous offence/business which is a direct threat to the Government exchequer, causing a huge loss to the Government's revenue.

The petitioner stated that the petitioner was apprehended by the investigating agency on the same day i.e. 31.10.2018 and produced before the Court on 01.11.2018. On the prayer of the petitioner for bail, the Trial Court enlarged the petitioner on bail by imposing certain conditions which were further relaxed by the Court.

After completion of the investigation, the investigating agency submitted the prosecution report under Sections 10/12/16/18(1) of The Bengal Excise Act, 1909 read with rule 118 of the West Bengal (Foreign Liquor) Rules, 1998 punishable under Sections 46A(c)(e)/52 of the Bengal Excise Act, 1909 against the petitioner.

The petitioner stated that the samples/foreign liquor seized in the instant case were not meant for sale. The declaration issued by Polini to the company mentioned that the bottles in question under the invoice were meant only for marketing and sales promotion purposes and were not for the purpose of sale. An invoice clearly indicates that stickers bearing the tag "NOT FOR SALE" which were supposed to be affixed on the bottles in question were ordered. However, before the same could be affixed, the bottles were seized on 31.10.2018.

As per rules 149 and 196 of the said Rules, excise is applicable to products where MRP is mentioned, however, in this instant case none of the bottles had any MRP on it as it was not for sale. The fees for issuance of a pass and the excise duty that is payable on any commodity for consumption can only be calculated on the MRP (maximum retail price) of such foreign liquor (Appendix F and Appendix K of the said Rules), and in the absence of retail price, there is no mechanism for the calculation of any duty.

The petitioner stated that the investigation in the instant case has been carried out in a biased manner, without proper administration of law and hence the report filed at the end of such investigation is bad in fact and in law. It is a clear proposition of law that in the case of criminal law there is no concept of vicarious liability until and unless the company being a juristic entity which can sue and be sued in its own capacity as per the law, is made a party.

The court while allowing the criminal revision petition quashed the proceedings in Complaint under Sections 10/12/16/18(1) of the Bengal Excise Act, 1909 read with rule 118 of West Bengal (Foreign Liquor) Rules, 1998 and punishable under Sections 46A(c)(e)/52 of the Bengal Excise Act, 1909 including the prosecution report.

Counsel For Appellant: Sabyasachi Banerjee

Counsel For Respondent: Sanjay Bardhan

Case Title: Mr. Raj Sahai vs. the State of West Bengal & Anr.

Case No.: CRR 100 of 2020

Citation: 2024 LiveLaw (Cal) 44

Click Here To Read The Order