Ambaram S/o Karan Singh Rajput vs State Of MP

Applicant has filed the present revision being aggrieved by the judgment dated 19.08.2015 passed by the Additional Chief Judicial Magistrate, Dewas whereby he has been convicted under section 34(2) of the M.P Excise Act and sentenced him to undergo RI for one year with fine of Rs.25,000/- with further default stipulation affirmed vide the judgment dated 10.12.2015 passed by the IIIrd Additional Sessions Judge, Dewas dismissing the appeal.

Facts of the case, in short, are as under:

On 23.08.2001 Suryakant Shinde Excise Asst. Sub Inspector based on discreet information stopped the truck No.MKH-6525 at the old toll tax check post at Indore-Bhopal road and enquired from the driver Ambaram i.e. present applicant. The applicant disclosed that the truck is loaded with foreign liquor and he was having the export permit No.2460 dated 22.08.2001 of Som Distillery Ltd, Sehatganj, Raisen, and transporting to M/s Nicco Angami North East Branded Warehouse, Deemapur, Nagaland following the route given in the permit. The A.S.I checked two boxes and found that in the label of bottles the words "for sale in M.P only" were printed whereas the permit was issued for the sale of liquor in Nagaland State. On the basis of suspicion, he checked other boxes also and in all the bottles he found the words "for sale in M.P only" in place of "not for sale in M.P" or "for sale in Nagaland only". In some bottles, he found that the word "not" printed with black ink which was easily removable by rubbing it by wet hand. As he did not find the permit No.2460 as valid permit, hence seized 6390 liters of liquor along with the truck by registering a case no.111/2001 for the offences punishable under section 34(1)(a) & 34(2) and 42 of the M.P Excise Act. He recorded the statements of Krishna Kumar, Brijkumar, Sreedhar and Sunil and submitted a complaint before the JMFC, Dewas against the (i) applicant, (ii) Ramansingh, (iii) Kisanrao and (iv) Prahlad Sharma. As per the complaint he took the statement of S.K.Telang, Astt. Excise Inspector, who was given the charge of Som Distillery on 22.08.2001. Thereafter, he recorded the statements of Shri Goyal, General Manager, Sreedhar, Astt. General Manager and they informed that Prahlad Sharma used to look after the work of dispatch in Som Distilleries . He also enquired from J.K. Arora, the Chairman and Director of Som Distillery, who disclosed the name of Prahlad Sharma used as in-charge of the Dispatch Section of the factory. According to the I.O., he tried to search Prahlad Sharma for one and half months but unable to arrest him as he was hiding himself, hence he was declared as absconding. Suryakant Shinde, Excise Asst. Sub Inspector also wrote a letter dated 10.09.2001 to the Excise Commissioner, Deemapur, State of Nagaland to enquire as to whether the seized consignment was being transported to Nagaland under export permit No.246 dated 22.08.2001 and import permit No.07/NBWH/PMBW/IMFL/2001 dated 28.05.2001 but without awaiting reply he filed the complaint before the Judicial Magistrate First Class.

Vide order dated 15.12.2004 learned JMFC framed the charge under section 34(2) of the Excise Act against 3 accused. During trial other two accused viz. Raman Singh and Kishanrao remained absconding and the trial proceeded against the present applicant. The prosecution examined Kishore, Goswami & Pawan Kumar as seizure witnesses and Suryakant Shinde, Asst. Excise Officer (I.O) (PW/3), Annu Verma (PW/4), Ramesh (PW/5) & Dineshchand Vyas, Retired Head Constable (PW/6). The applicant denied the charges and pleaded as innocent. Out of six witnesses, PW/4 has turned hostile. After appreciating, evidence came on record vide judgment dated 19.08.2015, learned ACJM has convicted the applicant under section 34(2) of the M.P Excise Act and sentenced as mentioned above. Being aggrieved by the aforesaid judgment, applicant preferred appeal and that too has been dismissed vide judgment dated 10.12.2015. Thereafter, the applicant filed this revision before this Court. Vide order dated 22.02.2016 the applicant was released on bail and thereafter this revision was admitted for final hearing on 14.10.2016. Vide order dated 28.11.2019 due to default of appearance bailable warrant for a sum of Rs.5000/- was issued against the applicant. Despite service of the bailable warrant when he did not appear a non-bailable warrant was issued against him and thereafter he was arrested on 21.03.2020.

Learned counsel appearing for the applicant submits that the applicant is an innocent person and he was wrongly been implicated in this case. He was the driver of the transport agency viz. Indore-Bilaspur Road Lines, Bhopal for transportation of the liquor from MP to Nagaland. He was going on his fixed route as per permit. He was not aware of the label printed on the bottle. The prosecution did not conduct the proper investigation by not implicating actual culprits in this case. The applicant is in jail for the last 8 months out of one year RI. He is facing the agony of trial since 2001 by attending the Court regularly, therefore, either he be acquitted honorably from the charge or in alternate the period of the sentence be reduced from one year to the period already undergone in the interest of justice.

Shri Gagan Bajad, learned Panel Advocate appearing for the respondent/State submits that 6390 liters of liquor was found from the possession of the applicant, hence he has rightly been made accused in this case along with other co-accused. Though the applicant was carrying permit of transportation of liquor from MP to Nagaland but in the label, it was not printed that this liquor is saleable in the State of Nagaland. The applicant was likely to deliver the vehicle in MP itself, therefore he has rightly been convicted. Under section 34(2) of the M.P Excise Act, there is a minimum sentence of one year, therefore, the same cannot be reduced, hence the revision is liable to be dismissed.

I have heard learned counsel for the parties and perused the entire record.

On the basis of discreet information, Suryakant Shinde Excise Asst. Sub Inspector stopped the truck No.MKH-6525 at the old toll check post on Indore-Bhopal Road and demanded the permit from the applicant. The applicant produced a copy of the valid export permit No.246, dispatch advice dated 22.08.2001, consignment note No.15524 dated 22.08.2004, invoice No.1SS-159 dated 22.08.2001 issued by the Som Distillery Ltd. Raisen. Then he randomly checked 2-3 boxes loaded in the truck and found that in the bottles labels of bottles were printed with "for sale in MP only" and the consignment was being transported to Nagaland State for sale of liquor. Thereafter, he checked all the bottles in which the same labels were there. In some quarters for sale in MP the word "not" was printed with black ink which was removable by simple rubbing by wet hand. As per his opinion if the vehicle was going to Nagaland then it should have been labeled as for sale in Nagaland or for not sale in M.P. He enquired the CMD, General Manager and the Astt. Manager of Som Distillery and they disclosed the name of Prahlad Sharma as the Incharge of dispatch section. After several efforts, he could not be arrested Prahlad Sharma. It was the duty of the Suryakant Shinde, Excise Asst. Sub Inspector to collect more information about Prahlad Sharma about his employment in the Som Distilleries. It appears that the CMD and the General Manager gave a fake name to the I.O. and he believed and made him accused. He has not verified whether any employee in the name of Prahlad Sharma was actually working in Som Distillery even his residential address was obtained. Not a single paper about his service was seized. The trial remained pending for 15 years but no effort has been made to arrest Prahlad Sharma or to collect more information about him. The CMD and the then General Manager tried to mislead the I.O. by giving a fake name to save themselves. Learned Judicial Magistrate First Class should have looked into during trial which is serious lapses on his part.

It is not in dispute that the applicant was engaged as a driver by the transport agency viz Indore-Bilaspur Road Lines, Bhopal. He was handed over the copy of the export permit No.2460, dispatch advice dated 22.08.2001, bilty consignment note No.15524 dated 22.08.2004, invoice No.1SS-159 dated 22.08.2001 by the Som Distillery Ltd. Raisen and the truck was loaded with liquor for transportation to Nagaland. The route between Sehatganj to Deemapur was mentioned as Bhopal-Indore-Dhulia-Jalgaon-Nagpur-Colcatta-Deemapur. The applicant was following the correct route as per the permit. The present case has been registered against the applicant and 3 others alleging that they were transporting the liquor labeled as for sale from MP to Nagaland. It is not the case of the Excise department that the truck was going on a different route than the route mentioned in the permit, therefore, the applicant was following the route mentioned in the permit No.2460. The applicant was engaged as a driver at that time and 2 other accused were kept as cleaner in the truck. The liquor was loaded in sealed boxes. The bottles were labeled in the factory premises and packed in the boxes by the employees of the Som Distilleries and in which there was no role of the applicant /accused. Before filing Challan the I.O. wrote a letter to the Excise Commissioner Nagaland in order to verify the export as well as import license and without awaiting the reply from other side he filed the complaint alleging that the permit is fake and the large quantity of the liquor was being transported for sale in M.P. He did not care to visit Deemapur, Nagaland to verify the veracity of the import permit, therefore, the present applicant has wrongly been convicted in this case looking to the charges or the material collected by the I.O. I find serious lapses in the investigation/ enquiry on the part of Suryakant Shinde, Excise Asst. Sub Inspector, Both the Courts below have not seriously examined how the inquiry was conducted by the I.O. It is a case where the real culprits have not been made accused and Challan has been filed against the driver, cleaners and sham persons.

In view of the above, the revision is allowed and both the judgments of conviction and sentence are hereby set aside. The applicant be released forthwith, if not required in any other case. The fine amount, if any deposited, be returned to the applicant.

It is a case where the I.O did not conduct the proper inquiry and tried to save actual culprits. He did not record the statement of S.K.Telang, Excise Sub Inspector who was posted in the Som Distillery at the relevant point of time and prepared the permits. It was the duty of S.K.Telang to examine the label on the bottle before loading it into the truck. The owner and General Manager of the Som Distillery gave a sham name to the I.O to save themselves. A copy of this order be sent to the Excise Commissioner, M.P to conduct an enquiry into this matter to find the lapses on the part of Suryakant Shinde, Excise Asst. Sub Inspector and S.K.Telang Assistant Excise officer. The enquiry/investigation is still open against 3 absconding accused, therefore, respondent is directed to arrest them and proceed with the trial. If it is found that a person in the name of Prahlad Sharma does not exist and a fake name was given then action be taken against the owner and the then General Manager and Asstt. Manager of Som Distillery named in the enquiry report / Final report.

The Excise Commissioner Bhopal is directed to submit a compliance report within 8 weeks from today.

This Criminal Revision be treated as allowed for the applicant but be listed for the compliance as directed above.

List on 28.09.2020.

C.c as per rules.