Babulal vs State of M.P.

W.A. Shah, J.

This revision u/s 397/401 of the Code of Criminal Procedure ("Code" hereafter) by the accused-applicant is against the judgment dated 16.10.2001 passed by learned Sessions Judge, Shajapur, in Criminal Appeal No. 149/2001 confirming the conviction u/s 34(1)(a) M.P. Excise Act and sentence under Sub-section (2) thereunder (as amended from 4.8.2000) to RI for one year and fine of Rs. 25,000/- with usual default clause.

According to prosecution, on 6.6.2001, PSI Vivek Chauhan P.W. 5 along with his associates had gone to village Hajipur with a view to execute arrest warrant of a warrantee. There an informant gave him information that a person was looking for conveyance to transport liquor illegally, therefore he went to the place said to have been occupied by the delinquent. As he reached there with his companions, the delinquent, along with one container, started running. He also left behind some containers. They chased and apprehended him. His identity was discovered as the accused-applicant and the material with him appeared to be liquor hence he was asked by PSI Vivek Chauhan about the licence to which he replied in the negative. Accordingly, seizure proceedings were undertaken. In the presence of two panch vide Ex.P-2-C, 288 quarter bottles of Whisky, 350 quarter bottles of plain liquor as also 20 bottles of plain liquor, in all 129 bulk liters placed in different (Kattis) were seized from the accused-applicant. He was also arrested Ex.P-3. He was taken to Police Station Sarangpur and FIR Ex.P-4 was reduced to writing. As the seized material was opined by Excise Sub-Inspector P.W. 1 G.L. Jonvar to be liquor, the accused was challaned in the Court of Judicial Magistrate First Class, Sarangpur, for offence of Section 34(1)(a) M.P. Excise Act ("Act" hereafter). He having abjured his guilt, case went to trial.

At the conclusion of the trial, the learned Magistrate held the accused-applicant guilty. Since Sub-section (2) of Section 34 required minimum fine of Rs. 25,000/- to be imposed for the offence u/s 34(1)(a) of the Act along with jail sentence and the learned Magistrate was of the view that he not being competent to impose that much fine in view of the provisions of Section 29(2) of the Code, he made a reference u/s 325 to the Chief Judicial Magistrate vide order dated 24.9.2001 passed in Criminal Case No. 445/2001. The learned Chief Judicial Magistrate, Shajapur, consequently passed judgment dated 10.10.2001 in Criminal Case No. 1610/2001 holding the applicant-accused guilty u/s 34(1)(a) of the Act, sentenced him u/s 34(2) of the Act to RI for one year and fine of Rs. 25,000/- with a direction that default would entail further one year incarceration. The accused-applicant took the matter to Sessions Court in appeal. He did not find favour with the learned Sessions Court. Feeling aggrieved thereby, he has preferred this revision application.

The first contention of the learned Counsel for the accused-applicant is that the learned trial Magistrate lacked initial jurisdiction, therefore, the conviction in question is liable to be struck down.

For appreciating the above argument, it is necessary to have a look of the relevant provisions of law. First of all I would like to quote Section 34 of the Act, which reads as under:

Penlaty for unlawful manufactrure, transport, possession, sale etc.-

(1) Whoever, in contravention of any provision of this Act, or of any rule, notification or order made or issued thereunder, or of any condition of a licence permit or pass granted under this Act:

(a) Manufactures, transports, imports, exports collects or possesses any intoxicant; or

(b) save in the cases provided for in Section 38, sells any intoxicant; or

(c) cultivates bhang; or

(d) taps any toddy producing tree/or draws toddy therefrom; or

(e) constructs, or works any distillery, brewery or vintnery; or

(f) uses, keeps or has in his possession any material, still utensil, implement or apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy; or

(g) removes any intoxicant from any distillery, brewery, vintnery or warehouse licensed, established or continued, under this Act; or

(h) bottles any liquor,

shall subject to the provisions of Sub-section (2) be punishable for every such offence with imprisonment for a term which may extend to one year and fine which shall not be less than five hundred rupees but which may extend to five thousand rupees:

Provided that when any person is convicted under this Section of any offence for a second or subsequent time he shall be punishable for every such offence with imprisonment for a term which shall not be less than two months but which may extend to twenty four months and with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees.

(2) Notwithstanding anything contained in Sub-section (1) if a person is convicted for an offence covered by Clause (a) Clause (b) of Sub-section (1) and the quantity of the intoxicant being liquor found at the time or in the course of detection of the offence exceeds fifty bulk liters, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees:

Provided that when any person is convicted under this section for an offence for second or subsequent time, he shall be punishable for every such offence with imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than fifty thousand rupees but may extend to two lacs rupees.

(3) When an offence covered by Clause (a) or Clause (b) of Sub-section (1) is committed and the quantity of liquor found at the time or in the course of detection of such offence exceeds fifty bulk liters, all intoxicants, articles implements, utensils, materials, conveyance etc. in respect of or by means of which the offence is committed, shall be liable to be seized and confiscated. If such an offence is committed by or on behalf of a person who holds a licence under the Act for manufacturing or stocking or storing liquor for sale on which duty at the prescribed rate has not been paid then notwithstanding anything contained in Section 31 the licence granted to him shall be cancelled in case he is convicted for the offence as aforesaid.

(4) The seizure or confiscation of the intoxicants, articles, implements, utensils, materials and conveyance and the cancellation of licence as provided under Sub-section (2) above shall be in addition and without prejudice to any other action that may be taken under any provisions of the Act or rules made thereunder.

Now I come to Section 29 of the Code. It is as under:

Sentences which Magistrates may pass - (1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.

(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees, or of both.

(3) The Court of Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding five thousand rupees, or of both.

(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class.

Accordingly, in view of minimum fine Rs. 25,000/- being compulsory under Sub-section (2) of Section 34 of the Act read with Sub-section (2) of Section 29 of the Code, the above argument of the learned Counsel for the applicant apparently appears to be attractive. However, the matter has got to be examined further. In that connection my attention goes to Section 26 of the Code which extracted below:

Courts by which offence are triable - Subject to the other provisions of this Code-

(a) any offence under the Indian Penal Code (45 of 1860) may be tried by-

(i) the High Courts, or

(ii) the Court of Session, or

(iii) any other Court by which such offence is shown in the First Schedule to be triable.

(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by-

(i) the High Court, or

(ii) any other Court by which such offence is shown in the First Schedule to be triable.

In the circumstances of of the case above, Clause (b) along with Sub-clause (ii) is applicable. As such, first schedule of the Code is presently needed to be mentioned. It is as under:

II-CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS

Offence Cognizable or non-cognizable Bailable or non-bailable By what Court triable

If punishment with death, imprisonment for life, or imprisonment for more than 7 years. Cognizable Non-bailable Court of Session

If punishment with imprisonment for 3 years and upwards but not more than 7 years. Ditto Ditto Magistrate of the first class

If punishment with imprisonment for less than 3 years or with fine only. Non-cognizable Bailable Any Magistrate

As such the combined reading of Section 26 with the above second entry of schedule first reveals that for the determination of jurisdictional competence, jail sentencing empowerment of Judicial Magistrate First Class is the determining factor. A Judicial Magistrate First Class being competent to award jail sentence up to three years the trial of the case at hand, therefore, did not fall outside the jurisdiction of concerned Judicial Magistrate First Class as it could fetch the maximum of three years of jail sentence. Therefore, the above argument in the result is an unimpressive as it had been before the Sessions Court in appeal of the accused-applicant.

The next contention of the learned Counsel for the accused-applicant is that the prosecution has failed to establish beyond doubt that the bulk of the material said to have been seized from the accused-applicant is liquor. He stressed that the quantity put to test by the Excise Sub Inspector out of the quantity in question has not been sufficient, consequently the bulk in question is not proved to be liquor and thus the applicant deserves acquittal. In this respect P.W. 5 Vivek Chauhan has deposed that at the relevant time he seized from the accused vide Ex.P-2-C, 288 quarter bottles of Whisky, 350 quarter bottles of plain liquor and 20 bottles of plain liquor each of 750 ML. The seizure memo shows that they were placed in containers (Kattis) P.W. 5 has also deposed that he did not remember whether he sent the entire bulk seized for test to excise SI or sent how much to him. I further find that P.W. 1 G.L. Jonvar the Excise SI as per his assertion in his statement, had received one-bottle of plain liquor and three or four quarter bottles of English and plain liquor. On their test he opined them as liquor vide report Ex.P-1 and Ex.P-2. As per statement of PW5 Vivek Chauhan and the seizure memo Ex.P-2-C total quantity of material in question is 129 bulk liters, therefore, the quantity put to test out of the above being comparatively very meagre the above reports cannot be attached any conclusiveness. They being the only basis for proving the liquor in question to be liquor when under the circumstances they are bereft of probative value, the Courts below went perverse to find the accused-applicant guilty of illegally possessing liquor not understanding the direction of the Hon''ble apex Court laid down in Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panji, Goa, in this respect, though with reference to narcotic law, the concerned authorities must send entire of seized quantity or sufficient quantity therefrom by way of samples of analysis.

In the result this revision deserves to be allowed. It is accordingly allowed and consequently the accused-applicant is acquitted of the charge of Section 34(1)(a) read with (2) of the Act. Amount, if any, paid towards fine, be refunded according to law. The accused-applicant is on bail. His bail stands discharged.