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Judgment
This revision has been preferred by the petitioners being aggrieved by judgment dated 23.10.2019 passed by the Sessions Judge, Sheopur, in Criminal Appeal No.31/2018, whereby learned Sessions Judge has though affirmed the judgment of conviction under Section 34(2) of the M.P. Excise Act passed by the Chief Judicial Magistrate, Sheopur, but modified the sentence from two years rigorous imprisonment to one year RI.
Precisely stated facts of the case of prosecution are that on 9.6.2011 at 1 am B.D.Chaudhary, Assistant District Excise Officer, P.K.Mangal, Excise Sub-Inspector Circle Karahal and R.K.Tiwari, Excise Sub-Inspector, alongwith other personnel of Excise Department were checking the vehicles on the basis of information of the informant at Dob Triangle, police Station Bargava, Distt. Sheopur. Excise Sub-Inspector P.K.Mangal tried to stop one Tata 407 bearing registration No.MP 08 D 5466 which was coming from the side of Sabalgarh, but the driver of the vehicle did not stop the vehicle and tried to speed away towards village Dob, however, personnel of the Excise Department intercepted the vehicle. Driver of the vehicle disclosed his name as Gufran and two persons sitting in the vehicle disclosed their names as Chhote Singh and Shishupal. On search of the vehicle, 180 cartons of Cox 5000 beer (total 1404 bulk liter), 15 cartons of country-made liquor (total 135 bulk liter) and 5 cartons of Goa whiskey (total 43.5 bulk liter) were seized. A sum of Rs.12,500/- was also seized from the vehicle and from Chhote
After investigation was over, charge-sheet was filed in the Court of Chief Judicial Magistrate, Sheopur, under Section 34(2) read with Section 59-A of the M.P. Excise Act.
Charge under Section 34(2) read with Section 59A of the M.P. Excise Act was framed against the petitioners. Accused abjured their guilt. Trial was conducted. After considering the evidence of the parties, Chief Judicial Magistrate, Sheopur, convicted the petitioners under Section 34(2) of the M.P. Excise Act and sentenced them to suffer two years RI with fine of Rs.25,000/- each. The petitioners thereafter preferred appeal in which their conviction under Section 34(2) of the M.P. Excise Act was affirmed, however, their sentence was reduced from two years to one year RI. Being aggrieved with this, petitioners have preferred this revision.
It is the submission of learned counsel for the petitioners that trial Court as well as appellate Court erred in recording conviction under Section 34(2) of the Excise Act against the petitioners while both the witnesses of seizure Vinod Shrivastava (PW-1) and Kaushlendra Singh (PW-2) have turned hostile and not supported the case of prosecution. No independent witness has been examined by the prosecution. To bolster his submission, learned counsel for the petitioners relied on decision of Apex Court in the case of Naresh Kumar @ Nitu v. State of Himachal Pradesh, 2017(III) MPWN 1.
Learned counsel for the respondent/State supported the impugned judgment and prayed for dismissal of the revision.
Heard the learned counsel for the parties and perused the record.
The instant case is in respect of offence under Section 34(2) of the M.P. Excise Act. Prosecution witnesses Vinod Shrivastava (PW-1) and Kaushlendra Singh (PW-2) are seizure witnesses and they turned hostile and did not support the story of prosecution. These witnesses although admit that they did not know the accused persons and showed ignorance about seizure of liquor in front of them, but they admitted their signatures over the seizure Panchnama, arrest memo, spot map and liquor verification report.
R.K.Tiwari (PW-3), who was the Excise Sub-Inspector at the relevant point of time, narrated the story about interception of vehicle, seizure of vehicle and seizure of liquor. Although in his cross-examination he admits the fact that instructions were received by him from District Excise Officer, but no document or entry in any register has been produced to reach to a conclusion about the instructions given by the District Excise Officer.
P.K. Mangal, who was the officer who intercepted thevehicle and seized the liquor, got superannuated and appeared as PW-4. He supported the story of prosecution. Therefore, testimony of an officer who was present at the relevant point of time cannot be ignored.
Although certain technical/procedural flaws have been tried to be raised by the petitioners, but these technical flaws cannot be looked into at the stage of revision where two Courts have already given their verdict after appreciating the evidence in detail. The Hon'ble Apex Court in the case of H.N.Rishbud and another v. State of Delhi, AIR 1955 SC 196 has held as under :-
"If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor, AIR 1944 PC 73 (C) and Lumbhardar Zutshi v. The King, AIR 1950 PC 26 (D)."
Even otherwise, the scope of revision is very limited. In the instant case, the trial Court as well as Appellate Court have considered necessary contours of the case in detail and after appreciating the evidence led by the parties awarded conviction/jail sentence. In fact, Appellate Court reduced the jail sentence from two years rigorous imprisonment to one year rigorous imprisonment. Already lenient view has been taken, therefore, at this juncture no other inference can be drawn on minor pretext or minor variation/contradiction here and there. The decision of the Apex Court relied upon by the petitioners moves in different factual realm, and therefore, cannot be applied in the present set of facts.
Resultantly, revision petition preferred by the petitioners deserves dismissal and accordingly it is dismissed. Petitioners are already in jail and they shall have to suffer the remaining part of jail sentence as awarded/modified by the appellate Court in Criminal Appeal No.31/2018.