Chimman Lal vs State of M.P. & Others

This Criminal Revision under Section 397 / 401 of the Code of

Criminal Procedure, 1973, hereinafter referred to "the Code", has been

filed by the petitioner against the Judgment dated 11.01.2002 passed

in Criminal Appeal No.180/2001 by learned 2 nd Additional Sessions

Judge, Burhanpur, District Khandwa, arising out of judgment of

conviction and sentence passed by Judicial Magistrate First Class,

Burhanpur, District Khandwa dated 18.10.2001, in Criminal Case No.

169/1999, whereby the petitioner was convicted under Section 34(A)

of the M.P. Excise Act and sentenced him to undergo rigorous

imprisonment for 1 year and fine of Rs.500/-, with default stipulation.

The case of the prosecution in nutshell is that on 25.05.1999,

the Officials of the M.P. Excise Department searched the house of the

petitioner and seized 83 boxes of whiskey quarters.

Learned trial Court framed charges punishable under Section

34(A) of M.P. Excise Act against the present petitioner, who abjured

the guilt, therefore he was put to trial.

Learned trial Court found the petitioner guilty for the offence

punishable under Section 34(A) of M.P. Excise Act and convicted and

sentenced as aforesaid, against which, the appeal has been preferred.

Learned Appellate Court affirmed the conviction and sentence awarded

by learned trial Court, hence, this revision.

Learned counsel for the petitioner submits that the impugned

judgments of conviction and sentence passed by learned Courts below

are contrary to facts and circumstances of the case and are liable to

be set aside. There are lots of contradictions and omissions in the

statements of the prosecution witnesses, hence, he prays that this

revision be allowed and the petitioner be acquitted in respect of the

offence punishable under Section 34(A) of M.P. Excise Act. He further

submits that independent witness Imran (PW-3) has not supported the

case of prosecution and since the independent witness has not

supported the case of prosecution, the statement of PW/1 S.N. Ali

cannot be relied upon. It is further submitted that no liquor has been

seized from the possession of the petitioner. Only seizure of liquor

from the house of the petitioner does not indicate that the petitioner

was in possession of the said liquor. There are no criminal antecedents

of the petitioner.

Per contra, learned Panel Lawyer appearing for

respondent/State has submitted that after due appreciation of

prosecution evidence, the learned Courts below have found the

offence proved against the petitioner, hence no interference is

required to be made in this revision.

Having heard learned Panel Lawyer for the respondent/State at

length, gone through the impugned judgments of learned Courts

below and statements of prosecution witnesses, I am of the view that

no error has been committed by learned Courts below in recording the

guilty of the petitioner as mentioned hereinafter and in convicting him

for offence punishable under Section 34(A) of M.P. Excise Act and

sentenced to undergo rigorous imprisonment for 1 year and fine of

Rs.500/- with default stipulation.

Learned counsel for the petitioner submits that prosecution has

examined three witnesses namely, Excise Sub-Inspector S.N. Ali (PW-

1), Excise Constable Mohd. Sadik (PW-2) and one independent witness

Imran Beg (PW-3). No doubt, S.N. Ali (PW-1) and Mohd. Sadik (PW-

2), who are interested witnesses and of Excise Department have

supported the case of prosecution and stated that the said liquors had

been seized from the residence and possession of the petitioner, but

this fact has not been supported by independent witness Imran Beg

(PW-3) and in these circumstances, the statement of Excise Sub-

Inspector S.N. Ali (PW-1) or Excise Constable Mohd. Sadik (PW-2) cannot be treated as reliable part of the evidence. No doubt, Imran

Beg (PW-3) has stated that he does not know the incident. Said liquor

had not been seized before him. Petitioner had also not been arrested

before him. He has been declared hostile and cross-examined by

ADPO at length but nothing has come on record which could support

the case of prosecution. In this way, independent witness Imran Beg

(PW-3) has not supported the case of prosecution regarding seizure of

said liquor.

However, it is settled principle of law that even though the

independent witnesses in such type of cases for one reason or the

other do not support the prosecution case, that cannot be an only

ground to discard the prosecution case in toto. On the other hand, if

the statements of the Investigating Officer relating to search and

seizure are found to be cogent, reliable and trustworthy, the same can

be acted upon to adjudicate the guilt of the accused. The Court will

have to appreciate the relevant evidence in light of other evidence

produced before the Court and determine whether the evidence of

Investigating Officer is believable, after taking due care and caution

while evaluating his evidence. From perusal of statement of

Investigating Officer, which is supported by other witness, it reflects

that his statement is not suffering from any such contradictions on the

basis of which it can be said that his statement is not believable.

Therefore, the conviction of the petitioner is hereby maintained.

Now the question arises that as to how a balance should be

struck and maintained in regard to the sentence ?

It is also to be noted that the date of incident is 25.05.1999.

M.P. Excise Act, 1915 has been amended by M.P. Act 22 of 2000 w.e.f.

04.08.2000. By this amendment, Sub-sections (2), (3) and (4) of

Section 34 of the Act have been substituted. Since date of incident of

this case is prior to date of enforcement of amendment i.e.,

04.08.2000, thus provisions of Section 34(2)(3)(4) are not applicable

in the case in hand. As per Section 34 of the Act, before above

amendment, offences under Section 34 of the Act shall 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 Rs.200/-, but

which may extend to Rs.2,000/-. Thus, for the offence punishable

under Section 34 of the Act, no minimum sentence was prescribed

before the amendment of 22 of 2000. Minimum fine is prescribed

Rs.200/-. As stated above, petitioner has been convicted and

sentenced to undergo RI for one year and fine of Rs.500/-, which has

already been deposited.

It is apparent from the perusal of the record that 55-56 years

old petitioner has been facing this criminal trial for about 18 years and

fine amount has already been deposited.

It is also apparent from the record that in compliance of

impugned judgment dated 11.01.2002 passed by the Appellate Court, the petitioner was brought under custody and after 10 days vide order

dated 21.01.2002, his sentence period was temporarily suspended by

this Court.

In this view of the matter, no fruitful purpose is going to be

served by again sending petitioner to the jail, therefore, it would be in

the interest of justice if the jail sentence of the petitioner is reduced to

the period already undergone by him.

In the result upholding the judgments of conviction recorded by

learned Courts below, I reduce the sentence awarded to the petitioner

to the sentence already undergone by him. This revision, to that

extent, is allowed and the impugned judgment is modified.

A copy of this order be sent to learned Courts below with the

record.