Jeevan Singh vs State of Uttaranchal

Prafulla C. Pant, J.—This revision is directed against the judgment and order dated 27.07.2001, passed by Sessions Judge, Nainital, in Criminal Appeal No. 22 of 2000, whereby the conviction and sentence recorded by the trial court (Chief Judicial Magistrate, Nainital) vide his order dated 12.09.2000, passed in Criminal Case No. 734 of 1991, against the revisionist, in respect of offence punishable u/s 60/72 of the U.P. Excise Act, 1910, is affirmed.

Heard learned Counsel for the parties and perused the record.

Prosecution story, in brief, is that in the intervening night of 16th and 17th of March 1991, Sub Inspector Kamal Ram Arya (P.W. 1), constable Gopal Singh (P.W. 2) along with Constables Ranveer Singh and Nandan Singh, at about 02:40 A.M., checked the vehicle make DCM Toyota, bearing registration No. USZ / 9458 coming from Haldwani, near Jeolikot barrier. It was found that in said truck in 73 white bags and 07 jute bags, country made liquor was being transported illegally. Driver of the vehicle namely Prem Singh and another person Jeevan Singh (present revisionist) were arrested by the police and the goods were seized, after preparing the recovery memo (Ext. A -1). The crime was investigated by Sub Inspector Pooran Chandra Pandey (P.W. 4), who after completion of investigation, submitted charge sheet against the accused Prem Singh and the present revisionist Jeevan Singh. It appears that accused Prem Singh died during trial and the trial as against him stood abated on 17.12.1999. The present revisionist Jeevan Singh stood trial, who pleaded not guilty before the trial court. Prosecution got examined Sub Inspector Kamal Ram Arya (P.W. 1), Constable Gopal Singh (P.W. 2), Station House Officer, Tallital, Rajendra Singh (P.W. 3), Sub Inspector Pooran Chandra Pandey, Investigating Officer (P.W. 4) and Excise Inspector R.P. Verma (P.W. 5). The evidence was put to the accused. After hearing the parties the trial court (Chief Judicial Magistrate, Nainital) vide his order dated 12.09.2000, found accused Jeevan Singh guilty of charge of offence punishable u/s 60(1)(a) of the U.P. Excise Act, 1910. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of one year and also directed to pay fine of Rs. 16,000/-. Aggrieved by said judgment and order dated 12.09.2000, passed by the Chief Judicial Magistrate, Nainital, in Criminal Case No. 734 of 1991, convict Jeevan Singh (revisionist) preferred Criminal Appeal No. 22 of 2000, before the Sessions Judge, Nainital. Said court vide its impugned order dated 27.07.2001, after hearing the parties, dismissed the appeal. Hence, this revision.

After going through the lower court record and evidence adduced by the witnesses, this Court finds that the trial court and the lower appellate court have committed no error of law in convicting the accused u/s 60(1)(a) of the U.P. Excise Act, 1910. Learned Counsel for the revisionist submitted that there is inconsistency in the evidence on record as at some places only 73 bags are said to have been found, and at other places 80 bags are said to have been found from the possession of Prem Singh and Jeevan Singh. On close scrutiny of the evidence on record, this Court finds that there is no inconsistency as it is clear from the statement of the witnesses and the recovery memo that 73 bags were white plastic bags, while 07 bags were the jute bags, and in all 80 bags were found containing packs of 100 ml. country made liquor, which was being transported by the accused in wee hours, in a clandestine manner. The huge quantity of liquor could not have been planted on the accused by the police, in the circumstances of the case.

Learned Counsel for the revisionist submitted that the main accused Prem Singh has already died and accused Jeevan Singh is litigating for last almost 19 years. It is further pleaded that revisionist is a poor man and has already been in jail for almost a fortnight. Perusal of the trial court record shows that the revisionist was arrested on 17.03.1991, and directed to be released on bail on 19.03.1991. Perusal of the record of the lower appellate court and this Court shows that on 27.07.2001, the revisionist was taken into custody by the appellate court, and directed to be released on bail by this Court on 07.08.2001, as such, he had remained in jail for more than a fortnight. The revisionist has also been directed to pay fine of Rs. 16,000/- on the charge he was found guilty.

Having considered submissions of learned Counsel for the parties and after going through the papers on record, this revision is dismissed so far as it relates to the conviction of the revisionist Jeevan Singh recorded by the trial court and affirmed by the lower appellate court, in respect of offence punishable u/s 60(1)(a) of the U.P. Excise Act, 1910. However, on the point of sentence, the revision is partly allowed and the same is reduced to the imprisonment already undergone by the revisionist during trial, and after conclusion of the appeal, and to the fine as directed by the courts below. As such, it is made clear that the sentence relating to fine is not interfered with. If the revisionist fails to pay fine of Rs. 16,000/-, as directed to be paid by the trial court, and affirmed by the lower appellate court, within a period of one month, he shall undergo four months imprisonment as directed by the trial court. Accordingly, this revision stands disposed of. Lower court record be sent back.