Kishan Bahadur vs State of H.P.

Dev Darshan Sud, J.—The Petitioner challenges his conviction u/s 61(1)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh.

The prosecution case in brief is that on 15.5.2002 at about 8.30 a.m., police party headed by Sh. Braham Dass was on patrolling duty near Jagatkhana when they received secret information that the Petitioner accused was indulging in preparing illicit liquor in his rented house and in case raid is conducted huge quantity of liquor can be recovered. A raiding party was accordingly formed by the police officials associating PW-3 Sh. Bhagu Ram, Ward Punch Balak Ram and photographer Sh. Vinod Kumar (PW-4). During the search of the house of the Petitioner, a working still was found in his kitchen along with tin containing ''Lahan'' in the presence of the accused. The case property Ext. P-1 tin containing Lahan, Ext.P-2 Pipe, Ext.P-3 Patila, Ext.P-4 Stove and Ext.P-6 bottles containing liquor was sealed and have been sent for chemical examination.

On the facts of the case, the learned trial Court convicted the Petitioner for the offences, as charged. The Court sentenced him for imprisonment for a period of one year and fine of Rs. 5,000/-, in default of payment of fine to undergo simple imprisonment for a period of three months. This judgment has been affirmed by the learned appellate Court.

Learned Counsel appearing for the Petitioner has brought to my notice notification dated 22nd May, 2001 issued by the State Government under the provisions of the Punjab Excise Act as applicable to the State of Himachal Pradesh. The relevant provision reads:

61-A. Composition of certain offences-(1) Notwithstanding anything contained in Sub-section (1) of Section 61, any offence, whether committed before or after the commencement of the Punjab Excise (Himachal Pradesh) Amendment Act, 2001, relating to the imports, exports, transportation or possession up to 60 litres of Lahan or up to 18 bulk litres of liquor, may either before or after the institution of the prosecution, be compounded by the Judicial Magistrate of the Ist Class, for an amount which shall not be less than one thousand rupees but shall not exceed twenty five thousand rupees.

(2) Where an offence has been compounded under Sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence:

Provided that if a person commits an offence specified in Sub-section (1), for more than three times, the same shall not be compounded.

(3) When a case has been compounded under Sub-section (1), the Judicial Magistrate of the Ist Class may make such order as he thinks fit for the disposal of the case property.

Learned Counsel for the Petitioner submits that according to this notification, in case 60 litres of ''Lahan'' or 18 bulk litres of liquor is seized, the case may be compounded for an amount which shall not be less than Rupees one thousand and shall not exceeding rupees twenty five thousand.

Considering the facts and circumstances of the case I deem it fit proper to set aside the substantive sentence of imprisonment and to direct that the Petitioner shall pay fine of Rs. 10,000/- in all for the offences, as committed. This order is being passed keeping in view the fact that only 15 litres of ''Lahan'' has been seized.

Needless to say that the amount of fine already levied shall be deducted from the amount of Rs. 10,000/-. The balance amount of this fine shall be deposited in the Court of Sub Divisional Judicial Magistrate, Anni, District Kullu, H.P. within a period of two months from today. It is clarified that in case fine is not deposited, the Petitioner shall be liable to undergo and serve the sentence as imposed by the trial court. The revision petition is accordingly disposed of. There shall be no order as to costs. The learned Sub Divisional Magistrate, Anni shall ensure the compliance of this order.