Manoj Tiwari vs State of C.G.

Sunil Kumar Sinha, J.—This revision has been directed against the impugned judgment dated 07-5-2005 passed in Criminal Appeal No. 102/2005 by the 11th Addl. Sessions Judge, (F.T.C.) Raipur (C.G.) arising out of the judgment dated 31-3-2005 passed in Criminal Case No. 602-2005 by the C.J.M., Raipur, whereby the appeal preferred by the Appellant against the conviction and sentence awarded by the trial Court, u/s 34(1) and (2) of Excise Act, has been dismissed by the appellate Court.

The facts of the case are that on 26-2-2004, an information was received by Assistant Sub-Inspector Shri Ramesh Manjhi (P.W. 2), that some illicit liquor is being transported in an Auto Rickshaw bearing Regn. No. C.G.04 ZA 5580 from Gudhiyari to Teldhani Naka. On receipt of this information, he made contact with the other patrolling party and got them accompanied with him and ultimately the aforesaid Rickshaw was located near Teldhani Naka, Raipur. The Rickshaw was being driven by accused Pyarelal and present applicant/accused was sitting in it. When the vehicle was searched, it was found that there were 144 quarter bottles of Indian Made Goa English Liquor containing 180 Ml. in each bottle in Rickshaw. After the seizure, two notices were given vide Ex. P. 3. and P-4 to the accused persons for producing the documents in relation to ownership/legal transportation of the aforesaid liquor u/s 91 of Code of Criminal Procedure but the accused persons could not produce any document and made endorsement to this effect in the notice Ex. P. 3 and P-4 by their own hand-writing putting their signatures. The seizure of the aforesaid liquor was made vide Ex. P. 2 and the Auto Rickshaw was also seized vide Ex.P. 1. At the trial, two punch witnesses namely Rajendra Singh (P.W. 3) and Daulal (P.W. 5) turned hostile and had not supported the case of prosecution. The learned trial Judge, believing on the testimony of the Investigating officer, Ramesh Kumar Manjhi (P.W. 2), and further believing the testimony of another member of the patrolling party, Head Constable Radhe Shyam (P.W. 1), held the accused persons guilty of the offence punishable u/s 34(1) and (2) of the Excise Act and sentenced them to undergo R.I. for one year and to pay fine of Rs. 25,000/-, 25,000/- each, in default of payment of fine, to undergo additional R.I. for 9 months-9 months each.

Against the aforesaid judgment and order passed by the trial Court, the accused persons preferred an appeal before the Sessions Court but the Sessions Court dismissed their appeal and confirmed the conviction and sentence passed by the trial Court, It is against this judgment of the appellate Court, this revision has been filed by one of the accused persons namely Manoj Tiwari.

Referring to a decision rendered in the matter of Nandu @ Nandkishore v. State of M.P. 2002(2) C.Cr.J. 712 (M.P.), learned Counsel for the applicant argued that since both the witnesses of seizure have turned hostile and the version of the investigating officer is not supported by the other independent witnesses, therefore, the conviction and sentence awarded to the applicant is not proper. He relies on para 11 of the aforesaid judgment.

On the other hand, learned State Counsel argued that the conviction can be based on the sole testimony of the investigating officer, if the same is wholly reliable and dependable. He also argued that in the present case, the testimony of the investigating officer is fully corroborated by another member of the patrolling party namely Radhe Shyam (P.W. 1)

I have heard learned Counsel for the parties at length and have also perused the records of the two Courts below.

There is no doubt in the mind of this Court that if the evidence of the investigating officer is found to be trustworthy and dependable and nothing material has been brought to discredit his evidence in the cross examination or his evidence is otherwise not unreliable, the Criminal Court would be justified in convicting the accused on the sole testimony of the investigating officer. I am fortified in my views by a decision of the Supreme Court rendered in the matter of Lopchand Naruji Jat and Another Vs. State of Gujarat, . Normally in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the Courts seek corroboration as a matter of caution and not as a matter of a rule. Thus, it is only a rule of prudence, which makes the Court to seek corroboration from an independent source, in such cases while assessing the evidence of the police. But in cases where the Court is satisfied that the evidence of the police can be independently relied upon then in such cases, there is no prohibition in law that the same cannot be accepted without an independent corroboration. Please see Praveen Kumar Vs. State of Karnataka, . In the present case, nothing has been brought on record as to why the investigating officer should be disbelieved. A very short cross examination has been done in which nothing has come to cause shadow on the testimony of the investigating officer Shri Ramesh Kumar Manjhi (P.W. 2). On the contrary, his statement is fully corroborated by the Statement of Head Constable Radhe Shyam (P.W. 1), who says that when he was doing the patrolling duty with another party he was contacted by the investigating officer after receipt of the information about the transportation of illicit liquor and then only his party accompanied the investigating officer and all of them went to the spot and stopped the Auto Rickshaw and made search thereof leading to the seizure of the aforesaid liquor. Therefore, in the facts and circumstances of this case, I am not inclined to accept that since the version of the I.O. is not supported by the independent witnesses of seizure, his testimony should be thrown out and conviction based upon his testimony should be set aside. In the facts and circumstances of the case, the law cited by the learned Counsel for the applicant will not be applicable because in the aforesaid judgment, nothing has been said about the testimony of the I.O. That is to say as to whether his testimony was trustworthy or untrustworthy. The aforesaid judgment does not help the applicant and the same is distinguishable. It is also distinguishable on the point that in the present case the version of the investigating officer is corroborated by P.W. 1 Radhe Shyam.

Another point has been raised that all the bottles seized from the possession of the applicant was not sent for chemical examination, therefore, it cannot be said that the applicant was carrying illicit liquor to the tune of 25 bulk litres. P.W. 4 namely J.K. Arora has been examined as a witness who performed the test of liquor and submitted his report in this regard. In his report Ex.P. 12, he stated that 5 quarter bottles containing 180 ml. liquor in each were brought before him in sealed condition and he performed test by observation, by smell and by taste and he also performed the blue litmus test as well as the test through Hydrometer and aforesaid report Ex.P. 12 was submitted saying that the substance sent for examination was an Indian made foreign liquor whisky. The argument advanced is that the entire bottles were not sent for examination, therefore, it has not been established that the entire seized property was liquor. In this regard, if we look into the notices given by the Investigating Officer u/s 91 of Code of Criminal Procedure for production of the documents regarding the validity of the liquor (Ex. P-3 and P-4), it would appear that in the aforesaid notices, it has been mentioned that the articles seized were the quarter bottles of Indian Made Foreign Liquor and the documents of those liquor were demanded. In reply to the above notice u/s 91 Code of Criminal Procedure, the accused persons had written in their own hand writing that they were having no valid papers to transport the aforesaid liquor with them. This goes to show that the seized article was admitted to be the liquor by the accused persons before the Police Officer and the denial was only to the extent that they were having no legal papers regarding possession/transportation of the aforesaid liquor. Therefore, the arguments advanced that the prosecution could not establish that the entire bottles (including the bottles not sent for chemical examination) were containing liquor cannot be sustained.

Now the main question arises as to what should be the offence under which the applicant should be convicted. If we examine the contents of the charges framed against the applicant and the co-accused it would appear that the accused persons were charged for carrying 25 bulk litres of aforesaid liquor. The entire trial was conducted for illegal transportation of 25 bulk litres of liquor. The order sheet of the J.M.F.C., dated 18-3-2005 would also show that since the allegations were in relation to transportation of 25 bulk litres, therefore, on the basis of certain amendment, the Court of J.M.F.C. was having no jurisdiction and the matter was sent for trial to the C.J.M. The trial Court in the first part of its judgment has also mentioned about the quantity in bulk litres which is expressed as 25 bulk litres, but ultimately in the concluding para of judgment (Para 11) it has recorded a finding that the accused persons were found transporting more than 25 bulk litres of liquor and then only a conviction and sentence u/s 34(1) and (2) of the Excise Act has been awarded and for this a minimum punishment vide Sub-section (2) that is R.I. for one year and fine of Rs. 25,000/- has been awarded.

So far as holding the applicant guilty of the offence u/s 34 {substantially u/s 34(1)(a)} is concerned, the judgment is sustainable, but imposing the sentence as aforementioned with the aid of Sub-section (2) of Section 34 holding the quantity of liquor to be more than 25 bulk litres cannot be sustained as according to the judgment of the trial Court, the quantity of liquor transported was shown to be 25 bulk litres and the aforesaid punishment has been awarded as if the quantity was "exceeding" 25 bulk litres and the appellate Court also lost sight of this fact. Unless the quantity is proved to be "exceeding" 25 bulk litres, the aforesaid sentences holding the case of "exceeding" quantity of 25 bulk litres cannot be imposed.

The word ''exceeds'' engrafted by the legislature in Sub-section (2) of Section 34 of the Excise Act has got a great significance. The said word is a legislative command given by the legislature for imposing punishment in case of an offence punishable under Clause (a) or (b) of Sub-section (1) of Section 34 of the Excise Act when the case relates to the liquor, and is based upon the gravity of the offence which has been determined by the legislature on the basis of quantity of the liquor for which the offence is said to have been committed. The word "exceeds" has to be given an ordinary meaning and the same must be intended to be the quantity "more than" 25 bulk litres and the Courts are required to construe the meaning of word "exceeds" in its strict sense with reference to the scale of measurement of liquor in litres/bulk litres.

The conviction and sentence awarded to the applicant holding the liquor to be exceeding 25 bulk litres is set aside. Instead the applicant is convicted for illegally transporting 25 bulk litres of liquor (not exceeding 25 bulk litres) and his punishment is modified. He is convicted u/s 34(1)(a) of the Excise Act and is sentenced to the period already undergone (which comes about 8 months 24 days as stated by counsel for the applicant that he could not avail the facility of bail granted by this Court) and a fine of Rs. 5000/- in default of payment of fine of Rs. 5,000/- he will undergo R.I. for 1 month more. The conviction and sentence are modified to the extent indicated above.