Monu @ Sunil vs State Of Madhya Pradesh

The applicant has filed the present revision petition under Section 397 r/w 401 of Cr.P.C. against the judgment passed by CJM, Dhar dated 04.01.2017 in RCT No.05/2017 whereby the learned CJM has convicted the petitioners under Section 34(1)(a) and 34(2) of M.P. Excise Act and sentenced them 1-1 years R.I. With fine of Rs.25,000/- each with default stipulations.

The aforesaid judgment has been affirmed by Special and Additional Sessions Judge, Dhar in CRA no.94/2017 vide judgment dated 08.07.2019.

As per the prosecution story, on 11.11.2016, during patrolling, a discreet information was received and in presence of the Panch witnesses Basant and Prashant, the house of the applicants situated in Choukse Mohalla, Peethampur was searched and during the search, 368 quarters of liquor were found in 8 boxes. The appellant no.1 Monu was arrested on the spot but the applicant No.2 Asha Bai has managed to fled away from the spot. She was finally arrested on 27.12.2016. Both the accused pleaded not guilty and prayed for trial. In support of the prosecution, R.S. Roy PW-1 (Assistant Excise Officer) was examined, who supported the case of the prosecution. The prosecution examined two Panch witnesses mainly Prashant PW-2 and Bashant PW-3, they turned hostile. The prosecution further examined Head Constable Hari Singh PW-4. The appellants have not examine any witness in support of their defense. After appreciating the evidence came on record vide judgment dated 04.01.2017, both the appellants have been convicted and sentenced as mentioned above.

Being aggrieved by the aforesaid, conviction, they preferred an appeal that too has been dismissed vide judgment dated 08.07.2019 by Special and Additional Sessions Judge, District Dhar. Hence, the present revision before this Court.

Shri P.K. Saxena, learned Senior counsel for the petitioner submitted that both the applicants have been falsely implicated in the case. The prosecution has failed to prove the recovery of liquor from their conscious possession of applicants. The house from which the recovery was made consists 40-50 rooms and there are so many occupants in it. Therefore, it can not be said that the liquor was recovered from the house belonging to the applicants. He further submits that the seized liquor produced in the Court was not kept properly in the Malkhana. The Seals were found open, therefore, the recovery of 66.24 bulk liters has not been proved. Hence, the applicants are entitled for acquittal.

Per contra, learned Dy. Advocate General has argued in support of the judgment of conviction and sentence and prayed for dismissal of the revision petition.

The prosecution examined Shri R.S. Roy PW-1 (Assistant Excise Officer). According to him, he received the discreet information during patrolling and immediately search was made in the house belonging to the applicants and 368 quarters of plain liquor were found in 8 boxes. In the lab test, alcohol contents were found 50.5. thereafter, he sent the letter to the Municipal Council, Peethampur Ex.P/10 confirming the ownership of the present applicants. Vide Ex.P.11, the Council has confirmed that the house is recorded in the name of applicant No.2 Ashabai. He has specifically stated that he was not having any previous enmity with the applicant. Therefore, there was no question of false implication. At the time of search and seizure, PW-4 was with him and who has also supported the case of the prosecution. Therefore, it makes no difference even if the Panch witnesses have turned hostile. However, PW2 and PW-3 have admitted that they met PW-1 near about 6:00 PM on the date of incident and he told them that he is going to recover liquor. He has also admitted his signature over Ex.P/1 to P/4 and Ex.P/9. Therefore, to that extent that evidence of hostile witnesses are admissible. Both the Courts below have duly considered the material available on record. The liquor was found in the possession of the applicants. Therefore is no presumption of commission of offence under Section 43 of the M.P. Excise Act. Therefore, I do not find any ground to interfere with the findings of both the Court Below. Even otherwise, the interference of the High Court in the revision filed under Section \397 of the Cr.P.C. is very limited.

The conviction cannot be said to be bad in law for want of non-examination of independent witnesses. He has been awarded minimum sentence by the Courts below hence, there is no scope of reduction. In absence of any material for interference with the judgement no purpose would be served by admitting the revision and suspending the sentence.

The scope of interference by the High Court in Cr. Revision filed u/s. 397 read with Section 401 is very limited. The High Court cannot interfere with the order of conviction based on the record unless it is perverse or based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. In the case of Kishal Rao V/s. Shankargouda : (2018) 8 SCC 165, the apex Court has held as under :

"10. The trial court after considering the evidence on record has returned the finding that the cheque was issued by the accused which contained his signatures. Although, the complainant led oral as well as documentary evidence to prove his case, no evidence was led by the accused to rebut the presumption regarding existence of debt or liability of the accused.

This Court has time and again examined the scope of Section 397/401 Cr.P.C. and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala vs. Puttumanaillath Jathavedan Namboodiri, 1999 (2) SCC 452, while considering the scope of the revisional jurisdiction of the High Court this Court has laid down the following:

"5......In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence....."

Another judgment which has also been referred to and relied by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in paragraph 14:

"14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction."

In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis."

In view of the above, the revision petition stands dismissed.