Mukesh vs State of M.P.

G.D. Saxena, J

This revision petition u/s 397/401 of the Code of Criminal Procedure 1973, preferred by the petitioner is directed against a judgment dated 18th September 2006 in Criminal Appeal No. 341/ 2006 passed by the Sessions Judge, Guna, confirming thereby the judgment dated 8th August 2006 in Criminal Case No. 167/2006 by the Chief judicial Magistrate Guna (M.P.), convicting the petitioner-accused for commission of offence punishable u/s 34 (2) of the M.P. Excise Act, 1915 and sentencing him to a term of one year''s simple imprisonment with a fine of Rs. 25,000/-(Rs. Twenty Five Thousand only) with default punishment of six months'' in the event of non-payment of fine. The facts, in brief, just for the decision of this revision are that on 10th February 2006 on receiving reliable information through informer that one person is selling an illicit liquor at Katra Mohalla, raid was arranged under the supervision of Har Narayan, Head Constable with Police Force of Police Station Raghogarh and in furtherance of their action, they found the accused petitioner carrying 55 liters of illegal liquor in two plastic cans. Accused was arrested on the spot and the said illegal liquor in two plastic containers were seized. Thereafter, the seized illegal material was sent for examination to R.R. Dubey, Sub Inspector, Excise Department at Raghogarh (Guna). After due examination, by him, the seized material was found country-made liquor. After investigation, the charge-sheet was filed against the accused before the court of Judicial Magistrate First Class, Raghogarh from where the proceedings along with Ms opinion were forwarded to the court of Chief Judicial Magistrate u/s 325 of Cr.P.C. The trial Magistrate after recording the prosecution and defence evidence passed the Judgment of conviction and sentence against the accused as mentioned above. Being aggrieved by the said Judgment of the trial court, an appeal was preferred by the accused before the Sessions Judge Guna. The appellate court by affirming the judgment of conviction and sentence passed by the trial Magistrate dismissed the appeal, hence, this revision.

The contention of the learned counsel appearing for the petitioner/ accused is that the impugned judgments passed by the trial Magistrate as well as appellate court both are not in accordance with the law and the facts of the case, hence, they deserve to be set aside. It is submitted that in this case, the persecution has utterly failed to prove the guilt against the accused beyond reasonable doubts. It is submitted that the seized liquor was not chemically examined by the recognized agencies and further the prosecution was not able to prove the capacity of the containers seized from the possession of the accused having a liquor. It is contended that the petitioner/accused after judgment of trial/appellate court had spent more then nine months in custody. Therefore, it is prayed that by allowing the revision petition the conviction and sentence recorded against the petitioner by the trial Magistrate and maintained by the learned Sessions Judge in appeal be set aside.

The learned Panel Lawyer for the State, on the other hand, opposed the prayer of the petitioner and supported the impugned judgment.

Heard the learned counsel appearing for the parties and also perused the record of the courts below and the law applicable to the present case.

The question for consideration in this case is that whether the courts below (i.e., trial court and the appellate court) overlooked the measurement of the illegal liquor and without chemical examination of the seized article, fell in error to convict the petitioner/accused?

On perusal of the statements of prosecution witnesses Narayan Bunkar (PW-1), Sonu (PW-5) Hari Narayan Sharma Head Constable of the Police Station Raghogarh (PW-6), it is clear that on receiving information, raid was arranged and when it proceeded to play its role, the accused was found on the spot standing with two plastic canes, having approximately 35 and 20 liters of country-made illegal liquor in each container. However, during their chief and cross examination, none of the witnesses had deposed about the capacity of the container in which the liquor was filled in and further no attempt was made by the prosecution either on the spot or at any later stage of investigation to get the seized liquor measured to have ascertained the fact that same was 55 liters or above 50 liters, though in the F.I.R. (Ex.P/7) it is mentioned that the liquor was approximately 55 liters. It is further noted that the containers, in which the illegal country-made liquor was kept were not produced before the trial court at the time of trial neither were they shown to the prosecution witnesses and nor were they exhibited.

The relevant provision of law under the Excise Act speaks in the manner below: -

Sec 34.-(1) Whoever, in contravention of any provisions of this Act or of any rule, notification or order make or issued there under or of any condition of a licence permit or pass granted under this Act,

(a) Manufactures transports, imports, collects, or possesses any intoxicants;

(b) save in the cases provided for in Section 38 sells any intoxicants; or shall subject to the provisions of sub section (2) 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 five hundred rupees but which may extend to five thousand rupees:

Provided that when any person is convicted under this section of any offence for second or subsequent time he shall be punishable for every such offence with imprisonment for a term which shall not be less than two months but which may extend to twenty four months and with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees.

(2) Notwithstanding anything contained in Sub Section (1), if a person is convicted for an offence covered by clause (a) Or clause (b) of sub section (1) of Sub Section (1) and the quality of the intoxicant being liquor found at the time or in the course of detection of the offence exceeds fifty liter, he shall be punishable with imprisonment for a term which shall not be less than one year but which ''may extend to three years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac Rupees:

Provided that when any person is convicted under this Section for an offence for second or subsequent time, he shall be punishable for every such offence with imprisonment for a term which shall not be less than two years but which may extend to five years and fine which shall not be less than fifty thousand rupees but may extend to two lac rupees.

To prove the guilt for commission of offence punishable u/s 34 (2) of the Act, the prosecution in case of recovery of illegal liquor in open container from the accused was bound to prove by some cogent material that the recovered illegal liquor exceeded 50 bulk litres. Hence upon consideration of the totality of the facts in the case, it has not been satisfactorily established that the objects recovered from the possession of the accused-petitioner were exceeding the prohibited strength. In other words, the prosecution by placing ocular evidence of prosecution witnesses utterly failed to show that the illegal liquor seized from the accused exceeded 50 bulk liters. Hence, the charge for commission of offence punishable u/s 34 (2) of the Act is not proved beyond reasonable doubt against the accused. Consequently, the revision is allowed and the judgments of the trial Magistrate and of Appellate Court are hereby set aside.