Shailendra Rai vs State of U.P. and Others

Ranjana Pandya, J.—This criminal revision has been preferred against the order dated 19.4.2014 passed in S.T. No. 386 of 2013, State v. Shailendra Rai alias Yashwant Rai and another, under Sections 60, 62, 63 Excise Act and under Sections 272, 273, 420, 467, 468 and 471, I.P.C. P.S., Kotwali, District Jhansi rejecting the discharge application of the revisionist. Brief facts are that the counsel for the revisionist was heard on charge and, accordingly, the charges under Sections 60, 62, 63, 72 of the Excise Act and charges under Sections 272, 273, 420, 467, 468 and 471, I.P.C. were framed against the accused. It has been argued on behalf of the revisionist that according to the Forensic Lab Report the percentage of alcohol in the sample was found 48.2, 48.5, thus, the charges cannot be levied against the accused. It is further argued that the accused was not heard before framing of the charge. There is no evidence under Sections 467 and 468, I.P.C. against the accused and, as such, he is liable to be discharged but the learned lower court has wrongly rejected his application.

I have heard learned counsel for the revisionist, learned A.G.A. and perused the material on record.

As a broad proposition, the interference may be justified (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; (d) where the material evidence of the parties has not been considered; and (e) where the judicial discretion is exercised arbitrarily or perversely.

In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision petition. Hon''ble Supreme Court in State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri, , has held that the High Court while hearing revisions does not work as an appellate court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done.

The Hon''ble Apex Court in Jagannath Choudhary and Others Vs. Ramayan Singh and Another, , has held that revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error or point of law and consequently, there has been a flagrant miscarriage of justice.

A perusal of the judgment of the lower court shows that the trial court has held that when the charges were being framed, the counsel for the accused was present and all the accused persons were heard on framing of the charge. The learned lower court has mentioned that the Excise Inspector has filed his report (paper No. 16A) showing that O.P. word means over proof which is used to measure the alcohol. In the report of Shailendra Rai, the quantity of Ethyle Alcohol was found to be 48.2. But, prima facie it is proved that from all the accused, drums of O.P. were seized from the vehicles in which they were travelling. It has also been alleged that the accused mixed Urea in the O.P. to increase its intensity. Thus, the accused Shailendra Rai could not have been discharged from the charge under Sections 272 and 273, I.P.C.

From possession of all the accused, the Urea was found to be positive and the accused Shailendra Rai was also found involved in selling illicit liquor. The accused used to mix Urea in liquor to increase its intensity, which is harmful for the human beings. The car bearing No. U.P. 93E 4844 was seized from the possession of Shailendra Rai. According to the report of the A.R.T.O., it belongs to Sanjiv Agrawal and it appears that the accused had changed the numbers of their cars, and, thus, this amounts to be, prima facie, an offence under Sections 463 and 29, I.P.C.

The Hon''ble Apex Court in Santosh Kumar Yadav and others v. State of U.P. and another, 2011 (72) ACC 770 : 2011 (2) ACR 1805, has held that if there are ingredients of offence against the accused, charges should be framed. The Hon''ble Apex Court in P. Vijayan Vs. State of Kerala and Another, , has held that whether the materials at the hands of the prosecution are sufficient or not, are matters for trial. At the stage of charge, it cannot be claimed that there is no sufficient ground to proceed against the accused and discharge is the only remedy. Whether the trial would end in conviction or acquittal, is absolutely immaterial. Thus, the impugned order does not suffer from any irregularity, illegality or impropriety. Accordingly, the criminal revision is dismissed.