Varadharasu vs State

A. Ramamurthi, J.—The revision petitioner/accused has preferred the revision aggrieved against the judgment and conviction in CA. No. 50

of 1997 on the file of the learned Second Additional Sessions Judge, Pondicherry, dated 28.7.1998 confirming the judgment and conviction in

C.C. No. 22 of 1996 on the file of learned Chief Judicial Magistrate, Pondicherry dated 12.9.1997 convicting him to undergo simple imprisonment

for six months and to pay a fine of Rs. 10,000/- and in default to suffer simple imprisonment for three months.

The case in brief is as follows:

The Tahsildar cum Sales Officer, Excise Department, Pondicherry had a charge sheet against the revision petitioner alleging that on 2.2.1994 at

about 17.30 hours to 18.30 hours at Mannadipet Manalipet village on the northern side of the Sangaraparani near the coconut thope of one

Jayaraman, the revision petitioner was found in illicit possession of 22 barrels each containing 200 litres of rectified spirit all worth Rs. 2,20,000/-

without any valid licence or permit and committed an offence punishable u/s 33 of Pondicherry Excise Act. The Revenue Inspector, Kalivaradan

while working in the Excise Department received information that near the lands belonging to one Jayaraman situated at Manalipet village illicit

arrack has been stored in large quantities. On 2.2.1994, he conducted a surprise raid and at 5.45 p.m. he found the revision petitioner digging the

sand near the said land and it was found out that about 22 barrels of rectified spirit each barrel containing 200 litres were seized. They were buried

near the lands and on enquiry, it was revealed that the name of the person is Varadarajan and he was arrested and all the contrabands were seized

under a mahazar. Subsequently, a case was also registered against him in Crime No. 2 of 1994 u/s 33 of the Pondicherry Excise Act and the value

of the arrack is Rs. 2,20,000/-. The accused was caught redhanded while digging the earth under which the barrels were buried and the entire

things were seized under Ex.P.3. The signature of the accused was also taken in a mahazar. The samples taken from the barrels also were sent for

analysis and the analyst report also indicated that they are rectified spirit.

The learned Counsel for the revision petitioner contended that the Courts below ought to have seen that the prosecution is vitiated since the

investigating officer was also the complainant cum informant. There is an inordinate delay in registering the case. There is absolutely no independent

and reliable witnesses to support the prosecution version regarding the seizure. The Courts below ought to have held that the contraband was

found from a place which has nothing to do with the revision petitioner. The Courts below ought to have come to the conclusion that the

prosecution has not proved the case.

The learned Additional Public Prosecutor however stated that the Courts below were justified in convicting the revision petitioner. The property

was seized under cover of mahazar and the signature of the accused was also taken thereby showing that he was also present at the relevant point

of time. The property was also sent for analysis and opinion has been received to the effect that it is rectified spirit. The investigation has been done

by some other person and the charge sheet was also filed by him and hence the trial is also not vitiated.

P.W.3, Kalivaradhan was working as Revenue Inspector in the Excise Department. He received information that near the lands belonging to

Jayaraman, situated at Manalipet village, illicit spirit has been stored in large quantities On 2.2.1994, P.W.3 conducted surprise raid at about 5.45

p.m. and noticed one person digging the sand near the lands. On suspicion he searched and found 22 barrels of rectified spirit and each barrel

contained 200 litres. On enquiry, the person who was digging has also disclosed his name and he was also arrested and the contrabands were

seized under cover of mahazar.

The first contention put forward by the learned Counsel for the revision petitioner is that the investigating officer alone was the complainant in the

case and since the investigation has been done by him, the entire trial is vitiated. P.W.3 is the person who gave the complaint and on the basis of

which only the case was registered. It is seen from the charge sheet that the investigation has been done by some other officer. It is quite probable

that P.W.3 might have recorded the statement of some witnesses. But by this, one cannot come to the conclusion that the investigation is vitiated.

The charge sheet has been filed by some other officer viz., P.W.5 and in the circumstances, I am of the view that there is no basis in the contention

of the learned Counsel for the petitioner.

The learned Counsel for the petitioner relied upon a decision of this Court in Thalavoi v. State (1995 (1) Mad WN (Cri.) 47) where it is

observed that this practice has been condemned by the Supreme Court and also our High Court as the allegation of the Officer who registered the

F.I.R. will be simply supported by him if the same officer takes upon the case for investigation because he may not record the Statement against his

own version. Reliance was also placed by another decision of the Apex Court in Bhagwan Singh v. The State of Raj as than (1975 SCC (Cri.)

737) wherein it is observed that investigation by the complainant Head constable himself held improper. There is no dispute about the principle

given in these decisions, but the applicability of the same depends upon the facts and circumstances in each case. In the present case also P.W.3

has given evidence that there is material to show that the subsequent investigation was taken by some other agency and P.W.5 was the person who

laid the charge sheet in the case. Even assuming that the statement of some witnesses was recorded by P.W.3 subsequently P.W.5 would have

verified the same and based upon them only the charge sheet was laid.

The next contention raised by the learned Counsel for the revision petitioner is that there was inordinate delay in registering the case and there is

no independent and reliable witnesses to prove. There is absolutely no delay in registering the case. There is also no basis in the contention

regarding the absence of any independent witnesses. Ex.P.3 is the mahazar under which the contraband was seized. The signature of the accused is

also available. It is not taken under coercion and undue influence at a later point of time. From the fact that the signature of the accused is available

in the mahazar would go a long way to show that he was present at the time of the surprise raid. Furthermore, the samples taken from the barrels

were sent for chemical examination and the report under Ex.P.1 also indicated that it contains rectified spirit. The evidence of P.W.1 also

supported and substantiated the case of the prosecution. There was no necessity for P.W.3 and other persons to foist case against the revision

petitioner. P.W.4 is also a Revenue Officer and corroborates the testimony of P.W.3. Both the Courts below were justified in relying upon the

evidence of P.Ws. 3 and 4 and coming to the conclusion that the charge has been proved against the revision petitioner.

The next contention put forward by the learned Counsel for the revision petitioner is that the contraband was found in a place which has nothing

to do with the petitioner. According to the prosecution case the contraband was seized near the land belonging to one Jayaraman. In fact, the

witnesses have actually seen the revision petitioner digging the sand near the land and removing the contraband. He was arrested on the spot and

his signature was also taken in the mahazar. Simply because the land does not belong to the revision petitioner, the case of the prosecution is not

affected. Hence I am of the view that there is no force in the contention of the learned Counsel for the revision petitioner. The learned Counsel also

relied upon the following decisions:-

i) In re Pachiripalli Satyanarayana (A.I.R. 1953 Mad 534)

ii) Kaul Ahir Vs. Emperor

iii) Narayan Rao Vs. The State of Andhra Pradesh, and

iv) Radha Krishnan v. State of Uttar Pradesh (A.I.R. 1953 SC 822)

All these decisions have no application to the case on hand.

Section 33 of the Pondicherry Excise Act reads as follows:-

Whoever, without lawful authority has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported,

transported, manufactured, cultivated or collected or knowing the prescribed duty not to have been paid thereof, shall on conviction be punished

with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both.

The evidence adduced on the side of the prosecution clearly established that the revision petitioner has committed offence u/s 33 of the Act.

Both the Courts below have rightly appreciated the evidence and came to the right conclusion. There is no illegality or infirmity in the order and

hence no interference is called for. However, the learned Counsel for the revision petitioner contended that the punishment imposed is severe and

as such leniency can be shown. The petitioner is sentenced to suffer simple imprisonment for six months and to pay a fine of Rs. 10,000/-. The

learned Counsel stated that the petitioner is in custody for the last two months. Considering the fact that the petitioner is already in custody for a

sufficient period, interest of justice will be met if the period already undergone is held sufficient and the fine imposed can be confirmed.

For the reasons stated above, the revision is allowed in part and the conviction is confirmed, but the period already undergone is sufficient and

the fine amount of Rs. 10,000/-(Rupees ten thousand only) is confirmed. If the fine amount is already paid by the petitioner, he is ordered to be set

at liberty forthwith not required in any other cases.