Vijay Pal Singh And Others vs State Of Uttarakhand

Sharad Kumar Sharma, J

The revisionists are the convicts for the commission of an offence under Section 60 of the Excise Act, which as a consequence of the conduct of trial by way of Criminal Case No. 149 of 2009 'State vs. Vijay Pal Singh and Others' the learned Trial Court has ultimately found to be established by evidence on record. That as per the story of the prosecution it was that on receiving the information about a probable arrival of a Wagon R Car No. HR 51-V 1105, which was about to reach at the spot, from where they were shown to be arrested, i.e. at SIDCUL bend they saw a Wagon R coming from side of village Dharanaula, the police team had apprehended the car in which the revisionists were traveling and on police team asking them as to whether they are carrying any valid licence to transport the liquor, which was found in their vehicle, they were unable to show any valid licence issued by competent authority being possessed by them to carry 45 bottles of liquor, which was being found carried by them in two bags, and apart from it about 27 bottles of illicit liquor were also found to be carried in the rear part of the vehicle. When the police team has recovered the aforesaid liquor its samples were collected and after the collection of samples it was sent for its examination under Section 72 of the Excise Act.

Learned Trial Court conducted the Trial and had recorded the statements of as many as about six witnesses and also relied on the exhibits, which included the recovery memo. The exhibit No. 2, i.e. the information submitted to the police; the enquiry report, i.e. the exhibit 3; and the Naksha Nazri as exhibit No. 5; the Trial Court after providing an opportunity to the revisionists of recording their statements to establish their innocence under Section 313 of Cr.P.C. it was found and the prosecution story is also that when the revisionists were apprehended by the police team, traveling in the offending car carrying the illicit liquor, as per the statement recorded of one of the co-accused persons, i.e. Raju Tyagi, he had submitted that he was falsely implicated in the commission of the said offence because as per his story it was his case that when they were going to Kausani with other two persons, who were driving the car and were in the civilian dress and there they had not made aware or disclosed about carrying of illicit liquor to the revisionist no. 2, rather assured that they would be dropping them at Kausani, but according to the revisionists as evidenced in the statement under Section 313 of Cr.P.C. they were not made aware that the vehicle in question was carrying the illicit liquor.

As per the finding, which has been recorded by the learned Trial Court, it has held that looking to the quantity of illicit liquor, which was being carried by them it was beyond the permissible limit and apart from it, they were not carrying any valid licence issued by the competent authority permitting them to carry it in their vehicle. Hence, after the investigation, it was found that the revisionists were indulged in trade of the illicit liquor, which was found to be recovered from their custody in their vehicle in which they were carrying, i.e. Wagon R No. 51- V 1105.

It has also come in evidence on record that out of the four convict persons two of them were residents of outside the State. The revisionist no. 1 is shown to be the resident of Haryana and revisionist no. 2 is shown to be the resident of Meerut. It has further come on record that four bags, which were recovered from the vehicle totalling to about total 144 bottles of liquor were recovered from them and since it was established by the evidence on record and particularly from the documents, which were placed as an exhibit and also as apparent from the statement recorded under Section 313 of Cr.P.C., also that the revisionists were unable to establish that they were innocent in commission of the offence under Section 60 of Excise Act as it was apparently shown that they were involved in carrying the illicit liquor without their being any valid permission with them.

Thus, the police party exercising their powers under Section 50 to be read with Section 53 of the Excise Act, which grants them ample of power to search the persons, who are involved in the trade of illicit transportation of the liquor, and thus they have exercised the powers vested with them under law on getting an information that the vehicle was carrying the liquor without a valid permission and, hence, the learned Trial Court had convicted the revisionists to undergo a sentence of six months of simple imprisonment and a fine of Rs. 5,000/- has been imposed on each of the convict revisionists.

The learned Trial Court while considering the statement particularly the statement of PW3, who in his cross-examination has submitted that as far as the car involved in the commission of an offence and the convicts who were apprehended by the police along with the illicit liquor, he submitted that the liquor was found in the joint possession of all the revisionists and further it was recorded in the statement of PW4, who in his cross-examination has admitted that the liquor, which was found in their possession, was bearing the labels of the liquor having been manufactured at Haryana.

Being aggrieved against the judgment of conviction, the revisionists have preferred a Criminal Appeal being Criminal Appeal No. 5 of 2011 'Vijay Pal Singh and Others vs. State of Uttarakhand', and the Appellate Court too after considering the statement of the witnesses, who has recorded their statement before the court below, had found that as per the evidence on record since they were carrying the illicit liquor without any valid permission they were involved in the commission of the offence under Section 60 of the Excise Act, which apparently stood established against them. The Appellate Court while considering the statement of A.S.I. Amar Chand Sharma, who in his examination-in-chief as PW1 had submitted that when he was posted at SIDCUL bend, the particular place where the revisionists were apprehended on 10.10.2006 he has submitted that the recovery of the illicit liquor was proved to have been made from the custody of the revisionists as would be apparent from the witnesses, who had recorded their statement at the time when the vehicle was apprehended and the revisionists were being searched by the police team with regard to the liquor, which they were carrying in their vehicle.

It has also come on record that after preparing the fard baramdagi, he has submitted that apart from other members of the raiding team, he too has signed the fard baramdagi, which has fortified the fact that the aforesaid recovery of illicit liquor was made from the custody of the present revisionist as would be apparent from exhibit 1 and exhibit 2. The statement of PW1, i.e. S.I. Amar Chand Sharma, was also supported by the statement of S.S.I. Bahadur Singh Pangti, i.e. PW2, who too in his examination-in-chief has fortified the aforesaid story as narrated by PW1 and in view of the statements of the witnesses of the prosecution recorded before the court below it has been established beyond doubt that the revisionists were involved in carrying the illicit liquor without there being any valid permission or licence with them and it was also established by the statement recorded by the witnesses as well as the documentary evidences, i.e. exhibits, which were placed on record with regards to the fard baramdagi that the revisionist was indulged in commission of the offence under Section 60 of the Act. Hence, they were rightly convicted by both the courts below for the commission of the offences under Section 60 of the Act.

Even if the story of revisionist is taken into consideration that they were going to Kausani and they have been wrongly trapped by police is not proved by them, rather the sample of liquor which was collected from them was send to Laboratory for its test and a report being Exhibit No. ka4, proved that they possessed the illicit liquor.

On scrutiny of Charge-sheet exhibit ka7, the liquor was proved to have recovered from the joint possession of the revisionist, and liquor which was found to be recovered was of the brand name as Bombay Goa Malt Whisky. Even the sample collected to be send for its analyst test was duly signed by the members of police team and the revisionist and copy of the receipt was also given to the revisionist which is proved from exhibit ka 1.

What is painful to observe here is that when the revision was taken up unfortunately despite of giving ample opportunity to the learned counsel for the revisionists, he was not able to assist the court which he was otherwise suppose to perform his duty as a counsel and, hence, in the absence of genuine assistance extended by the learned counsel for the revisionist, this court has proceeded to adjudicate the revision after hearing the Government Advocate, who has assisted the court and supported the order of conviction.

In that view of the matter, the order of conviction as rendered by both the courts below that the offence which the revisionists were said to have been indulged in commission of the offence under Section 60 of the Act has been proved beyond doubt and had validly held to be established against them.

Consequently, the revision lacks merit and the same is, accordingly, dismissed.