Chimman Lal vs State of M.P. & Others

This Criminal Revision under Section 397 / 401 of the Code of Criminal Procedure, 1973, hereinafter referred to "the Code", has been filed by the petitioner against the Judgment dated 11.01.2002 passed in Criminal Appeal No.180/2001 by learned 2 nd Additional Sessions Judge, Burhanpur, District Khandwa, arising out of judgment of conviction and sentence passed by Judicial Magistrate First Class, Burhanpur, District Khandwa dated 18.10.2001, in Criminal Case No. 169/1999, whereby the petitioner was convicted under Section 34(A) of the M.P. Excise Act and sentenced him to undergo rigorous imprisonment for 1 year and fine of Rs.500/-, with default stipulation.

The case of the prosecution in nutshell is that on 25.05.1999, the Officials of the M.P. Excise Department searched the house of the petitioner and seized 83 boxes of whiskey quarters.

Learned trial Court framed charges punishable under Section 34(A) of M.P. Excise Act against the present petitioner, who abjured the guilt, therefore he was put to trial.

Learned trial Court found the petitioner guilty for the offence punishable under Section 34(A) of M.P. Excise Act and convicted and sentenced as aforesaid, against which, the appeal has been preferred.

Learned Appellate Court affirmed the conviction and sentence awarded

by learned trial Court, hence, this revision.

Learned counsel for the petitioner submits that the impugned judgments of conviction and sentence passed by learned Courts below are contrary to facts and circumstances of the case and are liable to be set aside. There are lots of contradictions and omissions in the statements of the prosecution witnesses, hence, he prays that this revision be allowed and the petitioner be acquitted in respect of the offence punishable under Section 34(A) of M.P. Excise Act. He further submits that independent witness Imran (PW-3) has not supported the case of prosecution and since the independent witness has not supported the case of prosecution, the statement of PW/1 S.N. Ali cannot be relied upon. It is further submitted that no liquor has been seized from the possession of the petitioner. Only seizure of liquor from the house of the petitioner does not indicate that the petitioner was in possession of the said liquor. There are no criminal antecedents

of the petitioner.

Per contra, learned Panel Lawyer appearing for respondent/State has submitted that after due appreciation of prosecution evidence, the learned Courts below have found the offence proved against the petitioner, hence no interference is required to be made in this revision.

Having heard learned Panel Lawyer for the respondent/State at length, gone through the impugned judgments of learned Courts below and statements of prosecution witnesses, I am of the view that no error has been committed by learned Courts below in recording the guilty of the petitioner as mentioned hereinafter and in convicting him for offence punishable under Section 34(A) of M.P. Excise Act and sentenced to undergo rigorous imprisonment for 1 year and fine of Rs.500/- with default stipulation.

Learned counsel for the petitioner submits that prosecution has examined three witnesses namely, Excise Sub-Inspector S.N. Ali (PW- 1), Excise Constable Mohd. Sadik (PW-2) and one independent witness Imran Beg (PW-3). No doubt, S.N. Ali (PW-1) and Mohd. Sadik (PW- 2), who are interested witnesses and of Excise Department have supported the case of prosecution and stated that the said liquors had been seized from the residence and possession of the petitioner, but this fact has not been supported by independent witness Imran Beg (PW-3) and in these circumstances, the statement of Excise Sub- Inspector S.N. Ali (PW-1) or Excise Constable Mohd. Sadik (PW-2) cannot be treated as reliable part of the evidence. No doubt, Imran Beg (PW-3) has stated that he does not know the incident. Said liquor had not been seized before him. Petitioner had also not been arrested before him. He has been declared hostile and cross-examined by ADPO at length but nothing has come on record which could support the case of prosecution. In this way, independent witness Imran Beg (PW-3) has not supported the case of prosecution regarding seizure of said liquor.

However, it is settled principle of law that even though the independent witnesses in such type of cases for one reason or the other do not support the prosecution case, that cannot be an only ground to discard the prosecution case in toto. On the other hand, if the statements of the Investigating Officer relating to search and seizure are found to be cogent, reliable and trustworthy, the same can be acted upon to adjudicate the guilt of the accused. The Court will have to appreciate the relevant evidence in light of other evidence produced before the Court and determine whether the evidence of Investigating Officer is believable, after taking due care and caution while evaluating his evidence. From perusal of statement of Investigating Officer, which is supported by other witness, it reflects that his statement is not suffering from any such contradictions on the basis of which it can be said that his statement is not believable.

Therefore, the conviction of the petitioner is hereby maintained.

Now the question arises that as to how a balance should be struck and maintained in regard to the sentence ?

It is also to be noted that the date of incident is 25.05.1999.

M.P. Excise Act, 1915 has been amended by M.P. Act 22 of 2000 w.e.f.

04.08.2000. By this amendment, Sub-sections (2), (3) and (4) of Section 34 of the Act have been substituted. Since date of incident of this case is prior to date of enforcement of amendment i.e., 04.08.2000, thus provisions of Section 34(2)(3)(4) are not applicable in the case in hand. As per Section 34 of the Act, before above amendment, offences under Section 34 of the Act shall 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 Rs.200/-, but which may extend to Rs.2,000/-. Thus, for the offence punishable under Section 34 of the Act, no minimum sentence was prescribed before the amendment of 22 of 2000. Minimum fine is prescribed Rs.200/-. As stated above, petitioner has been convicted and sentenced to undergo RI for one year and fine of Rs.500/-, which has already been deposited.

It is apparent from the perusal of the record that 55-56 years old petitioner has been facing this criminal trial for about 18 years and fine amount has already been deposited.

It is also apparent from the record that in compliance of impugned judgment dated 11.01.2002 passed by the Appellate Court, the petitioner was brought under custody and after 10 days vide order dated 21.01.2002, his sentence period was temporarily suspended by this Court.

In this view of the matter, no fruitful purpose is going to be served by again sending petitioner to the jail, therefore, it would be in the interest of justice if the jail sentence of the petitioner is reduced to the period already undergone by him.

In the result upholding the judgments of conviction recorded by learned Courts below, I reduce the sentence awarded to the petitioner to the sentence already undergone by him. This revision, to that extent, is allowed and the impugned judgment is modified.

A copy of this order be sent to learned Courts below with the record.