Kundan Kumar Sinha @ Kundan Kumar Singh vs State Of Jharkhand

Ambuj Nath, J

Heard the Parties.

The petitioner has filed this application against the judgement dated 05.09.2009, passed by Sri Nalin Kumar, learned Additional Judicial Commissioner, F.T.C. No. VI, Ranchi in Cr. Appeal No. 78 of 2009, whereby and wherein the learned Additional Judicial Commissioner, F.T.C. No. VI, Ranchi upheld the judgement of conviction and modified the order of sentence passed by Sri Anuj Kumar, learned J.M.F.C., Ranchi dated 06.04.2009 passed in Excise Case No. 141 of 2003, holding the petitioner guilty of offence under section 47(a) of the Excise Act and thereby sentencing him to undergo R.I. for 2 years alongwith a fine of Rs. 5,000/- without default stipulation.

The learned appellate court reduced the period of custody to R.I. for 6 months alongwith a fine of Rs. 20,000/- and in default of payment of fine, the petitioner was further directed to undergo imprisonment for two months.

The case of the prosecution is that the Excise Inspector, Suresh Chandra Sinha on the basis of confidential information conducted a raid in the hotel of the petitioner Kundan Kumar Sinha @ Kundan Kumar Singh and a room situated behind it. On search, 768 pieces of 180 ml of branded wine bottles and another 168 pieces of 375 ml of branded wine bottles were recovered.

In order to prove its case the prosecution has adduced both oral and documentary evidence.

On the basis of the evidence available on the record both the learned trial court as well as the learned appellate court have come to a concurrent finding regarding the guilt of the petitioner.

It was submitted that the room from where the alleged liquors were seized was a tenanted premises and one Shankar Singh was lease holder. It was further submitted that the informant has admitted in his evidence that the petitioner had told him at the time of raid that the premises from where liquor was seized did not belong to this petitioner. It was finally submitted that the prosecution has not brought the report of chemical examination showing that the seized contraband was foreign liquor as claimed by the prosecution and Suresh Chandra Sinha P.W.3 has admitted this fact at paragraph 58 of his deposition.

From the perusal of the oral testimony of the prosecution witnesses, it appears that all the witnesses have corroborated each other on the point that huge quantity of English liquor were recovered from the room situated behind the hotel of this petitioner. Witnesses have also stated that the hotel of the petitioner was also raided but nothing was recovered from there.

Upendra Narayan Singh P.W.2 has admitted that though the keys of the raided premises was produced by the petitioner but he had informed the raiding party that the premise did not belong to him but it belonged to one Shankar Singh who was involved in trade of liquors was the tenant of that room.

The petitioner has also adduced defence evidence in support of its case. Sanod Kumar Singh D.W.1 has stated that the premises from where illegal liquor was recovered was a tenanted premises which was taken on lease by Shankar Singh. The lease deed and rent receipt books have also been adduced in evidence showing that the premises was leased to Shankar Singh.

In view of the aforesaid facts, it is apparent that the prosecution has not been able to prove its case against the petitioner beyond all reasonable doubt that the place of occurrence from where the bottles of liquor were seized belonged to this petitioner.

In the absence of any report of chemical examination, it cannot be said that the seized contrabands, so recovered, were liquor within the meaning of Section 47(a) of the Excise Act.

In view of the aforesaid facts; I am of the opinion that the prosecution has not been able to prove its case against the petitioner under section 47(a) of the Excise Act.

This Criminal Revision Application is allowed. The judgement of conviction and order of sentence passed by the learned court below and so modified by the learned appellate court is set aside.

Pending I.A., if any, also stands disposed of.