NIMESHKUMAR KIRITLAL HAJARIWALA vs STATE OF GUJARAT

Heard learned advocate Mr.Chirag B. Patel with learned advocate Mr.B.S. Patel, learned advocate for the applicant and Mr. Manan Mehta,

learned APP for the respondent - State of Gujarat. Perused the record.

It is unfortunate that original Record and Proceedings of trial court was not called for in the year 2002 while admitting the appeal when revision

is against the order of conviction and, therefore, only in the year 2012, it was pointed out to the court that Record and Proceedings is not called

for. But, thereafter, even till 19.1.2017, there was no concrete steps taken by anyone to confirm the availability of Record and Proceedings.

Thereupon, by communication dated 8.2.2017, the Sessions Court, Bharuch has conveyed this Court that Record and Proceedings of criminal

case No.1092/1997 has already been destroyed during summer vacation of May - June, 2012 as per manual and, therefore, now oral and

documentary evidence are not available. Similarly, Record and Proceedings of criminal appeal No.13/2001 was also not available.

It is undisputed fact that petitioner has been convicted under section 70 of Bombay Prohibition Act in criminal case No.1092/1997 by the

learned Judicial Magistrate First Class, Ankleshwar. The prosecution case was to the effect that at the time of raid, black jaggery was found in

possession of the petitioner which is not edible and sample was taken and forwarded for analysis wherein it was found that such jaggery was to be

used for manufacturing of country made liquor. Therefore, after trial the learned JMFC has awarded sentence of simple imprisonment for period of

six months and fine of Rs.1,000/and order to destroy the rotten jaggery which was confiscated.

Being aggrieved by such judgment of conviction, the petitioner herein has preferred criminal appeal No.13/2001. However, by its judgment and

order dated 31.7.2002, the learned Additional Sessions Judge, Bharuch has dismissed such appeal against order of detention and, thereby

confirmed order passed by the learned JMFC, Ankleshwar and petitioner was taken into judicial custody.

Thereupon, when petitioner has preferred this revision. By order dated 2.8.2002 while admitting the revision, this Court has released the

petitioner on bail on furnishing bail bond of Rs.2,000/only. Till then, petitioner is on bail who was otherwise also on bail pending trial.

Now, therefore, what is available before this Court is only two judgments both; by the trial Court and Appellate Court which confirms the

conviction of the petitioner. However, the contention of the petitioner which was his defence before both the Courts below is to the effect that he is

dealing with grocery including jaggery and rotting of jaggery is normal phenomenon and, therefore, in absence of specific evidence that rotten

jaggery was stored for manufacturing country liquor, the conviction is improper. It is also submitted that the order passed by the trial court is based

upon presumption and conjectures and that positive report of the laboratory is only because of the reason that sample was forwarded to it after a

long delay of 36 days and, thereafter also, it was analyzed after couple of weeks and, therefore, it cannot be said that what is found in the premises

of the petitioner was rotten jaggery to manufacture liquor. It is also submitted that sample was improperly collected and it cannot be said that it is a

sample collected from the goods in question and, therefore, reliance cannot be placed on the report of the analyst. It is also submitted that when

petitioner has prayed for the possession of Mudamal, though other witnesses have not supported the case of prosecution, the trial court has

believed that when Mudamal is sought for by the petitioner, he must have committed the offence. However, such presumption is not permissible in

the eyes of law.

However, in absence of Record and Proceedings and other material, it would not be possible to ascertain any of such point raised by the

petitioner. But one thing is evident from record that the judgment by the trial court is suffering from lack of proper reasoning, inasmuch as, more

stress was placed on the fact that petitioner has prayed for Mudamal articles, more particularly, when report of Analyst needs to be properly

scrutinized. Similarly, the appellate court has also in summary manner disposed of the appeal without discussing total evidence on record and

committed the same mistake which was committed by the trial Court. Therefore, there is reason to interfere with order of conviction though it is

concurrent.

In view of above facts and circumstances, considering the decisions which confirm that when Record and Proceedings is not available initially,

court should have taken steps to reconstruct the Record and Proceedings but in the present case when there is no chance of reconstruction of

Record and Proceedings, there cannot be fresh trial of a case of the year 1997, it would be appropriate to modify the impugned order so as to

confirm the order of conviction but by reducing the sentence whereby the imprisonment part needs to be quashed and set aside confirming the

sentence by imposing fine as per impugned judgment.

It is pertinent to refer the recent judgment delivered by this Court between Parvez Mohammed Iqbal Kazi v. State of Gujarat in Criminal

Revision Application No.370/2017 dated 19.12.2017.

In view of above facts and circumstance, this revision is partly allowed whereby the impugned order dated 13.7.2001 in criminal case

No.1092/1997 by the learned Judicial Magistrate First Class, Ankleshwar and dated 31.7.2002 in criminal appeal No.13/2001 by the learned

Additional Sessions Judge, Bharuch are hereby modified so as to confirm that though order of conviction is upheld, order of sentence is modified

restricting to sentence the petitioner by imposing the fine as per impugned order only and, thereby, impugned orders sentencing the petitioner for

six months simple imprisonment for committing offences under Section 70 of the Act is hereby quashed and set aside. Bail bond stands cancelled.

Record and Proceedings be sent back to the concerned Court.

This Application is allowed in above terms. Rule is made absolute to the aforesaid extent. Direct Service is permitted.