State vs Waryam Chand & Ors.

This appeal is directed against the order of reversal passed by the learned Sessions Judge, Jammu, dated 2531976, whereby the order of

conviction and sentence recorded against the respondents ""hereinafter referred to as the accused"", by the Special Excise Magistrate, Jammu, by his

order dated 5 111975 has been set aside and by virtue of which order, the accused were convicted for an offence under Section 48 Excise Act

and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 800/ each, in default of payment of fine, each of them had

to undergo further rigorous imprisonment of five months.

Aggrieved of the said order of acquittal, the State has come up in appeal on the ground that the order of acquittal passed by the appellate court

was against law and facts of the case. It was contended that after the accused pleaded guilty before the trial Magistrate and were convicted on

such a plea, no appeal shall lie against such an order, unless the order passed by the trial Magistrate was erroneous and legally wrong.

Briefly, the prosecution story states that on 18.10.1975 the concerned police on receiving an information that the illicit liquor was being

manufactured by the accused, conducted a raid and seized the working still, including one drum full of lahan and one tin containing the illicit liquor

from their possession. A little quantity of the alleged illicit liquor was sent for chemical examination and the rest was destroyed. On completion of

the investigation, a challan was filed before the Special Excise Mobile Magistrate, Jammu, on 5111975 and on the confession of the accused, were

convicted and sentenced as mentioned above.

The appellate court acquitted them on the ground that the prosecution could not conclusively establish that the consents of the liquor seized from

the possession of the accused were illicit and the said liquor was chemically examined, to establish that it was illicit; therefore, the accused could

not be convicted on the basis of their confession. It was also; observed that, although, the accused confessed their guilt, but an admission of fact

howsoever incriminating it would be by itself, is not enough to prove the guilt of the crime in question, although, it might to together with the other

evidence on record lead to the conclusion of the guilt of the accused.

Heard learned A. A. G. on behalf of the prosecution and Mr. R. N. Sharma for the accused. I had the advantage to go through the record on the

trial court file and, it is found that the accused were charged by the trial Magistrate on 5111975 and the contents of the charge sheet were

readover to them and, they, of their own free will and consent admitted the charge and, even then, the trial Magistrate recorded the statement of

the Investigating Officer in support of the prosecution case and, on his evidence, the charge was fully established against the accused. Their

statements U/S 342 Cr. P. C. were recorded and they again pleaded guilty and did not opt to lead any evidence in defense, to say that they were

innocent and no illicit liquor was seized from them. Although, the raid was conducted by the police on 18101975 and the illicit liquor was seized

from their possession on that date, but the challan was filed against them in the trial court on 5111975 From 21101975, they were on bail and they

got enough time to consider and consult some lawyer to see whether they should plead guilty or not?

Section 412 of the code of Criminal Procedure, 1989, envisages that no appeal shall lie against an order of conviction to have been passed by the

High Court, a court of Sessions or Judicial Magistrate of the First Class, after the accused pleaded guilty before that court and the appeal shill lie

only if the legality of the sentence is challenged. It is established beyond any reasonable shadow of doubt that in the present case the accused

confessed the guilt of their own free will and consent and they were not under any inducement or motivation, on the basis of which, they pleaded

guilty and were convicted. The accused were fully conscious of the fact that a working still, a barrel of lahan and a tin containing illicit liquor were

seized from them and, in case, they pleaded guilty, they would positively be convicted and sentenced. The learned Sessions Judge was not

competent to hear the appeal against the said order of the trial Magistrate, because the same was barred by the previsions of Section 412 of the

Code of Criminal Procedure, for the conviction of the accused was recorded on their admission as pleaded by them before the trial Magistrate.

After they pleaded guilty to the charge and the statement of the Investigating Officer was recorded and their statements under section 342 Code of

Criminal Procedure were recorded, the trial Court was satisfied that an offence U/S 48 Excise Act was established against them and, therefore,

convicted and sentenced them under the said provision of Excise Act. Once the Magistrate was satisfied that the accused were found in possession

of a tin of illicit liquor, a working the illicit liquor is manufactured was recovered from the possession of the accused, therefore, it was imperative

upon the Magistrate to impose a punishment of not less than six months imprisonment and a fine of Rs.200/ upon each of the accused Instead, the

Magistrate in violation of such a mandatory provision of law. As envisage] under section 48 of Excise Act, sentenced each of the accused to an

imprisonment till rising of the Court and to pay a fine of Rs.800/ in default of which, each of them had to undergo five months rigorous

imprisonment.

The accused, who were beneficiaries of such an order to their disadvantage, preferred an appeal before the learned Sessions Judge, Jammu, who

reversed the order and provided a change to the prosection to come up by way of an acquittal appeal before this Court. No ground has been put

forth by the accused, on the basis of which, it can scantly be held that the order of conviction passed by the trial court was, in any manner,

erroneous and against the provisions of law. The conviction of the accused was recorded on their bonafide admission of guilt and after the

prosecution evidence was recorded and their statements under section 342 Cr. P. C. were recorded, wherein they again pleaded guilty to the

charge.

I fail to understood as to how a different opinion has been formed by the learned appellate court to say that even if, the accused pleaded guilty,

they could not be convicted; unless the prosecution had proved that' the liquor seized from their possession was illicit. The learned Sessions Judge

has forgotten the fact that a sample of the said liquor was sent to a Public Analyst for scientific analysis and report, but, as the accused admitted the

guilt, therefore, there was no need to call for such a report to see as to whether the liquor seized was illicit or not? The accused did not whisper

against the fact that the illicit liquor, lahan and the working still were seized from their possession and that they were innocent. Once a big barrel of

lahan, from which the illicit liquor could be manufactured and also a tin of illicit liquor and a working still were seized from 'he possession of the

accused and they pleaded guilty to that and the same was established on the evidence of Investigation Officer as well, the learned Magistrate (Trial

court) was correct in convicting them under Section 48 of Excise Act. However, he has fallen in legal error in not punishing them adequately, for in

the proved facts of the case, he could not sentence them to less than six months imprisonment and a fine of Rs.200/ each.

Hence, so far as the order of conviction recorded by the trial Magistrate against the accused under Section 48 Excise Act is concerned, it is

upheld, but the same with regard to the imposition of the sentence upon the accused by him, is modified to the extent that each of them shall

undergo six months rigorous imprisonment and pay a fine of Rupees 200/ each, in default of which, they shall further undergo one/month's rigorous

imprisonment each. However, the period of sentence already undergone by them shall be deducted from the period of sentence, as imposed upon

them above.

Accordingly, in view of the above discussion, this appeal is accepted and the order of acquittal passed by the learned Sessions Judge, Jammu, is

set aside. The files be returned to the courts below. The bail bonds of the respondents/accused are cancelled. They shall surrender themselves

before the Deputy Registrar of the High Court, who shall issue the warrants and send them to Central Jail, Jammu, for undergoing the sentences.

The appeal file be consigned to records.