State Of Madhya Pradesh vs Leelabai

Submissions were made by the learned Public Prosecutor for the applicant on the application filed under Section 378(3) of Cr.P.C. seeking leave to appeal, which has been filed against the judgement of acquittal pronounced on 25.04.2017 passed by the Chief Judicial Magistrate, Dhar in Criminal Case No.59/2017, whereby the non-applicant was acquitted from the charges framed under Section 34(1) (a)/(2) of the M. P. Excise Act.

As per the prosecution story, pursuant to information received by the Excise Inspector Kamal Kumar Vishwakarma (PW-3) on 16.03.2010, a team comprising of members of Excise Department, Manawar raided the premises of the non-applicant Leelabai. A drum and a can containing hand made country liquor was seized from the premises and in all 60 bulk litres of country liquor was seized which was subjected to tests and after investigation, charge-sheet was filed under Section 34(1)(a)/(2) of the M. P. Excise Act.

Learned Trial Court, after recording evidence has acquitted the non-applicant, as the whole seizure of liquor was not produced before the Court and that Excise Inspector Kamal Kumar Vishwakarma has not been supported by the independent witnesses and also by the accompanying Constable Shobharam.

It has been held in the case of Vijendrajit Ayodhya Prasad Goel vs. State of Bombay, AIR 1953 SC 247 that it is not required to produce the whole of the liquor before the Court and only production of sample would suffice therefore, observation of the Trial Court that whole liquor ought to have been produced breaches the observations of the Apex Court in the case of Vijendrajit Ayodhya Prasad Goel (supra).

Counsel for the non-applicant has submitted that Excise Constable Shobharam has turned hostile and admits in the cross-examination on behalf of the accused that the liquor was not tested in his presence at the spot of seizure and such submission is contrary to the deposition of Kamal Kumar Vishwakarma (PW-3), who has stated that he had tested the liquor at the premises of accused only. It has further been submitted that there was no instrument to measure the quantity of liquor and therefore, the prosecution case that 60 bulk litres of liquor was seized in this case is not based on any reliable material.

Considered rival contentions.

Original record of the case was perused.

It has been held in catena of decisions by the Apex Court that conviction can be based only on the evidence of the Investigating Officer and it is not compulsory that his submissions be corroborated by other witnesses. Kamal Kumar Vishwakarma (PW-3) has not been asked any question in his cross-examination regarding the place of testing and his submissions in examination-in-chief have gone unchallenged. There is substance in the application filed under Section 378(3) of Cr.P.C.

On due consideration of the aforesaid, I deem it appropriate to grant leave to appeal. Accordingly, application filed by the applicant under Section 378(3) of Cr.P.C. is allowed and permission for leave to appeal is granted.

Office is directed to register criminal appeal.

Let a bailable warrant in the sum of Rs.5,000/- be issued against the non-applicant for her appearance before the Trial Court on 12.08.2019. The non-applicant shall furnish solvent surety of Rs.5,000/- with personal bond of the like amount to the satisfaction of the Trial Court for her appearance before the Registry of this Court on 26.08.2019.

Appeal be listed on the question of admission after six weeks. With the aforesaid, M.Cr.C. No.8964/2017 is allowed and is accordingly, disposed of.