THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CRL.R.C.No. 1121 of 2009
ORDER:
This criminal revision case is directed against the judgment of the learned Metropolitan Sessions Judge, Hyderabad, in Crl.A.No.300 of 2008, dated 07.07.2009, confirming the conviction and sentence of rigorous imprisonment for a period of four months for the offence punishable under Section 34 (a) of A.P. Excise Act imposed against the revision petitioner/accused by the learned XI Additional Chief Metropolitan Magistrate, Secunderabad, in C.C.No.419 of 2005 dated 28.08.2008.
2. It is the case of the prosecution that on 11.11.2004 on reliable information, P.W.2-Prohibition and Excise Sub Inspector procured panch witnesses including P.W.1 and proceeded to the road opposite to Military Hospital, Trimulgherry, Secunderabad, and that at about 6.00 A.M. they found the accused coming on a Scooter bearing 2 No.A.P-28A-3959 from AOC side and on verification and search of his Scooter, they found 105 litres of toddy in three plastic cans and that it was found to be free from Chloral Hydrate and that P.W.2 had drawn two samples from the contraband and seized the samples and the vehicle and that the accused was arrested. The Government Chemical Examiner for Excise after analysis of one of the samples opined that it was fermented toddy free from Chloral Hydrate and Diazepam.
3. A Charge under Section 34 (a) of A.P. Excise Act was framed against the accused and he pleaded not guilty and claimed to be tried. The prosecution, in order to prove its case against the accused, examined P.Ws.1 to 3 and got marked Exs.P1 to P3. Neither oral nor documentary evidence was adduced on behalf of the accused.
4. On a perusal of the entire evidence, both oral and documentary, the trial Court found the revision petitioner/accused guilty of the offence punishable under 3 Section 34 (a) of A.P. Excise Act and accordingly convicted and sentenced him to suffer rigorous imprisonment for a period of four months for the said offence.
5. In an appeal preferred by the revision petitioner/accused against the said conviction and sentence, the learned Metropolitan Sessions Judge, Hyderabad, confirmed the conviction and sentence recorded by the trial Court for the offence punishable under Section 34 (a) of A.P. Excise Act. Aggrieved by the said conviction and sentence, the revision petitioner/accused preferred this criminal revision, inter alia, contending that the appellate Court failed to consider the petition filed by the revision petitioner/accused under Section 391 Cr.P.C. in proper perspective and recorded the findings in a mechanical way by dismissing the petition. The appellate Court ought to have given an opportunity to the revision petitioner/accused for cross-examination of P.Ws.1 to 3 and as such the appellate Court erred in convicting the revision 4 petitioner/accused basing on the prosecution evidence, which caused much prejudice to the accused. Therefore, he requested this Court to remand the matter to the trial Court by giving an opportunity to the revision petitioner/accused to cross-examine P.Ws.1 to 3.
6. Heard both sides and perused the entire material available on record.
7. P.W.1 is the panch witness, P.W.2 is the Investigating Officer and P.W.3 is the Prohibition and Excise Sub Inspector, who registered the case against the accused. A perusal of the evidence of P.W.2 would disclose that on 11.11.2004 he found three plastic cans containing 105 litres of toddy from the possession of the accused while he was coming on a Scooter bearing No.A.P-28A-3959 from AOC side opposite to Military hospital, Trimulgherry and then he secured the presence of two mediators and seized the toddy and Scooter under Ex.P1-Seizure Panchanama and also drawn two samples from the seized toddy for analysis. The 5 evidence of P.W.2 was not shaken in the cross-examination with regard to the seizure of toddy under cover of Ex.P1. P.W.1, who is the panch witness present along with P.W.2 also supported the evidence of P.W.2. He stated that the Excise officials seized three cans of toddy and Scooter from the possession of the accused under cover of Ex.P1-Seizure Panchanama and that he signed on Ex.P1. P.W.1 also identified the accused and stated that he was driving the Scooter on the date of incident. However, P.W.1 was not cross-examined by the Counsel for the accused and hence his cross-examination was recorded as Nil. Therefore, the evidence of P.Ws.1 and 2 is consistent in all material aspects. According to the evidence of P.W.3, he arrested the accused and sent him for remand and thereafter he seized the case property and forwarded one sample of toddy to the Chemical Examiner, who in turn sent Ex.P3-Chemical analysis report stating that the sample is fermented toddy free from Chloral Hydrate and Diazepam. P.W.3 was also 6 not cross-examined and his cross-examination was reported as Nil.
8. The main contention of the learned Counsel for the revision petitioner/accused is that the appellate Court failed to consider the petition filed by the revision petitioner for cross-examination of P.Ws.1 to 3 in proper perspective and as such it caused serious prejudice to the accused.
9. A perusal of the case record would disclose that the revision petitioner/accused engaged an advocate in the trial Court to defend his case, however, he did not cross-examine P.Ws.1 to 3. One R.Subramanyam and A.Shiva Raj, advocates filed memo of appearance on behalf of the accused originally in the trial Court. The trial Court examined P.W.1 on 03.07.2008, P.W.2 on 10.07.2008 and P.W.3 on 31.07.2008. However, the Counsel for the accused did not cross-examine the witnesses for the reasons best known to them. Further, the said A.Shiva Raj, advocate filed Crl.M.P.No.1496 of 2008, under Section 70 (2) Cr.P.C., 7 on 21.02.2008 seeking to recall Non Bailable Warrant issued against the accused and the same was allowed. That apart, subsequent to conviction and sentence of accused by the trial Court, the same advocate along with another advocate filed a petition under Section 389 (3) Cr.P.C. for suspension of sentence of the accused. Therefore, sufficient opportunity was given by the trial Court to the accused to cross-examine the witnesses, however, the accused and his Counsel failed to utilise the said opportunity for the reasons best known to them. Therefore, I find no force in the contention of the learned Counsel for the revision petitioner that the revision petitioner/accused is entitled for another opportunity to cross-examine the witnesses.
10. For the aforementioned reasons, this Court of the view that the Courts below have rightly applied its mind and came to the conclusion that the revision petitioner/accused was guilty of the offence punishable under Section 34 (a) of the A.P. Excise Act.
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11. However, since the offence took place in the year 2004 and almost 19 years have passed and during this period the revision petitioner/accused must have repented for what he did, this Court deems it appropriate to reduce the conviction and sentence of rigorous imprisonment of four months imposed against the revision petitioner/accused to One month and further imposes a fine of Rs.25,000/- , in default, to suffer simple imprisonment for a period of 15 days for the offence punishable under Section 34 (a) of A.P. Excise Act.
12. With the above modification in the sentence, the Criminal Revision Case is dismissed.
Miscellaneous petitions, if any, pending, shall stand closed.
________________________ JUSTICE P.SREE SUDHA 17.02.2023 Gsn.