Kunwarsingh vs The State Of Madhya Pradesh
2023 Latest Caselaw 13791 MP

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                                                      CRR No. 3147/2023



        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA

                 ON THE 23rd OF AUGUST, 2023

             CRIMINAL REVISION No. 3147 of 2023

BETWEEN:-
   KUNWARSINGH S/O HEMRAJ MANDLOI, AGED ABOUT 50 YEARS,
1. OCCUPATION: AGRICULTURIST VILLAGE KAKADKUAN P.S.
   TANDA TEHSIL KUKSHI DISTRICT DHAR (MADHYA PRADESH)
   MADIYA S/O KUNWARSINGH MANDLOI, AGED ABOUT 50 YEARS,
2. OCCUPATION: AGRICULTURIST KAKADKUAN, P.S. TANDA, TEH.
   KUKSHI, DIST. DHAR (MADHYA PRADESH)
                                                   .....APPLICANTS
(SHRI SIDDHARTH JAIN, LEARNED COUNSEL FOR THE APPLICANTS.)

AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH POLICE STATION TANDA DISTRICT DHAR (MADHYA
PRADESH)
                                                 .....RESPONDENTS
(SHRI AMIT RAWAL,       LEARNED      GOVT.   ADVOCATE     FOR    THE
RESPONDENT/STATE.)


       This revision coming on for hearing this day, the court passed
the following:
                            ORDER

1. The present revision is filed against the judgment dated 23.8.2022 passed by Chief Judicial Magistrate, Dhar whereby the applicants haVE been convicted u/s. 34(2) and 36 of the M.P. Excise Act and sentenced to undergo 1-1 year RI and 3-3 months RI and to

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CRR No. 3147/2023

pay fine of Rs.25,000/- - 25,000/- and Rs. 500-500/- with default stipulation. The appeals preferred by the applicants against the aforesaid judgment has also been dismissed and their conviction and sentence has been maintained vide judgment dated 14.7.2023, which is also under challenge in this revision.

2. The prosecution story in short is as under :

On 8.8.2020, Sub Inspector - Vijay Waskale along with Constables Neeraj Jaat and Manish Pal in a Govt. vehicle was on patrolling. They receive a discrete information that a white coloured Toofan Jeep bearing Registration No. MP-09-BD-7614 is carrying liquor illegally by two persons viz. Kunwarsingh and Madiya. Kanwarsingh was driving the vehicle and Madiya was sitting on the nearby seat. 'Panch' witnesses were called and 'Panchnama' was drawn and the entire team reached to Kakadkuwan Fanta, Bori-Tanda Main Road and put the barricades. They saw a Toofan Jeep coming which was stopped by showing the torch. The driver of the jeep disclosed his name as Kunwarsingh and another person disclosed his name as Madiya. The vehicle was searched from which 10 boxes were recovered and each box was containing 50 Quarters (each Quarter containing 180 ml.) of liquor, total 500 Quarters. In presence of the witnesses the liquor was seized and the present applicants were arrested u/s. 34(2) and 36 of the M.P. Excise Act by registering the FIR No. 147/2020. The samples were drawn from the seized liquor and were sent for testing. After completing the investigation, charge-sheet was filed. Charges were framed which the applicants denied and prayed for trial. The prosecution examined 9 witnesses. In defence, the

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applicants examined Kunwarsingh himself as D.W.1, Annu Bai as D.W.2 and Rakam as D.W.3. After appreciating the evidence came on record, the learned Chief Judicial Magistrate convicted and sentenced the applicants, as stated first. The appeal preferred by the applicants against the aforesaid judgment has also been dismissed. Hence, the present revision before this Court.

3. Learned counsel for the applicants submits that the applicants have falsely been implicated in this case. No liquor was seized from the possession of the applicants. The investigation was not properly done. The samples were not drawn from all the bottles (Quarters). Exhibited documents were not signed by the learned Trial Judge and this defect was rectified by a Judge in whose presence the documents were not exhibited, therefore, it vitiates the entire trial. It is further submitted that the seizure witnesses have turned hostile, therefore, on the basis of police witnesses the conviction of the applicants is bad in law.

4. On the other hand, learned Govt. Advocate opposed the prayer and argued in support of the impugned judgments by submitting that the jeep is owned by son of one of the applicants - Kunwarsingh. From the said jeep the liquor was recovered. The applicants have failed to given any explanation to it. No such ground of non-exhibition of the documents by the trial Judge was raised before the Sessions Court. The documents were exhibited and no objection was raised. These are part of the record and, therefore, it will not vitiate the trial. The scope of interference by the High Court in a revision is very limited. It is further submitted that out of one year the applicants have already undergone almost 8 months' jail sentence and the minimum sentence is one year.

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The applicants have also criminal record. No interference is called for and the revision is liable to be dismissed.

After having heard the learned counsel for the parties, I have perused the record of court below.

5. P.W.1 - Ajay who was a seizure witness has not supported the case of prosecution. According to him, no seizure was done in his presence. However, he has admitted his signature in the Seizure Panchnama; Tasdik Panchnama; and Memorandum Panchnama. Likewise, P.W.3 - Shivshankar has turned hostile but admitted his signatures in the aforesaid documents. G.C. Ninama (P.W.2) has duly identified the present applicants. On the date of incident he was posted as Assistant Sub Inspector and he has narrated the entire story and investigation. Head Constable - Diwakar Bais (P.W.4) has also supported the case of prosecution. Likewise, Neeraj Jaat (P.W.5) - Constable who got the discrete information and immediately informed to ASI G.C. Ninama has also supported the case of prosecution. P.W.6

- Rajesh Jain, Addl. District Excise Officer received 7 boxes in sealed condition from Constable Neeraj Jaat (P.W.5). He opened 4 boxes and mixed the liquor in Cane 'V' and smelled and tasted. Litmus paper test was conducted and it was found that it was a plain liquor. All these seized articles were produced before the Court also. P.W.7 - B.S. Parihar, Assistant Sub Inspector has also supported the case of prosecution. Vijay Waskale (P.W.9) who conducted the investigation has proved the seizure of articles. In defence, in cross-examination Kunwarsingh (D.W.1) has admitted that the seized vehicle bearing Registration No. MP-09-BD-7614 was registered in the name of his

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son - Rakham. The applicant - Kunwarsingh is a habitual offender. As many as 10 criminal cases have been registered against him. Likewise, 2 criminal cases have been registered u/s. 34(2) of the M.P. Exchise Act against the applicant - Madiya. Therefore it cannot be said that the applicants are innocent persons and they have been falsely implicated by the prosecution. Only 4 months are left to undergo the entire jail sentence.

6. So far as the documents exhibited in the trial and not signed by the concerned Judge are concerned, the learned Sessions Judge vide order dated 14.7.2023 sent the documents to Magistrate to sign on Exhibit P/1 to P/21. In the order it has been observed that the accused have no objection for signing on the exhibited documents. Now, the applicants cannot raise this ground in this revision. Therefore, the prosecution has duly proved the charges against the applicants. The scope of interference by the High Court in a revision is very limited. No interference is called for.

Accordingly, this revision is dismissed.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2023.08.25 18:31:17 +05'30'