Dharmendra vs The State Of Madhya Pradesh
2023 Latest Caselaw 9580 MP

                                    -1-


      IN THE HIGH COURT OF MADHYA PRADESH
                   AT I N D O R E
                             BEFORE
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                     ON THE 26th OF JUNE, 2023


                 CRIMINAL REVISION No. 2329 of 2023

BETWEEN:-
DHARMENDRA S/O SITARAM VERMA, AGED ABOUT 40 YEARS,
VILLAGE PIPRI P.S. THIKRI DISTRICT BARWANI (MADHYA PRADESH)
                                                        .....PETITIONER
(BY SHRI MITESH JAIN, ADVOCATE)

AND
THE STATE OF MADHYA PRADESH DISTRICT MAGISTRATE. DISTRICT
BARWANI (MADHYA PRADESH)
                                                     .....RESPONDENTS
(BY SHRI AMIT RAWAL, GOVERNMENT ADVOCATE)
        This revision coming on for admission this day, the court passed
the following:
                               ORDER

Heard on the question of admission.

Also heard on I.A. No.8091/2023, which is first application under Section 397(1) of the Code of Criminal Procedure, 1973 for suspension of jail sentence and grant of bail filed on behalf of appellant

- Dharmendra S/o Sitaram Verma.

02. The applicant has filed the present revision under Section 397 r/w section 401 of the Cr.P.C. against the judgment of conviction and

sentence dated 29.03.2023 passed by the Judicial Magistrate First Class in RCT No.16/2020, whereby he has been convicted for the offence punishable under Section 34(2) of the M.P. Excise Act and sentenced to undergo 01 year's rigorous imprisonment along with fine of Rs.25,000/-. With default clause to further undergo 02 months' simple imprisonment. This revision is also against the judgment dated 26.03.2023 passed by the Sessions Judge, Barwani in Criminal Appeal No.50/2023, whereby the criminal appeal has been dismissed affirming the judgment dated 29.03.2023.

03. As per prosecution story, on 03.12.2019, Sup Inspector - B.S. Jamra, Excise Circle, Ajand was on routine patrolling and he received a secret information that the present applicant is illegally selling liquor from his furniture shop situated at Village - Pipri. Thereafter, he called the Panch Witness Dilip (P.W-1) and Companion Witnesss Constable - Hukumchand Patidar (P.W-2) and reached to the shop. The applicant was found in the shop and he was told to cooperate with the investigation. Personal search of the applicant was conducted, but no objectionable material was found. Thereafter, his shop was searched in which country made liquor in 7 boxes was found. After testing and smelling, the liquor was found to be country made liquor. The applicant was asked to produce the license, which he did not produce. All the boxes were seized and this applicant was arrested. After measurement, 63 bulk litre liquor was found in possession of the applicant without license, accordingly, F.I.R. under Section 34(2) was registered against the applicant. Criminal record of the applicant (Ex-P/16) was obtained.

04. The learned trial Court framed the charges. The prosecution

examined four witnesses. The applicant denied the charges and pleaded that he is a disable person suffering from liver disease, his wife is also disable and he is not the owner of the shop. Hence, he has falsely been implicated by the police. After appreciating the evidence that came on record, the applicant has been convicted under Section 34(2) of the M.P. Excise Act.

05. Learned counsel for the applicant submits that this revision may kindly be admitted and jail sentence of the applicant may be suspended as out of one year, the applicant has undergone 07 months of sentence and deposited the fine amount. He is a handicapped person and he has prima facie good case for acquittal. The place from where the liquor was seized does not belong to the applicant. There is no FSL report confirming that the liquor was seized from possession of the present applicant. The shop in question is registered in the name of his mother Kamla Bai.

06. Learned Government Advocate for the respondent / State opposes the admission as well the application for suspension of jail sentence. He submits that revision is not liable to be admitted unless there is a ground to admit and there is no scope of reduction of jail sentence also because under Section 34 of the Excise Act, there is minimum sentence of one year. Even , this applicant is having criminal record. He has been convicted thrice under Section 34(1) of the Excise Act.

07. The applicant has not produced any evidence to establish that he has falsely been implicated in this case. The search was conducted in presence of independent witnesses and the applicant was found in the

furniture shop from where 63 bulk litre country made liquor was recovered, which was smelt and tested by the IO having 12 years' experience and found that it is country made liquor. So far as ownership of the shop is concerned, it is in the name of mother of the applicant who has not been made accused. Even if the independent witnesses have not supported the case of prosecution, statement of Constable - Hukumchand Patidar (P.W-2) and IO - B.S. Jamra (P.W-3) cannot be discarded. Even otherwise also the applicant is a habitual offender. Interference by this Court in a revision under Section 397 r/w section 401 of the Cr.P.C. is very limited. Both the Courts below have duly considered the minimum sentence of one year and fine of Rs.25,000/-. Even other also, the applicant is a habitual offender.

08. In view of the above, I do not find any reason to interfere with the orders passed by the Court below. Accordingly, the Criminal Revision stands dismissed.

(VIVEK RUSIA) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2023.06.28 18:50:07 +05'30'