Rajesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 17453 MP

                                 1
 IN    THE       HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                   ON THE 18 th OF OCTOBER, 2023
                 CRIMINAL REVISION No. 3867 of 2023

BETWEEN:-
1.    RAJESH S/O LAD SINGH, AGED ABOUT 44 YEARS,
      OCCUPATION: PRIVATE JOB R/O C/109 NEHRU
      NAGAR P.S KAMLA NAGAR DISTRICT BHOPAL
      (MADHYA PRADESH)

2.    RAAJ @ RAHUL S/O VISHNU PRASAD, AGED
      ABOUT 19 YEARS, LABOUR R/O VILLAGE BORDI
      KALA, P.S. ICHAWAR, DISTRICT SEHORE
      (MADHYA PRADESH)

                                                            .....APPLICANTS
(BY SHRI SATYAM AGRAWAL - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR DISTRICT SEHORE (MADHYA PRADESH)

                                                           .....RESPONDENT
(BY SHRI S. P. CHADAR - GOVERNMENT ADVOCATE)

      Heard on        : 10.10.2023

      Pronounced on : 18.10.2023

      This revision having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
                                  ORDER

I n this criminal revision, the applicants have challenged the judgment passed on 14.08.2023 by Sessions Judge, Sehore in Cr.A. No.182/2022 in which Sessions Judge has partially dismissed the appeal preferred by the applicants against the judgement dated 28.07.2022 passed by CJM, Sehore in

RCT no.100125/2021. By this impugned judgment passed in criminal appeal, the applicants stand acquitted of the offence of Section 34(2) of M. P. Excise Act and are convicted for the offence of Section 34(1)(a)(b) of M. P. Excise Act and have been sentenced to undergo R.I. for six months and fine amount of Rs.5,000/-, with default stipulation.

2. The facts of the prosecution are that Thana Prabhari of police station Ichchawar received information in the night of 19.01.2016 about transportation of illicit liquor, upon which he proceeded to the spot along with his fellow staff and witnesses. A Maruti Swift car bearing registration No.MP04-CJ-7945, regarding which the information was received, was seen coming from Sehore,

which was stopped and checked. There were two persons in the car and upon searching the vehicle, 99 bulk liters plain country made liquor was found there inside the aforesaid car. Those persons were the present applicants. They could not show any valid license to justify their possession of liquor, hence, liquor was seized and one quarter was taken out from each of the 11 boxes as sample. The entire quantity and samples were sealed separately. The car along with documents was also seized and the applicants were arrested. On returning the police station, entry was made in Rojanamcha Sanha and an FIR was registered at crime No.26/2016. Separate proceeding for confiscation of vehicle was initiated and after investigation the charge-sheet was filed. The applicants were convicted by the trial Court for the offence of Section 34(2) of M. P. Excise Act and their appeals were allowed only partly by the impugned judgment.

3. The grounds raised in this revision are that the learned appellate Court has erred on facts as well as in law, as it failed to see that independent witnesses did not support the prosecution story and allegedly seized liquor was neither

sealed on spot nor produced before the trial Court. Since the seized liquor has not been produced as evidence, hence, no case is established against the present applicants. The alleged liquor was never sent for chemical examination. The liquor was never measured, hence, it cannot be claimed that it was 99 bulk liters. The exclusive possession of applicants over the liquor has not been proved. It was ignored that main accused had fled away from the spot. The appellate Court could not have convicted the applicants for the offence of Section 34(1)(a)(b) of M.P. Excise Act because no charge was framed under that section and it was not a lesser offence of Section 34 (2) of M. P. Excise Act. It has also been ignored by the learned appellate Court that the confiscation proceeding regarding seized vehicle was dismissed by the District Magistrate. It is claimed that the applicants were implicated in this case for the reason of animosity, but learned Courts below have failed to appreciate this fact and wrongly held the applicants guilty. Further, the sentence awarded to them is harsh and excessive. It is, therefore, prayed that this revision petition should be allowed and the applicants should be acquitted.

4. Learned counsel for the State has opposed this revision petition by claiming that the impugned judgment suffers no illegality or perversity, hence, it deserves no interference.

5. Heard learned counsel for the parties and record and judgment of the

Court below has been perused.

6. Before embarking upon the discussion of facts, it seems appropriate to discuss the legal issue raised in this criminal revision. It has been argued by learned counsel for the applicants that no charge of Section 34(1)(a)(b) of M.P. Excise Act was framed in the case and it was not a lesser offence of Section 34(2) of M.P. Excise Act, hence the appellate court could not have converted

the conviction from Section 34(2) of M.P. Excise Act to Section 34(1)(a)(b) of M.P. Excise Act.

7. I have considered the arguments and perused the Act. In both the sections, the unlawful manufacture, possession, sale, transport, etc. have been made punishable and Section 34(2) of M.P. Excise Act prescribes enhanced punishment for this act, if the quantity of illicit liquor found in possession of accused is beyond the prescribed limit. Thus, it cannot be legally disputed that Section 34(2) of M.P. Excise Act is a graver offence and the ingredients of both these sections of M.P. Excise Act, namely Section 34(1)(a)(b) and Section 34(2), are identical except on the quantum of illicit liquor and the quantum of punishment. Thus, the argument submitted by learned counsel to question the conviction on aforesaid ground, is not acceptable legally.

8 . It has been argued on behalf of counsel for the applicants that the learned courts below were not correct to hold the applicants guilty only on the basis of testimonies of police witnesses simply for the reason that there was an animosity between them and the applicants but no ground of animosity has been laid out in the evidence recorded before the trial court. In the cross-examination of Constable Om Prakash Yadav (P.W.5) suggestions were given that the Rai family of district Sehore is powerful and rich and under the influence of this family, a false case was registered against the opponents of this family, namely t h e applicants herein, but all these suggestions have been denied by the witnesses. Interestingly, no defence evidence has been produced in support of this plea.

9. It has also been argued that the learned courts below erred in holding the applicants convict for the offence despite the fact that no independent

witnesses supported the prosecution story. It has been held by the Apex Court time and again that the testimony of a police personnel should be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroboration by independent witnesses, their testimonies cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons. In the absence of any allegation of proof of enmity between the police witnesses and the accused, no defence to discard the testimonies of police officials is acceptable. For reference, the decision of Apex Court given in Karamjit Singh v. State (Delhi Administration) AIR 2003 SC 1311 and Rizwan Khan v. State of Chhattisgarh AIR Online 2020 SC 722 : (2020) 9 SCC 627 may be cited here. Thus, non-corroboration of prosecution case by independent witnesses has no effect on the reliability of the testimony of police personnel.

10. It has been argued by learned counsel for the applicants that the seized liquor was never produced before the court and merely on the basis of some samples, the decision of conviction has been arrived. For this, the evidence produced by the prosecution has been examined thoroughly. Ghanshyam Vishwakarma (P.W.1) is an independent witness and during his testimony, it is mentioned in the note given under para 8 that eleven cartons of seized liquor were produced in the court in a sealed condition. Similar is the observation noted during the testimony of Pawan Kumar Malviya (P.W.2). It is true that during the testimony of Excise Sub-Inspector Ashok Sindhe (P.W.4), only 11 quarters were brought before the court but this witness had examined only those quarters as sample, hence during his testimony only limited items were called in evidence. During the testimony of S. L. Baurasi (P.W.6), who was the seizure officer, all the 11 cartons were produced in evidence as

mentioned in the note given under para 6. Therefore, the objection raised by the learned counsel for applicant has no substance.

11. It is also argued that the confiscation proceedings regarding seized vehicle were dismissed by the District Magistrate, hence the applicants should have been acquitted in the crime. This point was raised even before the appellate court and it observed in para 17 of its judgment that both the proceedings have different scope and different subject, therefore, one cannot have a binding effect over the other. Merely for the dismissal of confiscation proceedings, it cannot be presumed that no crime was committed. It may be mentioned here that no legal proposition has been submitted by learned counsel for the applicants against the view of appellate court, hence this plea is also not found sustainable in this revision petition.

12. On the basis of above discussions of facts and law and also having considered the limited jurisdiction of this court, while deciding the revision petition, I find no reason to interfere in the impugned judgment of the learned

appellate court. Therefore, the conviction of applicants under Section 34(1)(a)

(b) of M.P. Excise Act is upheld.

13. So far as the sentence awarded by the learned appellate court is concerned, it has been argued by the counsel for applicants that the sentence is too harsh and excessive. Having considered the fact that the quantity seized from the possession of applicants was 99 litres of country-made liquor with no previous criminal record, the sentence is reduced to rigorous imprisonment of four months and fine amount of Rs.25,000/- and in default of payment of that amount, the applicants shall suffer further sentence of two months rigorous imprisonment.

14. The applicants are in custody. The decision of trial court regarding disposal of seized property is confirmed.

Let a copy of this order be send to the courts below for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.10.19 14:22:05 +05'30' Adobe Reader version: 11.0.8