Madhya Pradesh High Court
Arun @ Bablu And Anr. vs The State Of M.P. on 14 May, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 14 th OF MAY, 2024
CRIMINAL APPEAL No. 979 of 2004
BETWEEN:-
1. ARUN @ BABLU S/O MANGAL @ DHANRAJ
RATHOR, AGED ABOUT 22 YEARS, R/O KHANDRA
(KILA) (MADHYA PRADESH)
2. SUBHASH S/O SHRI LAL KODLE, AGED ABOUT 24
YEARS, R/O PAWAR CHOWK, JAWAHAR WARD,
BETUL BAZAR, TEH & DISTT BETUL (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI ASHISH TIWARI - ADVOCATE)
AND
THE STATE OF M.P., THROUGH EXCISE DEPARTMENT
SARANI BETUL (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI PRASANNAJIT CHATTERJI - PANEL LAWYER FOR THE STATE)
Reserved on : 02.01.2024
Pronounced on : 14.05.2024
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
This criminal appeal has been preferred to challenge the judgment
delivered on 11.06.2004 by Special Judge, Betul in Special Case No.01/2003,
whereby the appellants (hereinafter referred to as 'accused') have been
convicted for the offence of Section 34(1)(a) read with sub-Section (2) of M.P.
Excise Act and sentenced to undergo rigorous imprisonment for one year and
fine of Rs.25,000/- with additional rigorous imprisonment of 6 months for non-
payment of fine.
2. The facts relevant for the decision of this criminal appeal are that on
18.07.2002 District Excise Officer, Betul was checking the vehicles on Betul-
Itarsi road near Padar Bus Stand alongwith his team; during this checking Jeep
No.MP48W0029, in which accused persons were present, was searched; in the
backside area of the vehicle 1200 quarters of Champion Fine whiskey were
found in 25 cartons, for which the accused persons could not produce any
permit of transportation. The contents of bottle were examined and it was found
that the liquid was liquor with 25.3 U.P. intensity. In the same vehicle some
green substance was found in a plastic bag which was kept in the dickey; its
smelled like ganja; it was weighed to be 850 grams, three samples of 20 gram
each were drawn; the samples as well as the remaining quantity of Ganja and
also the English liquor were sealed and the accused persons were arrested. FIR
was registered against the accused persons and the matter was investigated.
Trial followed after filing of charge-sheet and upon its conclusion, the impugned
judgment was passed, whereby accused persons were acquitted of the charge
of Section 8 read with Section 20(b)(ii) of NDPS Act, but were convicted and
sentenced as afore-discussed.
3. The grounds raised in this criminal appeal are that the impugned judgment
and the findings of the Court below are contrary to law, facts and
circumstances of the case; the necessary ingredients to prove the offence were
not made out, still the Court held the accused persons guilty; the statements of
prosecution witnesses were full of contradictions, omissions and improvements
hence, no conviction could have been based on their testimony. It was,
therefore, prayed that the appeal be allowed and the accused persons be
acquitted.
4. State has opposed the present appeal on the ground that there are no
justified reasons to interfere in the judgment of conviction and sentence passed
by the trial Court.
5. Both the parties have been heard and record is perused.
6. It is a case where the accused persons were tried by a specially designated
Court under NDPS Act for an offence of having in their joint possession 850
grams of Ganja. Under the NDPS Act this quantity falls in the category of small
quantity under Section 20(b)(ii)(A) of NDPS Act and for such kind of offence
the cognizance is taken and the trial is held by the Magistrate and not by the
Presiding Judicial Officer of Special Court constituted under Section 36A
NDPS Act. Further, the offence of Section 34(1)(a) read with Sub-section (2)
of M.P. Excise Act is also of the nature in which the cognizance is taken by the
Magistrate and the trial is also held by a Magistrate Court. Thus, it is evident
that the Special Court notified under NDPS Act was not supposed to take
cognizance of the crime and hold the trial, still the cognizance was taken and
after holding the trial the judgment of conviction alongwith sentence was
passed.
7. The perusal of record reveals that the accused persons never challenged
the order taking cognizance and holding the trial by the Special Court in this
case. Even in this criminal appeal they are silent on this aspect. It cannot be
ignored here that the alleged offence was committed in the year 2002 and the
appeal under consideration is pending since 2004. Therefore, if this Court
directs a retrial then it would definitely cause a great hardship to the accused for
he would again be subjected to the drill of trial after a passage of long 22 years.
Further, he has not claimed that there has been any failure of justice in taking
cognizance and holding trial by a higher Court, which did not lack inherent
jurisdiction, though the matter was to be placed before the Magistrate Court.
Taking these factual aspects into consideration, this Court comes to the
conclusion that the judgment and the finding of the trial Court need not to be
reversed on the ground of error of jurisdiction, which the trial Court was not
lacking inherently.
8. Now, lets consider the merits of the case. The trial Court had acquitted the
accused persons of the offence of 8(c)/20(b)(ii)(A) of NDPS Act and held them
guilty for the offence of 34(1)(a) read with sub-Section (2) of M.P. Excise Act.
For establishing this offence of 34(1)(a) read with sub-Section (2) of M.P.
Excise Act the prosecution has relied upon the statements of Assistant District
Excise Officer Jeevan Singh Kachhwaha (PW/5), who searched the vehicle and
seized the liquor, his team member S.I. (Excise) B.S. Bhate (PW/4), another
team member Excise Constable Rajesh Vishwakarma (PW/2) and the
independent seizure witness Ashok Satankar (PW/3). It is a case of seizure of
206 liters of English Liquor which was kept in 1200 bottles in 25 cartons and
were being transported without permit in a jeep. Interestingly, the seized liquor
was never produced in evidence before the trial Court.
9. In the case of Ashok alias Dangra Jaiswal vs. State of Madhya
Pradesh (2011)5 SCC 123 the Hon'ble Apex Court has considered the
evidentiary value of the seized material, especially in the case of narcotics etc.
and has held that the "best evidence would be the seized material itself, which
ought to have been produced during the trial and marked as material object;
there is no explanation for this failure to produce seized items; mere oral
evidence as to their features and production of panchnama would not discharge
the heavy burden which lies upon prosecution, particularly where the offence is
punishable with a stringent sentence as under the NDPS Act." On this principle,
the offence of Section 34(1)(a) read with sub-Section (2) of M.P. Excise Act,
which prescribes for minimum and stringent punishment cannot be
distinguished.
10. In the light of foregoing discussion, the conviction of accused persons
for the offence of Section 34(1)(a) read with sub-Section (2) of M.P. Excise
Act is liable to be set aside for the simple reason that the prosecution has failed
to produce in evidence the seized liquor before the trial Court hence, they are
acquitted of said offence and this appeal is allowed.
11. The case property shall be disposed off as directed by the trial Court.
12. The accused persons are on bail. Their bail bonds stand discharged.
The fine amount if deposited by accused persons be refunded to them.
13. Let the copy of judgment alongwith record be sent to the trial Court for
information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
rv
