Himachal Pradesh High Court
Mahajan vs State Of Himachal Pradesh on 2 May, 2002
Equivalent citations: 2003CRILJ1346
Author: R.L. Khurana
Bench: R.L. Khurana
ORDER R.L. Khurana, J.
1. The petitioner, hereafter referred to as the accused, upon having been tried for the offence under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of Himachal Pradesh, was convicted for such offence by the learned Additional Chief Judicial Magistrate, Sarkaghat, vide judgment dated 5-8-1997 and sentenced to rigorous imprisonment for six months and to fine of Rs. 2000/-. In default of payment of fine, the accused was sentenced to undergo simple imprisonment for a further period of two months.
2. The conviction and sentence imposed upon the petitioner by the learned trial Court were affirmed in appeal by the learned Sessions Judge on 15-5-2000.
3. Briefly stated, the prosecution story is this. Upon the receipt of a secret information that the accused was indulging in the illicit trade of liquor, a raid was conducted by P.W. 5 A.S.I. Ram Dayal on 9-9-1994 at the residential house of the accused in village Karnol. During the course of search, a card-board container was recovered from a room of the house of the accused. Such car-board container contained eight bottles of XXX Rum. Samples were taken out of three bottles. The samples and the bottles recovered were separately sealed and taken into possession vide memo. Ex. P.W. 1/A. Since the accused was found in possession of liquor more than the prescribed limit, a case for the offence under Section 61(1)(a), Punjab Excise Act, as applicable to the State of Himachal Pradesh, came to bee registered vide F.I.R. Ex. P.W. 5/B. The samples of liquor on analysis were found to be of Indian made foreign liquor.
4. On having been put on trial, the accused pleaded not guilty. His defence was that of denial simpliciter.
5. The prosecution in support of its case examined five witnesses in all while the accused examined one witness in defence to show that he was having strained relations with P.W. 3 Inder Singh and that his three married sons were also residing with him.
6. The two Courts below on the basis of evidence coming on record came to the conclusion that the accused was in conscious possession of liquor in excess of the prescribed limit and as such the offence under Section 61(1)(a) of the Punjab Excise Act stood proved against him. The accused, therefore, was convicted and sentenced as aforesaid.
7. Assailing the conviction and sentence imposed upon him by the two Courts below, the accused has approached this Court by way of the present revision-petition. It has been contended that assuming that liquor was recovered from the accused, the prosecution has failed to prove that such liquor was in excess of the prescribed limit.
8. Section 61 of the Punjab Excise Act, as applicable to the State of Himachal Pradesh, insofar as it is material for the purpose of the present ease, provides :--
"(1) Whoever, in contravention of any section of this Act or of any rule notification issued or given thereunder or order made or any license, permit or pass granted under this Act :--
(a) imports, exports, transports, manufacture, collects, or possesses any intoxicant; or
(b) and (c) ..................;
shall be punishable for every offence with imprisonment for a term which may extend to three years and with fine up to two thousand rupees and if found in possession of a working still for the manufacture of any intoxicant, shall be punishable with minimum sentence of six month's and fine of two hundred rupees."
9. In exercise of the powers conferred by Sections 5 and 58 of the Punjab Excise Act, the Governor, Himachal Pradesh on 29-3-1985 issued an order bearing No. EXN. F(1)-4/76 published in Himachal Rajpatra (Extra-ordinary) on 30-3-1985 prescribing the limit for possession of Indian made foreign spirit (for short, IMFS) in respect of the areas/territories comprised in Himachal Pradesh immediately before 1st November, 1966. This order was issued by way of amendment of Order 2 of Himachal Pradesh Intoxicants Licence and Sale Orders, 1965. The relevant order reads :--
"2-A. Limit for retail possession : The following are the maximum quantifies of intoxicants which can be sold in each transaction in retail sale under the Punjab Excise Act, 1914, in the said area :--
(1) Foreign spirit Two bottles each of the
capacity of 750 ml.
(2) Beer whether Twelve bottles each of
imported or the capacity of 650 ml
made in India.
(3) Cider (liquor Six quart bottles.
manufactured
by fermentation
of juice of any
fruit) whether
imported or
made in India.
(4) Country liq- Two bottles each of the
uor capacity of 750 ml.
(5) Country fer- Six quart bottles,
mented liquor.
(6) Bhang 100 grams.
(7) Rectified One Pint of 375 ml.
spirit
(8) Denatured One bottle of 650 ml.
Spirit
Note.-- The limit of transportation mentioned at Items Nos. (1) and (2) above shall be alternative with the limit mentioned at Item No. (4) :
Provided that a person may, for bona fide consumption by him, the members of his family, or his guests, purchase, transport and possess foreign spirit up to 12 bottles of the capacity of 750 ml. each inclusive of imported spirit and 36 bottles of the capacity of 650 ml. each of Beer on the authority of a permit in Form L-50 granted by the Excise Officer, holding the charge of the District, on payment of a permit fee according to the following scale for a financial year or part thereof:--
Quantity Permit fee Exceeding six bottles of IMFS of 750 ml. each and 12 bottles of 650 ml. each Fifty rupees of Beer but not exceeding only. 12 bottles of IMFS and 36 bottles of Beer.
Note :--The possession limit by one family living in a separate and distinct premises will be six bottles of IMFS of 750 ml, each and 24 bottles of Beer of 650 ml. each at one time. Imported liquor will be considered as part of stocks of IMFS and bottles of foreign liquor which may be of one litre or two litres will be converted, for this purpose, to the limits prescribed for IMFS in 750 ml. bottles :
Provided further that in case of possession and purchase of denatured spirit for industrial purposes, a permit may be obtained from the Excise Officers of the 1st Class as declared by the State Government."
10. In view of the above quoted order issued by the State Government, the permissible prescribed limit for possession of Indian made Foreign Spirit without permit at one time by a family is six bottles of IMFS of 750 ml. each and 24 bottles of Beer of 650 ml. each.
11. In the present case, as per the prosecution story, eight bottles of XXX Rum were recovered from the possession of the accused. Admittedly, samples out of only three bottles were taken by the Investigation Officer and sent for analysis. Such samples were found to be of IMFS vide report Ex. P.W. 5/E.
12. In view of such report, at the most, the prosecution has been able to prove the possession of the accused only qua three bottles of IMFS. Nothing has come on the record to show that the remaining five bottles alleged to have been recovered from the accused also contained IMFS.
13. Before the accused could be convicted for the offence, the prosecution was obliged to prove that he was in conscious possession of IMFS in excess of the prescribed limit of six bottles of 750 ml. each. The prosecution, as stated above, could prove the possession of the accused only qua three bottles, which possession is below the prescribed limit. The conviction and sentence imposed upon the accused by the two Courts below, on this short ground alone cannot be sustained.
14. As a result, the present petition is allowed. The conviction and sentence imposed on the accused by the two Courts below are set aside and he is acquitted of the offence under Section 61(1)(a), Punjab Excise Act. The accused is on bail. His bail bonds shall stand cancelled and discharged. The amount of fine, if already paid, shall be refunded to the accused. The case property shall be dealt with as per the orders of the learned trial Court.