Gujarat High Court
Koli vs State
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
CR.RA/98/1997 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 98 of 1997 ========================================================= KOLI LAKHMAN KHANJI @ KANABHAI - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : NOTICE SERVED for Applicant(s) : 1,MR SAMEER KHAN with MR YOGESH S LAKHANI for Applicant(s) : 1, MR HL JANI, APP for Respondent(s) : 1, ========================================================== CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 07/02/2012 ORAL ORDER
The present applicant -
original accused No.2, who is convicted by the learned Judicial Magistrate First Class at Veraval has challenged the order dated 29.10.1994 passed in Criminal Case No.20 of 1990 convicting the applicant under Sections 66(b), 65(E)(a) and 81 of the Bombay Prohibition Act, whereby the applicant is sentenced to undergo S.I. for 3 months and to pay fine of Rs.500/- and in default to undergo further S.I. of 2 months for the offence punishable under Sections 66(b) and 65(E)(a) and 81 of the Bombay Prohibition Act. Against the said order the applicant filed Criminal Appeal No.25 of 1994 before the learned Additional Sessions Judge, Junagadh. The learned Additional Sessions Judge, Junagadh, by judgment and order dated 24.2.1997 confirmed the order passed by the learned JMFC and thereby rejected the Appeal of the present applicant. Against that order the present application is preferred before this Court.
On 30.8.1989, a raid was carried out on the highway and one Metador was intercepted and it was found that one Hamid Alimiya Shaikh, owner of the Metador was found driving the same and present applicant was found sitting near the driver. On checking the said Metador certain gunny bags were found in the rear side of the Metador, which were found to be containing 648 bottles of foreign liquor and beers. The panchnama was drawn and thereafter the accused persons were arrested and Police Inspector Shri Parmar had filed the complaint which was investigated by Police Sub Inspector Shri Jhala. From the muddamal articles, 8 sample bottles were handed over by the Head Constable Shri Barot bearing buckle No.1401 and opinion from the laboratory was obtained and charge-sheet was filed against the present applicant. In that connection Prosecution Witness No.1 is examined at 21, complainant - Shri V.V.Parmar, Police Inspector is examined at Ex.26 and other Prosecution Witness No.3, Police Sub Inspector is examined Ex.34. The documents are produced in support of the prosecution case and statement of present applicant is recorded. The learned JMFC convicted the present applicant for the said offence. Against that conviction order, the present applicant moved before the learned Additional Sessions Judge and the learned Judge has confirmed the judgment and order passed by the learned JMFC.
Heard Mr.Sameer Khan, learned advocate appearing for Mr.Y.S.Lakhani, for the applicant. Mr.Khan has read oral version of the complainant and contended that learned JMFC has not considered the defence version. He has further contended that looking to the ingredients of the said offence it was the duty of the prosecution to prove case beyond reasonable doubt. He has read expert's opinion Ex.28 and contended that the document is not proved. He has prayed to quash and set aside the judgment and order of the learned Judicial Magistrate First Class at Veraval as well as learned Additional Sessions Judge, Junagadh.
Heard Mr.H.L.Jani, learned APP for the respondent - State. He has read the observations made by the learned Judicial Magistrate First Class at Veraval as well as learned Additional Sessions Judge, Junagadh and contended that the case is proved beyond reasonable doubt. He has further contended that looking to the muddamal which is recovered in quantity the judgment and order of the learned Judge is required to be confirmed.
Heard learned advocate for both the parties at length and in great detail. I have gone through papers produced before me and the judgment and order passed by the learned Judge. I have also considered the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned counsel.
So far as admission of the present applicant is concerned, he has admitted the report of the laboratory and even not bothered to call said expert from the laboratory to cross-exmine. In view of this position I am fully in agreement with the findings arrived at by both the Courts below. But looking to the conviction made by the learned Judicial Magistrate First Class at Veraval it is very harsh in nature. The offence is committed by the present applicant in the year 1989 and after such a long period this Revision Application has come up for hearing. The order dated 29.10.1994 passed by the learned Judicial Magistrate First Class at Veraval, in Criminal Case No.20 of 1990 as confirmed by the learned Additional Sessions Judge, Junagadh, in Criminal Appeal No.25 of 1994 is hereby modified to the extent that sentence imposed of 3 months S.I. is reduced to one and half month.
This Revision Application is partly allowed. Rule is made absolute to the aforesaid extent. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Direct service is permitted.
(Z. K. SAIYED, J) kks