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Madhya Pradesh High Court

Lakhvindersingh vs The State Of Madhya Pradesh on 18 July, 2019

                                            1               CRA NO.2622/2019

   HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
 SINGLE BENCH: HON'BLE MR. JUSTICE SHAILENDRA SHUKLA

                   CRIMINAL APPEAL NO.2622 OF 2019
                    LAKHVINDERSINGH AND ANOTHER
                                        Versus
                     THE STATE OF MADHYA PRADESH

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     Mr. Sanjay Sharma, learned counsel for the
appellants.
     Mr. Yogesh Kumar Gupta, learned counsel for the
respondent/State.
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                                     JUDGMENT

(Delivered on 18th day of July 2019) This order shall govern the disposal of this appeal filed by the appellants under-Section 374 of Criminal Procedure Code, 1973 against the judgment dated 08.03.2019 of conviction and sentence, whereby the appellants have been convicted and sentenced as under:-

Section & Imprisonmen Fine if deposited Imprisonment in lieu Act t details of fine 34 (2) of MP 2-2 years RI Rs.25000-25000/- 3-3 months RI Excise Act, 1915 Section 420 3-3 years RI Rs.5000-5000/- 3-3 months RI r/w Section 34 IPC Section 467 7-7 years RI Rs.5000-5000/- 3-3 months RI r/w Section 34 IPC Section 468 5-5 years RI Rs.5000-5000/- 3-3 months RI r/w Section 34 IPC The prosecution story in short is that on 18.09.2017 at around 10:30 pm, an information was received at police-

sub-station, Balsamund, which comes under the jurisdiction of Police Station-Nagalwadi, District-Barwani regarding a Trawler bearing registration No.HR-68-A-2975 carrying illegal foreign liquor from AB Road, Khalghat towards Dhulia, Maharashtra. Sub-Inspector-Mr. Santosh Sanvale recorded the information in Rojnamcha and proceeded to the spot along with police personnel and independent witnesses who were apprised about the information received and Trawler which arrived after sometime was intercepted. The driver disclosed his name as Lakhvinder Singh (appellant No.1) and the Cleaner discloses his name as Vicky @ Vikram (appellant No.2). Both declared that they were carrying the Apples and Peers (fruits) and showed them transit pass (Bilty). They produced registration card of the vehicle showing the owner to be Jasbir Singh and also national permit and other documents. However, when the boxes allegedly carrying fruits were opened up, it was found that instead of fruits, they were containing foreign liquor which was Imperial Blue Whiskey and Royal Stag Whiskey. No documents in respect of possessing the liquor was provided by the appellants. The liquor boxes was unloaded and there were 314 boxes which contained 2826 litres of Imperial Blue Whiskey valued at Rs.15,26,040/-, 339 identical boxes of same brand Whiskey-Royal Stag Whiskey valued at Rs.17,41,104/- and 265 boxes of Delux Whiskey, quantity 2385 litres valued at Rs.14,31,000/-. Further, 93 boxes of Identical Royal Stag Whiskey, 3 CRA NO.2622/2019 quantity-803 litres valued at Rs.5,17,824/-, total 101 boxes with quantity of 8942 bulk litres valued at Rs.52,15,968/-. Offence under Sections 420, 467, 468 of Indian Penal Code, 1860 along with Section 34(2)(A) of MP Excise Act, 1915 was registered against the appellants.

FIR was registered against the appellants at Police Sub-Station-Balsamund, as Crime No.246/2017 in Police- Station-Nagalwadi, District-Barwani (MP). Samples of liquor were sent to chemical analysis and after investigation, charge-sheet was filed to the Court of Chief Judicial Magistrate, Barwani who committed the case to the Sessions Judge, Barwani.

The Sessions Judge, Barwani, framed the charges against the appellants under the provisions of Section 420, 467, 468 IPC and also under Section 34(2) of MP Excise Act. The appellants abjured their guilt and sought trial. The prosecution examined thirteen witnesses in all and these witnesses are Gangaram @ Munna (PW-1), Gabu (PW-2), Sukhlal (PW-3), Kalia (PW-4), Hiten (PW-5), Jubair Khan (PW-6), Israr Khan (PW-7), Pratapsingh Solanki (PW-8), Constable-Bherusingh (PW-9), Head Constable Nawalsingh (PW-10), Sub-Inspector Hirusingh Rawat (PW-

11), Sub-Inspector S.S. Sanvale (PW-12) and Excise Sub- Inspector K.K. Sharma (PW-13).

The trial Court found the appellants guilty and convicted and sentenced them, as described in para-1 of the judgment.

In the appeal filed against the judgment and 4 CRA NO.2622/2019 conviction, it has been stated that conclusions drawn in the judgment by the trial Court is not proper, that the appellants have been held guilty for forging the transit pass, whereas no forgery has been found proved and that the independent witnesses have not supported the prosecution story. Further, that the witnesses residing in the proximity of the spot where the Trawler was intercepted have not been examined and the appellants have been convicted by the Presiding Officer only on the basis of deposition of Investigating Officer and other Police Officers, therefore, it has been prayed that the appellants be acquitted.

The main question before this Court is whether in view of the grounds contained in the memo of appeal, the appellants deserved to be acquitted and have been wrongly convicted and sentenced by the trial Court ?

The independent witnesses-Gangaram (PW-1), Gabu (PW-2), Sukhlal (PW-3), Kalia (PW-4) and Hiten (PW-5) have been declared hostile. Although they state in examination-in-chief that they had unloaded liquor boxes from a Truck but hasten to state that they had not opened the boxes containing the liquor and in cross-examination again reiterate that they had not seen that the boxes contained liquor. Another two witnesses namely; Jubair Khan (PW-6) and Israr Khan (PW-7) who were witnesses of seizure have also turned hostile and the only witness supporting the prosecution story are Sub-Inspector Mr. S.S. Sanvale. Head Constable- Mr. Nawalsingh (PW-10) 5 CRA NO.2622/2019 and Constable-Mr. Bherusingh (PW-9). These witnesses unequivocally supports the prosecution story stating that they had intercepted Trawler No.HR68A-2975 and that they had inquired from the persons who were riding the vehicle to disclose the items which were being transported to which the appellants replied that they are transporting fruits. These witnesses states that on examining the boxes which were purportedly carrying fruits, it was found that those boxes contained foreign liquor which was Royal Stag Whiskey and Imperial Blue Whiskey.

Panchnama of liquor unloaded was drawn which is Exhibit-P/7, the liquor was seized as per Exhibit-P/12, FIR was recorded and registered as Exhibit-P/13, memorandum of appellant No.1-Lakhvindersingh was recorded as Exhibit-P/10, whereas memorandum of appellant No.2-Vicky @ Vikram was recorded which is Exhibit-P11 and that both the appellants were arrested as per Exhibit-P/8 and Exhibit-P/9.

The driving licence of appellants are Exhibit-P/16 and Exhibit-P/17, Registration Card Exhibit-P/18, Insurance Policy Exhibit-P/19 and Bilty Exhibit-P/22 and Exhibit-P/23 were seized. Rojnamcha drawn while proceeding towards the spot as Exhibit-P/25 and written Rojnamcha is Exhibit- P/26. Sub-Inspector Mr. S.S. Sanvale states that samples were withdrawn from the boxes.

Mr. K.K. Sharma, Excise Sub-Inspector (PW-13) has examined samples of liquor seized and has given his report after subjecting samples to physical test. The report 6 CRA NO.2622/2019 is Exhibited as Exhibit-P/27. The examination involved temperature, hydrometre, litmus paper test and this apart, smelling and testing of liquor was also done by the witnesses. This witness is Excise Sub-Inspector Mr. Sharma (PW-13) who being an experienced person in this field and, therefore, his evidence cannot be doubted.

In the case of Kallu Khan vs State of Madhya Pradesh reported in 1980 JLJ 509 and Sukhlal vs State reported in 1995 MPLJ 266, it has been laid down that a person having expertise in the field who may be an Excise Officer, may, by applying physical test can give his opinion as to seized liquid being liquor and there is no necessity for chemical examination of liquor.

In the case of Pramod Kumar vs State (NCT) of Delhi reported in AIR 2013 SC 3344, it has been laid down that there is no absolute command of law that the Police Officer cannot be cited as witnesses and there testimony should always be treated with suspicion. The witnesses from the Department of Police cannot be per-se said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their testimony.

The witness-Mr. S.S. Sanvale (PW-12) admits in para-13 that he has not collected evidence to prove that Bilty was forged. He has not seized any record neither has got the documents exhibited and Exhibit-P/22 examined by hand writing expert and that he has not examined the transporter.

Learned counsel for the appellants submitted that no evidence has been collected to prove that Bilty has been forged and no transit pass at all had been acquired and that Exhibit-P/22 is a forged document.

Considered.

On considering the submissions and after perusing Exhibit-P/22, it appears that no evidence has been collected to show that the transit pass was forged. The transit pass was only for carrying fruits which had been issued by the concerned authorities. In absence of such proof, it cannot be stated that transit pass was forged. The prosecution case actually is that liquor was being transported illegally instead of fruits which alone could have been carried as per Exhibit-P/22. In absence of any evidence that the transit pass was forged, offence under Sections 467, 468 IPC cannot be found proved.

The only question, thus, now remains is whether the offence under Section 420 IPC and offence under Section 34(2) of MP Excise Act, 1915 was committed by the appellants or not ?

From the evidence of witnesses, it is found that the appellants were having transit pass for carrying boxes of fruits but were actually boxes containing bottles of liquor for which there was no explanation given by the appellants. Thus, the boxes containing liquor were sought to be passed of as boxes containing fruits, thus, there was clearly an attempt to cheat the authorities and, therefore, an offence under Section 420/511 IPC is proved beyond 8 CRA NO.2622/2019 reasonable doubt.

As far as the charge under-Section 34(2) of MP Excise Act, 1915 is concerned, learned counsel submits that the same Police Officer who registered the FIR has also investigated the case. He submits that the same Police Officer cannot investigate or record the FIR. Reference was also made to three Bench judgment of Hon'ble Apex Court in the case of Mohan Lal vs The State of Punjab in CRA No.1880/2011 in which it has held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also.

The case was perused. In this matter, FIR has been registered by Pratap Singh Solanki (PW-8), although on the spot, proceeding involving preparation of seizure memo has been performed by Sub-Inspector Mr. S.S. Sanvale (PW-12) and Investigating Officer/Sub Inspector Hirusingh Rawat (PW-11). Thus, the Investigating Officer and Officer recording the FIR are different in this case and, therefore, the submission in this regard is rejected.

Further submission is that of discrepancy with regard to preservation of sample by the Investigating Officer.

Learned counsel for the appellants has submitted that only four bottles of each type of liquor was subjected to sample test, whereas each of the seized bottle should have been subjected to test. This submission is not tenable in view of the Apex Court Judgment of Vijendrajit 9 CRA NO.2622/2019 Ayodhya Prasad Goel vs State of Bombay reported in AIR 1953 SC 247 in which it was observed by the Apex Court that it was wholly unnecessary to send all the bottles recovered for analysis.

Learned counsel submits that the bottles which were subjected to test were not sealed properly. The deposition of Excise Sub-Inspector Mr. K.K. Sharma (PW-13) was referred to, who in para-5 admits that after analysis he did not put wax seal on the bottles but he had pasted the paper slip carrying his signatures. This witness also admits in para-8 that he has not made a remark in his report that bottles were brought before him in a sealed condition and after analysis they are being received again. A perusal of Exhibit-P/27 which is a report shows that remark is printed in this report that the samples were sealed and the seal was broken and test was conducted. This remark has not been challenged. The foreign liquor which was seized was found to be filled in bottles each containing 750 ml and 180 ml respectively and the samples of same was brought before Excise Sub-Inspector Mr. K.K. Sharma (PW-13) in a sealed condition as per Exhibit-P/27 and was subjected to test. In the test, it was confirmed that the bottles contained liquor-Whiskey, thus, it is found proved that sealed bottles had contained liquor-Whiskey. After testing, not applying wax seal on the slip would not make any difference to the report of Analyst that the sealed bottle contained liquor- Whiskey. Hence, it is found that the appellants were found to be in possession and were transporting of 8942 bulk 10 CRA NO.2622/2019 litres of foreign liquor valued at Rs.52,15,968/- without having any valid licence and, therefore, appellants were rightly held guilty for committing offence under Section 34(2) of MP Excise Act, 1915.

Thus, in this appeal, the conviction of appellants under Section 467, 468 of Indian Penal Code, 1860 is set- aside. The conviction of appellants under Section 34(2) of MP Excise Act, 1915 is affirmed, whereas the conviction under Section 420 IPC is replaced with conviction under Sections 420/511 of Indian Penal Code. The appellants, thus, stands convicted under Section 420/511 of Indian Penal Code and also under Section 34(2) of MP Excise Act.

Adverting to the question of sentence, in view of the acquittal of appellants under Sections 467, 468 of Indian Penal Code, the sentence imposed by the trial Court in respect of these charges are set-aside. The quantum of jail sentence and fine imposed in respect of offence under Section 34(2) of MP Excise Act is maintained. The sentence imposed in respect of offence under Section 420 of Indian Penal Code was three years each and fine of Rs.5000/-each with default sentence, however, it has been found proved that the appellants have been convicted by this Court under Section 420/511 of Indian Penal Code. The quantum of sentence is, thus, reduced from three years of RI to two years of RI with no change in fine amount. The default sentence in respect of offence under Section 34(2) of MP Excise Act would be three months of 11 CRA NO.2622/2019 RI and in respect of offence under Section 420/511 of Indian Penal Code would again of three months of RI. This appeal is, thus, allowed in part, in above terms.

The order regarding disposal of seized liquor and vehicle by the trial Court is affirmed.

Let a copy of this order along with original record of this case be sent to the trial Court for compliance.

Certified copy as per Rules.

(SHAILENDRA SHUKLA) JUDGE Arun/-