Jharkhand High Court
Sunil Mahto vs The State Of Jharkhand ..... Opposite ... on 28 February, 2020
Author: Deepak Roshan
Bench: Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No.362 of 2014
1. Sunil Mahto
2. Naresh Mahto
3. Gopal Kumar Yadav
4. Suresh Kumar Nirala @ Mithilesh Prasad ..... Petitioners
Versus
The State of Jharkhand ..... Opposite Party
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner(s) : Mr.Swati Shalini, Amicus
For the State : Mr. A.K. Tiwari, A.P.P
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CAV on: 31/01/2020, Pronounced on:28/02/2020
1. The instant application is directed against the judgment dated 17.02.2014, passed by the learned Principal Sessions Judge, East Singhbhum, Jamshedpur, in Criminal Appeal No.198 of 2012, whereby the appeal preferred by the petitioners has been dismissed and the judgment of conviction and order of sentence, both dated 28.06.2012, passed by the learned Judicial Magistrate, 1 st Class, East Singhbhum, Jamshedpur in G.R.No.2142 of 2008, corresponding to T.R. No.208 of 2012, whereby the petitioners were convicted for the offence under Sections 487, 420, 272, 273/34 of the Indian Penal Code and Section 47 (a) of the Excise Act and were sentenced for Six months S.I under Section 272 of the IPC, One year S.I. for the offence under Section 487 of the IPC, Three years S.I. for the offence under Section420 of the IPC and One year S.I. for the offence under Section 47(a) of the Excise Act and the sentences were directed to run concurrently, has been affirmed.
2. The prosecution case lies in a short compass. One ASI-Adikant Mahato (informant) in his statement has stated that on the basis of secret information received on 28.09.2008, at about 5.30 a.m., that 2 in Sidhu Kanhu Basti in the house of Sunil Mahato (petitioner No.1), he along with other accused persons were running illegal country made distillation and were preparing country made Mahua wine. On the basis of such information, informant along with his patrolling team went to the house of Sunil Mahato and they found that there were several equipments for preparing the illegal Mahua wine and also found several bottles of country made Mahua wine. It has been further alleged that empty bottles were also found there including acetic acid which were being used for preparing illegal Mahua wine. All these articles were seized and thereafter the case has been instituted.
3. Thereafter, charges were framed and the petitioners pleaded not guilty and claimed to be tried.
4. The prosecution has examined altogether four witnesses in order to prove its case. It is pertinent to mention here that informant himself has not been examined and all other prosecution witnesses were the member of patrolling team.
5. Learned Amicus appearing for the petitioners submit that mere looking to the nature of allegations made in the prosecution story, it can be contended that the conviction under aforementioned sections does not arise. She further submits that even if, the entire prosecution story is considered to be true, the accused persons cannot be convicted under the aforementioned Sections. She contended that all the prosecution witnesses are the members of raiding team, hence they are highly interested witnesses and cannot be relied upon and it creates a serious doubt that the prosecutions 3 story itself is a fabricated one, which has been created just to add accolade to the service of the police officer involved in the raid. She further submits that the alleged seized articles have not been tested or examined in any laboratory by an expert, even the Investigating Officer has not been examined, which causes serious prejudice to the accused petitioners. She further submits that no independent witness has been examined so as to prove the seizure itself.
Relying upon the aforesaid submissions, the learned Amicus contended that no case is made out under Section 47(a) of Excise Act and also under the provisions of Indian Penal Code. She concluded her argument by submitting that the learned Courts below have failed to take into consideration that the conviction of the petitioners is bad in law for the reason that seized articles have not been tested or examined in any laboratory by an expert and further no any independent witness has been examined as such, this application deserves to be allowed.
6. Per-contra, the learned APP submits that preparation of illicit liquor is rampant in the area and no leniency is warranted by this Court. He further submits that there is a concurrent finding on facts as such, the instant application deserves to be dismissed.
7. Heard learned Amicus for the petitioners and learned APP for the State and perused the impugned judgments including Lower Court Records.
8. I am of the opinion that conviction under Section 47(a) of the Excise Act has no leg to stand as neither the seized articles have 4 been produced before the Trial Court nor sent for chemical examination. The record clearly transpires that the alleged seized articles have not been tested or examined in any laboratory by an expert, hence, it cannot be said that the seized articles are Mahua wine or country made liquor. There is no evidence on record to show that the prosecution witnesses had experience or expertise to find out whether any liquid was Mahua or not. Further, evidence adduced by the prosecution does not constitute firm basis to sustain the conviction of the petitioners under Section 47(a) of the Excise Act because in any case under Section 47(a) of the Excise Act, conviction can be upheld, if it is found that the prosecution has proved its case beyond all reasonable doubts by proving that the liquor has been seized from the exclusive and conscious possession of the accused. In order to prove the same the prosecution must prove the exclusive possession of such contraband by accused by independent evidence. In the instant case, there is no iota of evidence regarding the exclusive possession of the contraband article by the accused persons, in fact, there is no independent evidence with respect to seizure itself.
9. There is another aspect of the matter. It is peculiar case when the articles were seized in absence of any independent witness which is mandatory under sub-Section 4 of Section 100 of the Cr.P.C. For better appreciation of the issue, Section 100 Sub- Section 4 is quoted herein below.
"100 (4):- Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness 5 the search and may issue an order in writing to them or any of them so to do."
10. From plain reading of the aforesaid sub-section, it is clear that before making a search, the Officer or the concerned person must call two or more independent and respectable inhabitants of the locality where the place of occurrence is situated. It has also been stipulated in the aforesaid section that if no such inhabitant is available or is willing to be witness to such search then the concerned person should call independent witness from other locality, meaning thereby to say that no seizure could be made in absence of any independent witness. It appears from the record that the seizure was made by the raiding party themselves in absence of any independent witness. In my considered opinion it must be construed doubtful for the single reason that the seizure were not made in accordance with the statutory provision of Section 100 (4) Cr.P.C. The provision of aforesaid Section has been breached in the instant case, as such the burden lies on the prosecution to explain reasons for non-compliance thereof. There is no evidence to suggest that such breach has been explained by the prosecution. The prosecution has not come forward with any explanation as to why the provision of section 100 sub-Section 4 could not be complied with and the learned Trial Court has miserably failed in appreciating this lacuna in the prosecution case.
11. The Hon'ble Apex Court in the case of Yakub Abdul Razak Memon Vs. State of Maharashtra reported in (2013) 13 SCC 1 has 6 laid down the law in paragraph Nos. 352, 353, 35, 356.1 to 356.8 as under:-
"352. The primary intention behind the panchnama is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search, with or without warrant and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. The legislative intent was to control and to check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of article.
353. Panchnama is a document having legal bearings which records evidence and findings that an officer makes at the scene of an offence/crime. However, it is not only the recordings of the scene of crime but also of anywhere else which may be related to the crime/offence and from where incriminating evidence is likely to be collected. The document so prepared needs to be signed by the investigating officer who prepares the same and at least by two independent and impartial witnesses called "panchas", as also by the party concerned. The witnesses are required to be not only impartial but also "respectable". "Respectable" here would mean a person who is not disreputed. One should also check if the witnesses are in their senses at the time of the panchnama proceedings. Only majors are to be taken as witnesses as minors' witnesses may not withstand the legal scrutiny.
354. Panchnama can be used as corroborative evidence in the court when that respectable person gives evidence in the court of law under Section 157 of the Evidence Act. It can also be used as evidence of the recorded transaction by seeing it so as to refresh their memory under Section 159 of the Evidence Act.
356.1. All the necessary steps for personal search of officer (inspecting officer) and panch witnesses should be taken to create confidence in the mind of court that nothing is implanted and true search has been made and things seized were found real.
356.2. Search proceedings should be recorded by the IO or some other person under the supervision of the panch witnesses. 356.3. All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the panchnama.
356.4. The IO can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the panchnama after the signature of the main IO.
356.5. Place, name of the police station, officer rank (IO), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the panchnama.
356.6. The panchnama should be attested by the panch witnesses as well as by the IO concerned.
356.7. Any overwriting, corrections, and errors in the panchnama should be attested by the witnesses.
356.8. If a search is conducted without warrant of court under Section 165 of the Code, the IO must record reasons and a search memo should be issued."
12. In view of the aforesaid discussion and judicial pronouncements, I am having no hesitation in holding that the learned Trial Court has committed gross error in convicting the petitioners. Even the learned Appellate Court failed to ignore this 7 lacuna in the prosecution case and sustained the conviction. As such, the judgment passed by the learned Trial Court and upheld by the learned Appellate Court deserves to be set aside.
13. Consequently, the judgment dated 17.02.2014, passed by the learned Principal Sessions Judge, East Singhbhum at Jamshedpur, in Criminal Appeal No.198 of 2012 and the judgment dated 28.06.2012, passed by the learned Judicial Magistrate, 1 st Class, Jamshedpur in G.R.No.2142 of 2008 are, hereby, set aside.
14. As a result, this criminal revision application is hereby allowed.
15. The petitioners are discharged from the liability of bail bonds.
16. Let the Lower Court Record be sent to the court concerned forthwith.
17. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). She shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.
18. Let a copy of this order be communicated to the Court concerned and Secretary, Jharkhand High Court Legal Services Committee and also to the learned Amicus forthwith.
(Deepak Roshan, J.) fahim/