Andhra HC (Pre-Telangana)
Ramisetty Venkateswara Rao vs State on 31 March, 2004
Equivalent citations: 2004(1)ALD(CRI)918, 2004CRILJ3266
ORDER C.V. Ramulu, J.
1. This Criminal Revision Case is filed against the Judgment dated 18-4-2000 in Criminal Appeal No. 156 of 1997 on the file of the First Additional Sessions Judge, Guntur, wherein the conviction recorded under Section 7 read with 8(b) of the Andhra Pradesh Prohibition Act, 1995 and sentence imposed against the petitioner-accused to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for a period of forty days by the trial Court i.e. Court of Special Judicial First Class Magistrate (Prohibition and Excise), Guntur in C. C. No. 12 of 1996, dated 30-6-1997 was confirmed.
2. The case of the prosecution, in brief, is as under :
On 30-3-1995, P. W. 2 the then Sub-Inspector of Police, Prohibition and Excise, Tenali along with P.W. 3 the constable of the department and other staff found the accused near R.T.C. bus stand, Tenali loitering in suspicious circumstances. The accused was apprehended. The attempt made to secure independent mediator was not successful. The accused was subjected to search by P.W. 2 with the help of other excise officials and found four brandy bottles of 750 ml., each. They also found brandy bottles 350 ml., in possession of the accused and all the bottles contained the seals of 'McDowell company' which manufactures the contents of the bottles. The bottles, which are M.Os. 2 to 6, showed that they were for sale in Tamil Nadu. P.W. 2 took one of the bottles 750 ml., i.e. M.O.5 as a sample. He also drew M.O.6 as a sample. Identification slips were pasted and the accused was arrested under a cover of special report under Ex. P. 2. M.O. 1 Zip bag in which M.Os. 2 to 6 were found being carried by the accused. Therefore, a charge under Section 7 read with 8(b) of A. P. Prohibition Act, 1995 was made.
3. The complainant examined P.Ws. 1 to 3 and marked Exs. P. 1 to P. 5 and M.Os. 1 to 6. On behalf of the defence, none was examined and no documents were marked.
4. The plea of the defence was one of total denial.
5. The trial Court on appreciation of the oral and documentary evidence placed before it, found as follows :
"According to P.W. 3, the bag found with the accused is in black and white spots and as per the evidence of P.W. 2, there some correction with regard to these spots in Ex. P2 Special Report. I have examined M.O. 1 bag. In fact, neither white scars nor white spots are there on the bag. The bag became too old to appear as there are some white dots on the bag. Except this, there are no white spots or scars on the bag. This is not at all a material discrepancy and it is not also even a minor discrepancy. Even if it is taken into account as submitted by the learned counsel, that the said correction is a discrepancy, there are number of decisions of the Superior Courts to the effect that minor discrepancies can be ignored. To cite one, in Bhogin Bai v. State of Gujarat, , it is observed that the discrepancies which do not go to the root of the matter and do not shake the basic version of the witnesses cannot be annexed with undue importance.
In the evidence P.W. 3 who is Prohibition and Excise Constable said in the chief-examination that they have found four Mc.Dowell whisky bottles 750 ML each and one Mc.Dowell whisky bottle of 375 ML capacity in the bag of the accused. However, in the late part of his chief-examination he stands corrected and deposed that the bottles seized are Mc.Dowell Brandy bottles and not Mc.Dowell whisky bottles. Thus, even though at the outset P.W. 3 said that the bottles seized are whisky, at a later part he corrected himself and said that they are brandy bottles. This is also a minor discrepancy, on the basis of which prosecution case cannot be thrown out. As a matter of principle it is laid down in Surendra v. State of Orissa, 1977 Cri LJ 192 (sic) that in criminal trial, slight discrepancies even in the evidence of the eye witness is not material. P.W. 3 has identified the bottles and bag to be those which were recovered from the accused. P.W.2 has also identified the property seized from the accused and they were marked as M.Os. 1 to 6.
Thus, the facts and circumstances of the case as well the evidence on record prove that the prosecution was successful in bringing home the guilt of the accused beyond any reasonable doubt. Therefore, the accused is found guilty."
6. Being aggrieved by the said finding, the accused filed Criminal Appeal No. 156 of 1997 before the 1st Additional Sessions Judge, Guntur. The appellate Court found that the evidence of P.W.2 is not only water tight, but also completely corroborated with the evidence of P.W. 3 and apparently there were no reasons to P.Ws. 1 to 3 to implicate the accused unless the accused has committed the offence. Ex. P. 1 chemical analysis report reveal that the sample bottles contained 'Indian made foreign liquor' and therefore, the conviction and sentence recorded by the Court below are confirmed and upheld. Aggrieved by the same, the present revision petition is filed by the accused.
7. The learned counsel for the revision petitioner/accused submitted that, at the very outset, the allegations made by the prosecution that the accused was apprehended by the police people under suspicious circumstances and on search conducted by P.W.2, four bottles of 750 ml., were found. Thereafter in the evidence, it is stated that they were taken out from zip bag. Therefore, there is no consistency in the story of the prosecution. Further, it is stated that the accused was aged about 24 years and he has promising life before him and any harsh punishment would spoil his life. He also further submitted that it all happened when there was a policy of the Government that possessing of such liquor was an offence under the A.P. Prohibition Act, which was thereafter, taking pragmatic situation into consideration, the legislation has repealed the said provision and now it is not an offence, therefore, a lenient view can be taken. Such a submission cannot be accepted, since the law, which requires to be applied, is the law as on the date of offence and not thereafter.
8. The Courts below concurrently found that the evidence of PW-1 corroborated with the evidence PWs-2 and 3 and there are no reasons for PWs-2 and 3 to implicate the accused, unless the accused has committed the offence. That apart, in Ex.Pl-analysis report it is stated that the sample bottles contained Indian Made Foreign Liquor. Considering the entire evidence, both the trial Court as well as the appellate Court categorically held that the prosecution could connect the petitioner/accused to the offence under Section 7 read with Section 8(b) of the Act and in my opinion, rightly so. Hence, the conviction recorded by the Courts below against the accused under Section 7 read with Section 8(b) of the Act is confirmed.
9. At this stage, learned counsel for the appellant-accused submits that by invoking Section 4 of the Probation of Offenders Act, 1958 (for short 'the Act'), the appellant may be released on furnishing a bond to be of good behaviour. He also submitted that the learned Sessions Judge declined to invoke either the provisions of Section 360 of the Code of Criminal Procedure or Section 4 of the Act on the ground that the appellant-accused involved in an excise offence.
10. In order to appreciate the said contention, it is apt to extract Section 4 of the Act.
"Section 4 : Power of Court to release certain offenders on probation of good conduct--
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of, the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour :
Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place or abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under subsection (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
(4) The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicating or any other matter as the Court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender".
(5) The Court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."
11. The intendment of the above Section seems to be the same as that of Section 360 of the Code of Criminal Procedure, as the language used in both the provision is almost identical. The non-obstante clause in the above provision is a clear manifestation of the intention of the legislature that the provisions of the Act can be applied notwithstanding any other law for the time being in force. The said provision is intended to be used to prevent young persons from being committed to jail, where they may associate with hardened criminals, who may lead them further along the path of crime and to help even men of more mature years, who for the first time may have committed crimes through ignorance or inadvertence or the bad influence of others and who, but for such lapses, might be expected to make good citizens. In such cases, a term of imprisonment may have the very opposite effect to that for which it was intended. Such persons would be sufficiently punished by the shame of having committed a crime and by the mental agony and disgrace that a trial in a criminal Court would involve.
12. Section 4 of the Act is applied when the conviction was for an offence punishable with imprisonment for not more than seven years in case of a person not under twenty-one years of age or an offence not punishable with death or transportation in case of a person under twenty-one years of age or a woman of any age. Under sub-section (1) of Section 4 of the Act any person irrespective of age or sex whether first offender or a habitual offender is eligible to probation in respect of practically all offences excepting those punishable with death or imprisonment for life. There is no reason for reading a restriction into this section as regards the nature of offences. The section does not show that it is applicable only to offences under particular enactments. Even the A. P. Prohibition Act or the Rules framed under the said Act do not prohibit application of the provisions of the Probation of Offenders Act to the said enactments. Hence, there is no reason why the benefit of this section cannot be extended to the offences under the Andhra Pradesh Prohibition Act, 1995. However, before the said Section could be applied, the Court should consider the age, character, antecedents, physical and mental condition of the offender and the circumstances in which the offence was committed. The said view is fortified by the decisions referred to infra.
13. A five-Judge Bench of the Apex Court in Musakhan v. State of Maharashtra, held as under :
The Probation of Offenders Act is a social legislation, which is meant to reform juvenile offenders so as to prevent them from becoming hardened criminals by providing an educative and reformative treatment to them by the Government. Unfortunately, though the provisions of Section 6 thereof are mandatory, the Courts do not appear to make wise use of these provisions, which is necessary to protect the younger generation from becoming professional criminals and therefore, a menace to the society".
14. In Ammini v. State of Kerala, 1981 Cri LJ 1170 the Kerala High Court held that the Abkari Act does not contain any provision prohibiting the use of the probation principles to an offender convicted under the provisions of that Act and directed the release of the accused therein, who was convicted for the offence under Section 55 of the Abkari Act, invoking the provisions of the Probation of Offenders Act.
15. In Satar Masiah v. State, 1982 Cri LJ 2246 the Delhi High Court held that the Probation of Offenders Act can be applied to the persons convicted under the Punjab Excise Act and ordered to release the accused therein, who was an young man with no prior shady antecedents.
16. In Inderjit v. State of Punjab, 1976 Cri LJ 1327 a learned single Judge of Punjab and Haryana High Court held that the Probation of Offenders Act is meant for the offenders in whose case, there is likelihood of some reformation, but where the accused are found to be dealing on a large scale in the anti-revenue and illegal activity, it is not a fit case to release the accused under the provisions of the Probation of Offenders Act. The said case arose out a conviction under Sections 61, 63 and 75 of the Punjab Excise Act. From this decision, it is clear that the Probation of Offenders Act can be applied to the excise offences, but when the seized quantity of liquor is large, then the Act cannot be applied.
17. For the aforesaid reasons, I am of the considered view that Section 4 of the Act or Section 360 of the Code of Criminal Procedure can be invoked for the offences under the A.P. Prohibition Act, 1995. However, when large quantities of liquor were seized from the accused, the said provisions cannot be invoked for the release of the offender. In the circumstances, the finding of the learned Sessions Judge that the Act cannot be applied to the excise offences is not sustainable.
18. Be that as it may, since Section 360 of Cr.P.C. itself takes care of the situation and in view of the fact that the appellant-accused is young in age and has no shady antecedents and as the quantity of liquor seized from his possession was also neligible, he shall be released on probation of good conduct on his furnishing a bond in a sum of Rs. 5.000/- to the satisfaction of the trial Court viz., Special Judicial First Class Magistrate (Prohibition and Excise), Guntur that he shall appear and receive sentence within a period of one year, if and when called upon to do so by the Court concerned and in the meantime, he shall keep the peace and good behaviour.
19. The Criminal Revision case is allowed to the extent indicated above.