Madhya Pradesh High Court
Diwakar vs The State Of M.P. on 3 July, 2017
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE H.P. SINGH
Criminal Revision No.733/2003
Diwakar
Versus
State of Madhya Pradesh
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Criminal Revision No.730/2003
Mahendra Kumar Shukla
Versus
State of Madhya Pradesh
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Shri Mahendra Pateria, Advocate for the petitioners. Shri D.K. Paroha, Panel Lawyer for the respondent/State.
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(ORDER) .07.2017 This Order shall govern the disposal of aforementioned two Criminal Revisions. Since both these revisions arise out of two separate appeals of the appellate Court arose out of same judgment of trial Court and common questions are involved in these revisions, the same were heard together and are being decided by this common order.
02. These criminal revisions under Section 397/401 of the Code of Criminal Procedure, 1973, hereinafter referred to "the Code", have 2 been filed by the petitioners against the order dated 24.06.2003 passed in Criminal Appeal No.35/2002 and Criminal Appeal No.36/2002 by learned 1st Additional Sessions Judge, Satna, arising out of judgment of conviction and sentence passed by Judicial Magistrate First Class, Satna dated 01.02.2002 in Criminal Case No.27/2002, whereby the petitioners were convicted under Section 34(2) of M.P. Excise Act and sentenced to undergo rigorous imprisonment for 1 year and fine of Rs.40,000/-, with default stipulation.
03. The case of prosecution, in nutshell, is that the Excise Sub- Inspector got an information that petitioner Mahendra Kumar Shukla is transporting the illicit liquor by smuggling the same from Panna district for its sale in Satna and Rewa Districts through vehicle bearing registration No.MP-27-W/0295 (in short the "said vehicle"). The said vehicle, instead of passing through the city, was being driven through Jhali, Birsingpur, Kotar and Guiya Dam towards Madhogarh and thereafter towards Rewa. When the said vehicle reached near Goraiya curve near Neemi, its petrol exhausted on account of which the said vehicle became stationary. It is alleged that petitioner Diwakar was driving the said vehicle. Both the petitioners were waiting for dawn as it was the night time. The Excise Sub-Inspector got an information about the said suspicious vehicle, and, hence he alongwith the necessary staff reached the spot and as soon as he started the action against the accused persons, then it is alleged that both the accused 3 persons jumped down from the said vehicle and started running away but they were caught. On search of the said vehicle, 135 bulk litres of illicit country made liquor was found, for which the accused persons had no license for transportation.
04. Learned trial Court framed charges punishable under Section 34(2) of M.P. Excise Act against the petitioners, who abjured the guilt, therefore they were put to trial.
05. Learned trial Court found the petitioners guilty for the offence punishable under Section 34(2) of M.P. Excise Act and convicted and sentenced as aforesaid, against which, these appeal have been preferred. Learned Appellate Court affirmed the conviction and sentence awarded by learned trial Court, hence, this revision.
06. Learned counsel for the petitioners submits that the impugned judgments of conviction and sentence passed by learned Courts below are contrary to facts and circumstances of the case and are liable to be set aside. There are lots of contradictions and omissions in the statements of the prosecution witnesses. Prosecution has examined Investigating Officer, Sub-Inspector R.S. Pandey as PW-3 and two other independent witnesses Lallu Prasad (PW-1) and Lallu Singh (PW-
2). Both these independent witnesses have not supported the case of the prosecution. Said quantity of seized country made liquor has not been produced before the trial Court during the recording of evidence to prove that seized liquor was illicit country made liquor and to prove 4 its quantity. He further submits that the learned Courts below have not marshalled the evidence in its true and proper perspective. It is also stated that petitioners have been falsely implicated in this case on account of the annoyance of the officials of the Excise Department as they refused to give lift in the jeep for dropping them at Satna. Hence, he prays that this revision be allowed and the petitioners be acquitted in respect of the offence punishable under Section 34(2) of M.P. Excise Act.
07. Per contra, learned Panel Lawyer appearing for respondent- State has submitted that after due appreciation of prosecution evidence, the learned Courts below have rightly found the offence proved against the petitioners, hence no interference is required to be made in these revision.
08. So far seizure of said 135 bulk litres of country made liquor is concerned, Investigating Officer R.S. Pandey (PW-3) has stated that on the information of informer, he alongwith two independent witnesses and other staff reached on the spot. At that time, petitioners were present in that jeep. He searched the said jeep in presence of two independent witnesses Lallu Prasad (PW-1) and Lallu Singh (PW-
2). He prepared search panchnama (Ex-P-1) and seizure memo (Ex-P-
2) before the witnesses. He prepared examination report (Ex-P-3), spot map (Ex-P-4), which were signed by him and the witnesses present at the spot. But independent witnesses Lallu Prasad (PW-1) and Lallu Singh (PW-2) have not supported the statement of the 5 Investigating Officer R.S. Pandey (PW-3). They have stated that they do not know the petitioners/accused persons. They have accepted that they had signed Ex-P-1 to Ex-P-5 but they do not know that what has been seized by the Excise Officer. They have signed the memo on the direction of the Excise Officers and turned hostile. They have also been cross-examined by ADPO at length, but nothing has come on record which can support the case of the prosecution. In this way, both the aforesaid witnesses have not supported the case of prosecution regarding seizure of illicit liquor.
09. However, it is settled principle of law that even though the independent witnesses in such type of cases for one reason or the other do not support the prosecution case, that cannot be an only ground to discard the prosecution case in toto. On the other hand, if the statements of the Investigating Officer relating to search and seizure are found to be cogent, reliable and trustworthy, the same can be acted upon to adjudicate the guilt of the accused. The Court will have to appreciate the relevant evidence in light of other evidence produced before the Court and determine whether the evidence of Investigating Officer is believable, after taking due care and caution in evaluating his evidence. From the evidence produced by prosecution before the trial Court, it reveals that at the time of producing and recording the evidence of prosecution before the trial Court, the seized illicit liquor has not been produced before the trial Court, which was not produced before the trial Court, so as to connect it with the case. 6 In this way, said seized liquor had neither been produced nor marked as article, which ought to have been done. There is no material on record to indicate that the property was produced before the trial Court at any point of time of trial or recording of evidence or even during the pendency of case. There is, also, no evidence on record which can establish that the seized property has been disposed of as per provisions of law. The defence also did not insist during the trial that said commodities should be produced. Trial Court had also not taken due care about these facts. In my considered view, it cannot be said that non-production of material object was a mere procedural irregularity and did not cause prejudice to the accused/petitioners.
10. As discussed above, it is emerged that the prosecution has failed to produce the seized property during the course of recording of statements of prosecution witnesses to establish its identity, quantity and authenticity as well as truthfulness of seizure, sealing and pasting of slips containing signature of panch witnesses as well as the Excise officials and accused persons. Production of seized property was also very necessary in this case because as reflects from the statements of the independent witnesses. Lallu Prasad (PW-1) and Lallu Singh (PW-
2) are the witnesses of search panchnama, seizure panchnama, testing panchnama, who have not supported the case of the prosecution and became hostile. In the facts and circumstances of the case, non-production of seized illicit liquor in the Court is fatal to the prosecution and same causes serious prejudice to the defence. It is 7 well settled law that when best evidence is available, the same should have been produced before the Court for purpose of marking articles.
11. In view of the above discussion, taking the cumulative effect of facts and the circumstances, it appears to me that material placed on record by the prosecution does not bring home the charge beyond reasonable doubt. I am of the considered view that upon the material placed on record, it would be unsafe to convict the petitioners/accused for the aforesaid offence. They are certainly entitled to benefit of doubt.
12. In the result, I allow the revision, set aside the judgment of trial Court dated 01.02.2002 as well as appellate Court dated 24.06.2003 and quash the conviction of the petitioners.
13. Petitioners/accused persons are acquitted from the charges.
14. Office is directed to send a copy of this order to the trial Court alongwith the record for information and necessary compliance.
(H.P. Singh) Judge GT