Jharkhand High Court
Mahesh Yadav Son Of Late Dudheshwar ... vs The State Of Jharkhand ... ... Opposite ... on 9 December, 2021
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 390 of 2012
Mahesh Yadav son of late Dudheshwar Yadav, resident of Village-
Bhuyandih Gwala Basti, P.O. and P.S. Sidhgora, District-East
Singhbhum ... ... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Saurav Kumar, Advocate
For the Opp. Party : Mr. Arup Kumar Dey, A.P.P.
4/09.12.2021
1. Heard Mr. Saurav Kumar, learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Arup Kumar Dey, learned counsel appearing on behalf of the opposite party-State.
3. Present revision application has been filed against the judgment dated 28.02.2012, passed by learned Sessions Judge-I, Jamshedpur in Cr. Appeal No. 241 of 2009, whereby the appeal filed by the petitioner has been dismissed.
4. The petitioner has been convicted vide judgment dated 02.09.2009, passed by learned Judicial Magistrate, 1st Class, Jamshedpur, in G.R. Case No. 2541 of 2001, arising out of Sidgora P.S. Case No. 145 of 2001, corresponding to T.R. No. 372 of 2009, whereby the petitioner has been convicted for the offence under Section 47 (a) of the Excise Act and has been sentenced to undergo rigorous imprisonment for two years with fine of Rs. 1,000/- and in default of payment of fine, he has been directed to undergo further imprisonment for one month.
5. Learned counsel for the petitioner while assailing the impugned judgments has submitted that informant of the case has not been examined and even the seizure list witnesses has not been examined in the present case. He submits that no 2 independent witness has been examined, although P.W. 2 has clearly deposed that seizure was made in presence of two independent witnesses. Learned counsel has also submitted that although the vessels/tube in which the liquor was allegedly kept at the time of seizure have been produced before the learned court below as material exhibits, but they were found empty and accordingly seizure of liquor from the vessel/tube has not been proved. He has further submitted that no enquiry was made regarding the ownership of the house where the seized liquor was kept and it has been alleged that the petitioner was found running away from the place of occurrence along with the co-accused. The learned counsel submits that the prosecution has not been able to prove the case beyond all reasonable doubt and therefore the conviction of the petitioner calls for interference in revisional jurisdiction. Without prejudice to the aforesaid submission, the learned counsel has submitted that incident is of 20.12.2001 and about 20 years have elapsed from the date of the incident. Though the petitioner has been sentenced for a period of two years, but there is minimum sentence of three months only as per the provisions of Section 47 (a) of the Excise Act. This is the first offence of the petitioner. He has also submitted that the petitioner has remained in custody for some period during trial i.e. from 20.12.2001 to 24.12.2001 and thereafter during the pendency of the present case during the period from 5.6.2012 to 15.06.2012. The learned counsel submits that considering the facts and circumstances of the case and without prejudice to the arguments of the petitioner on merit, the sentence of the petitioner be modified and limited to the period already undergone by him in custody.
6. The learned counsel appearing on behalf of the opposite party on the other hand has submitted that both the learned courts below have convicted the petitioner after considering the 3 materials on record and no case for interference is made out as there is no illegality or perversity in the impugned judgments. He submits that non-examination of the Investigating Officer of the case is not fatal to the prosecution case and the sample of seized articles were sent for examination by the Excise Inspector whose report has been exhibited as exhibit-5 which is a chemical report and it supports the prosecution case. Learned counsel has also submitted that the reason for the vessel/tube becoming empty has also been duly explained. The learned counsel submits that other witnesses including the investigating officer of the case have fully supported the prosecution case. So far as sentence is concerned, the learned counsel has submitted that the sentence passed by the learned courts below is adequate and the same does not call for any interference, but he does not dispute the fact that 20 years has elapsed from the date of the incident, present offence is the first offence of the petitioner and the minimum sentence as prescribed under the Section for which the petitioner has been convicted is three months.
7. After hearing the learned counsel for the parties, this court finds that as per the prosecution case on 20.12.2001 at about 5.40 A.M. the Sub Inspector namely Arbind Kumar Singh recorded his self-statement at police station Sidgora that he was on night patrolling along with ASI Mahendra Hazari (P.W. 2), constable namely Srikant Singh(P.W. 4), home-guards namely Surya Narayan Kanti (P.W. 3) and Ramashan Mishra (P.W. 1) and at about 5.00 A.M. near N.M.L. Chowk, got a secret information that the present petitioner and one Hotro Gagrai were in possession of country made Mahuwa liquor and were preparing to sell it. On this information, they went towards Gwala Basti and found that by seeing the police jeep, two persons came out of the house and started fleeing and they were caught in presence of independent witnesses and 4 upon enquiry they disclosed their names as Mahesh Yadav and Hotro Gagrai. It was also mentioned in the F.I.R. that the house of Mahesh Yadav was searched where one black rubber tube containing 50 litres Mahuwa liquor and a plastic jerrycan containing 10 litres of mahuwa wine were seized and they disclosed that they used to prepare and sell Mahuwa wine and such disclosure was made in presence of independent witnesses. These two apprehended persons failed to produce any valid papers and the Mahuwa wine was seized, copies of the seizure list were supplied to the accused persons and thereafter case was registered under Sidgora P.S. Case No. 145/01 dated 20.12.2001 under Section 272 and 273 of the Indian Penal Code and Section 47(a) of the Excise Act. The investigation was done by A.S.I. J. Sharma (P.W. 6). The charge sheet was submitted under Section 47 (a) of the Excise Act and Sections 272 and 273 of the Indian Penal Code and ultimately the charges were also framed under the aforesaid sections.
8. At the stage of trial, altogether six prosecution witnesses were examined. P.W. 1 is the home guard Ramashan Mishra, P.W. 2 is the A.S.I. Mahendra Hazari, P.W. 3 is the home guard Surya Narayan Kanti and P.W. 4 is home guard Srikant Singh. These four P.W.s had accompanied the informant at the time of raid as is apparent from the F.I.R. itself. P.W. 5 is the constable Mukhdeo Mahto and P.W. 6 is the Investigating officer of the case. The seizure list was exhibited as exhibit-1, written report was exhibited as exhibit-2, material exhibit challan dated 26.03.2007 was exhibited as Exhibit-3. Formal F.I.R. was exhibited as Exhibit-4. Requisition for examination of seized material was exhibited as exhibit-5. Chemical report of Excise Inspector, Jamshedpur Sadar was exhibited as Exhibit 5/1. White Colour plastic gallon was exhibited as material exhibit-I, black rubber tube was exhibited as material exhibit-II.
9. This court finds that the prosecution witnesses P.W. 2, P.W. 3, 5 and P.W. 4 had fully supported the prosecution case as when they reached the place of occurrence, they saw two persons coming from the house and tried to flee away. When they were caught, they disclosed their name Mahesh Yadav and Hotro Gagrai and upon failure to disclose any valid paper to posses the country liquor mahuwa wine, the materials were seized which was contained in white colour jerrycan and rubber tube. The seizure list was prepared and both the accused persons were arrested. These witnesses have also identified the accused persons. They have been cross examined from the side of the defence. So far as P.W. 5 is concerned, he appeared before the court with material exhibit challan dated 26.03.2007 arising out of Sidgora P.S. Case No. 185 of 2001 reproduced empty white colour plastic jerrycan and on that, Sidgora P.S. Case No. 145 of 2001, M.R. No. 31 of 2001 was written. Plastic jerrycan was exhibited as material exhibit-I. He also produced black colour truck tube on which case number and material number was also written and which was marked as material exhibit-II. He also exhibited the material exhibit challan which is in the writing of A.S.I. Upendra Oraon which was marked as exhibit-
3. Though in the cross examination he admitted that the jerrycan which was produced before the court was without the cap. P.W. 6 has also fully supported the prosecution case who has investigated the case and he has also deposed that the seizure was made in presence of two independent witnesses and he had recorded the statement of two independent witnesses and the sample of the seized articles were sent for chemical examination of the Excise Inspector and he exhibited the requisition letter as exhibit-5 and chemical report of the excise inspector as Exhibit 5/1. However, during his cross examination he has stated that he did not take any evidence regarding ownership of the house and that the seized materials were neither seen nor any mark was there. The learned trial 6 court after considering the materials on record acquitted the accused persons including the petitioner for offence under Section 272/273 of the Indian Penal Code, as the articles were not forwarded for any examination to find out as to whether they were adulterated or noxious for use. While considering the offence under Section 47 (a) of the Excise Act, the learned trial court meticulously examined all the evidences on record and recorded its finding in para-12 of the trial court's judgment. The learned trial court considered the arguments advanced on behalf of the petitioner and also recorded that in- charge Malkhana has given this report that due to rupture of tube and jerrycan illegal mahuwa wine was wasted which was entered in Sidgora Police Station Diary No. 767/2004 dated 26.03.2004 and accordingly the judgment passed by the learned trial court clearly indicates a reason for non-production of the wine itself. Certainly, the empty vessel along with the rubber tube of the truck with the case number detail etc. were duly produced and exhibited before the learned court below as material exhibits which is coupled with the fact that the prosecution also produced the report of the Excise Inspector the examination report of the samples sent to him and the power of the country made mahuwa liquor was found to be 66.08 mt. The seizure of country made mahuwa wine from the possession of the petitioner and the co-accused was duly proved and established by the persons who had accompanied the informant of the case and this court is of the considered view that non examination of the informant of the case is not fatal to the prosecution case. So far as seizure and nature of the seized liquor is concerned, the same was duly proved by the cogent evidence. This court finds that the learned trial court convicted the petitioner for the offence under Section 47(a) of the Excise Act by well-reasoned judgments and the learned trial court recorded that for the first offence, minimum 7 sentence is three months and fine is not less than Rs. 500/-. Learned Appellate Court also considered the materials on record and disposed of two appeals, one was filed by the petitioner being Cr. Revision No. 241/09 and other was filed by Hotro Gagrai being Cr. Appeal No. 228 of 2009. However, only present petitioner Mahesh Yadav has filed present revision and the learned appellate court also scrutinized the materials on record and returned concurrent finding vide para- 12 of the judgment which reads as follows:
"Para-12- On scrutiny of evidence I find that the member of the raiding party have been examined in this case who have supported raid in the house of Mahesh Yadav and seizure of country made illicit liquor in a tube of truck and in a white jerricane. Further one material exhibit white jerricane has been produced in the court though admittedly it was empty. After much elapse of time it is expected that the liquor will not remain intact. In the jerricane as it is volatile substance so the plea of defence that the material exhibit was empty and no liquor was found in it is not acceptable. Further I find that all the members of the raiding party including ASI have been examined in this case and they have all supported the fact that the accused persons were caught at the spot and on search illicit liquor in one tube of truck and in white jerricane was seized. In presence of two independent witnesses and seizure list (Ext. 1) was prepared which has been proved by the witnesses. Therefore, examination of the informant is not of much importance. Further I find that the I.O. (P.W. 6) has also been examined in this case who has also proved the P.O. and seizure of illicit liquor at the P.O. Further I find that the witnesses examined on behalf of the prosecution remained consistent in their cross examination by the defence and I find no reason to disbelieve their evidence. Therefore, in my opinion, the Ld. court below has committed no error in passing the impugned judgment and order of sentence against the appellants. Hence the impugned judgment requires no interference."
10.Considering the nature of materials proved before the learned court below and the discussions made by both the learned courts below on the point of conviction of the petitioner for the offence under Section 47 (a) of the Excise Act, this court is of the considered view that there is no perversity or illegality in the conviction of the petitioner for offence under Section 47(a) of the Excise Act. It is not in dispute that the present offence is the first offence of the petitioner and minimum sentence 8 prescribed under the provisions of Section 47(a) of the Excise Act for the first offence is three months. Considering the fact that the F.I.R. of this case was lodged on 20.12.2001 and the petitioner has faced the criminal case for about 20 years from the date of incident, this court finds that ends of justice would be served if the sentence of the petitioner is modified and reduced to minimum sentence of three months and fine is enhanced to Rs. 10,000/- to be deposited by the petitioner before the learned court below within a period of two months from the date of communication of this order to the learned court below. In case of non-deposit of the fine amount, petitioner would serve the sentence already imposed by the learned court below.
11.This Cr. Revision is disposed of with aforesaid observation and direction.
12.Pending I.A., if any, stands dismissed as not pressed.
13.Bail bonds furnished by the petitioner is hereby cancelled.
14. The lower court records be immediately sent to the learned court below.
15.Let this order be communicated to the court concerned through FAX/e-mail.
(Anubha Rawat Choudhary, J.) Binit/