Criminal Appeal No. 29 of 2014 · The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 1018 of 2017 Most. Manju Kuer @ Manju Kuar --------- The State of Jharkhand Versus ..… Petitioner ….. Opp. Party ---------- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD --------- For the Petitioner : Mr. Anurag Kashyap, Advocate For the State For the O.P. No. 2 : Mr. Pallav Kumar, Advocate : Mr. Subodh Kumar Dubey, A.P.P. --------- ORAL ORDER IN THE COURT 08/23.11.2023 This Criminal Revision Application has been filed by the petitioner challenging the judgment dated 15th June, 2017 passed in Criminal Appeal No. 29 of 2014 passed by Shri Md. Nasiruddin, Additional Sessions Judge-IV, Palamau at Daltonganj, by which the appeal preferred on behalf of the petitioner has been dismissed by affirming the conviction of the petitioner under Section 47 (a) of the Excise Act but reduced the sentence from S.I. for two years to S.I. for one year, although Shri Vishwa Nath Shukla, learned Addl. C.J.M., Palamau at Daltonganj vide judgment dated 30th April, 2014 passed in G.R. Case No. 1728 of 2008, T.R. No. 35 of 2014, has convicted the petitioner for the offence under Section 47 (a) of the Bihar Excise Act and sentenced her to undergo S.I. for a period of two years and to pay the fine amount of Rs.3,000/-. However, the learned Additional Chief Judicial Magistrate, Palamau at Daltonganj has acquitted the petitioner for the 2 offences punishable under Section 270 and 272 of the I.P.C. 2. As per F.I.R., the informant namely K.K. Rai, S.I.-cum-Officer-in-Charge, Hariharganj P.S. had conducted raid in presence of several persons and police personnels in the house of the Petitioner Manju Kuer after receiving secret information and had recovered 100 litre of Mahua liquor in green coloured plastic Jariken and 25 litre Mahua liquor also in a gallon and accordingly, a seizure list was prepared in presence of independent witnesses, namely Govind Kumar and Ajay Ram. 3.
Legal Reasoning
Heard Mr. Anurag Kashyap, learned counsel for the petitioner, assisted by Mr. Pallav Kumar, Advocate and Mr. Subodh Kumar Dubey, learned A.P.P. on behalf of the State. 4. Learned counsel for the petitioner submitted that the impugned judgments and order passed in the learned Courts below are illegal, arbitrary and not sustainable in the eye of law. It is submitted that the petitioner has committed no offence. It is submitted that two seizure list witnesses, namely Govind Kumar and Ajay Ram, who had been examined as P.W. 1 and P.W. 2 respectively, have not supported the prosecution case and have stated that nothing was sealed in their presence. It is submitted that P.W. 3, P.W.4 and P.W.5, namely Ramgati Pal, Ram Murti Choudhary and Rajesh Kumar are police personnels. It is submitted that even the report of seized Mahua wine from the F.S.L., was not brought on record and as such it is not proved that the sealed 3 article was Mahua wine. It is submitted that the I.O. and informant have not been examined. It is submitted that alleged Mahua was seized on 07.10.2008 and it was sent for F.S.L. examination on 18.10.2008 and as such sending of the Mahua to the F.S.L. is also doubtful as it cannot be said to be in the safe custody of the police. It is submitted that the Malkhana Register had also not been produced regarding the seizure of Mahua. It is submitted that the Courts below have committed grave error in convicting the petitioner for the offence under Section of the 47 (a) of the Excise Act and hence this Criminal Revision Application may be allowed. 5. On the other hand, learned A.P.P. has submitted that the impugned judgments and order passed by the Courts below are fit and proper and no interference is required. It is submitted that during course of search of the house of the petitioner, 125 litre Mahua was seized. It is submitted that Seizure List witnesses, i.e. P.W. 1, namely Govind Kumar and P.W. 2, namely Ajay Ram have proved their signature on the seizure list though they have denied the recovery of any material and hence the P.W. 1 and P.W. 2, during their evidence, have fully supported the prosecution case. It is submitted that P.W. 3, P.W.4 and P.W. 5, namely Ramgati Pal, Ram Murti Choudhary and Rajesh Kumar respectively are the members of the raiding party and they have also supported the recovery of the materials from the premises of this petitioner, however, the learned A.P.P. could not controvert that the report of the seized 4 material was not proved by the prosecution. It is submitted that even if the report of F.S.L. was not proved the same is not fatal for the prosecution. Hence this revision is devoid of merit and may be dismissed. 6. Perused the Lower Court Records of this case and considered the submission of both the sides. 7. It transpires that the police conducted raid in the premises of the petitioner on 07.10.2008 and had recovered 125 litres of Mahua wine from the premises of the petitioner in presence of two independent witnesses, namely Govind Kumar and Ajay Ram and in presence of several other persons. 8. It transpires that the police, after investigation, submitted chargesheet against the petitioner on 22.11.2008 for the offence under Section 270, 272 of the I.P.C. and Section 47 (a) of the Excise Act. 9. Thereafter, after supplying police papers to the petitioner and one Butu Singh, the charges were framed under Sections 270, 272 of the I.P.C. and Section 47 (a) of the Excise Act against the petitioner and one Butu Singh on 06.8.2009 by Shri Satyapal, the then Judicial Magistrate, Palamau and to which they pleaded not guilty and claimed to be tried. 10. During trial, the prosecution has examined five (05) witnesses, who are as follows:- (i)P.W.1 is Govind Ram (ii)P.W. 2 is Ajay Ram (iii)P.W. 3 is Ramgati Pal, Security Guard (iv)P.W. 4 is Ram Murti Choudhary, Hawaldar and (v) P.W. 5 is Rajesh Kumar, Constable 5 11. The prosecution has got marked following documents as exhibits:- (i) Ext. 1 and 1/A are signature of P.W.1- Govind Kumar and L.T.I. of P.W.2-Ajay Ram, (ii) Ext. 2 is the entire Written Application, (iii) Ext. 3 is the search and seizure list, (iv) Ext. 4 is the report submitted by the Police, (v) Ext. 5 is the application submitted by Shri Brahmdeo Prasad Singh, I.O. to the Excise Superintendent for verification of the seized articles and submitting test report. (vi) Ext. 6 is the application submitted by the I.O. to the learned C.J.M. for sending the seized Mahua for its test. 12. Thereafter, the petitioner was examined under Section 313 Cr.P.C. on 23.04.2014, who denied the circumstances put forth before her. 13. It appears that neither any defence witness has been examined nor any document has been exhibited by the defence. 14. Thereafter, Mr. Bishwanath Shukla, the learned A.C.J.M., Palamau at Daltonganj has convicted the petitioner for the offence under Section 47 (a) of the Bihar Excise Act and sentenced her on different counts as mentioned earlier, although the learned Addl.C.J.M., Palamau at Daltonganj has acquitted the petitioner for the offences under Section 270 and 272 of the I.P.C. 6 15. However, the learned Appellate Court has also dismissed the appeal by modifying the sentences, hence the present Criminal Revision Application has been filed. Therefore, the appreciation of the evidence of witnesses is necessary. 16. P.W. No. 1, i.e. Govind Ram, is the Seizure List witness, who has stated during his evidence that he has put his signature on the seizure list prepared by the police on the instruction of police. However, during cross-examination he stated that nothing was seized during his presence and he had put his signature on the instruction of the police and nothing has been seized during his presence from the house of the petitioner. Thus, P.W. 1-Govind Kumar has not supported the prosecution case. However, P.W.1 has not been declared hostile, hence, evidence of P.W. 1 is not reliable. 17. Similarly, P.W. No. 2, namely Ajay Ram has also stated that he has put his L.T.I. on the seizure list on 07.10.2008, i.e. on the date of occurrence. However, during cross-examination he stated that nothing was seized during his presence and he put his L.T.I. on the instruction of police. Thus, it is evident that P.W. 2 has also not supported the prosecution case and although he has also not been declared hostile, but the evidence of P.W. 2 is also not reliable. 18. P.W.3 is Ramgati Pal, who is the Reserve Guard and stated during his evidence that he 7 along with Officer-in-Charge-K.K. Rai, and Brahmdeo Prasad Singh, A.S.I. and other police personnel had conducted raid in the premises of this petitioner and 100 litre of Mahua wine was recovered from the premises of the petitioner. However, the independent witnesses, P.W.1 and P.W. 2 had not supported the evidence of this P.W.3, who is a member of the raiding party, hence, his evidence is not reliable, as he is an interested witness. 19. Similarly, P.W.4 is Ram Murti Chowdhary, Hawaldar, who has also supported the prosecution case on the point of recovery of 125 litre of Mahua wine. This witness further proved Ext. 2, Ext.3, Ext.4, Ext.5 and Ext.6, i.e. the written report, the Search-cum-Seizure list, report for search of the informant himself, application dated 18.10.2008 sent for examination of the Mahua liquor and application dated 18.10.2008 addressed to the C.J.M. for permission to send the Mahua liquor for test respectively. However, the said recovery have been contradicted from the evidence of P.W. 1 and P.W. 2 and apart from this the prosecution tried to prove the documents marked Ext.2 to Ext. 6 through him which was also not proper. 20. P.W.5 is Rajesh Kumar, who is a Constable and he has also supported the prosecution case on the point of recovery of 125 litre of Mahua wine from the house of the petitioner but his evidence 8 also contradicted by the evidence of P.W. 1 and P.W.2 also. 21. Section 81 and 82 of the Jharkhand Excise Act, 2000 is quoted below: “Section 81:- Custody by police of articles seized.- (1) All officer-in-charge of police stations shall take charge of and keep in safe custody pending the orders of a Magistrate, or of the Collector, or of an Excise Officer empowered under section 77, sub-section (2), to investigate the case, all articles seized under this Act which may be delivered to them and shall allow any Excise Officer who may accompany with articles to the police-station or who may be deputed for the purpose by an official superior, to affix his seal to such articles and to take samples of and from them. (2) All samples so taken shall be sealed with the seal of the officer-in-charge of the police-station. Section 82:- Reports of arrests, seizures and searches.- When any Excise Officer below the rank of Collector, or any officer-in-charge of a police-station, makes, or receives information of any arrest, seizure or search under this Act, he shall, within twenty four hours therefore, make a full report of all the particulars of the arrest, seizure, or search, or of the information received to the Collector, and to the Excise Officer (if any) empowered under section 77, sub-section (2), within the local limits of whose jurisdiction the arrest, seizure, or search was made.” 9 22. Section 47A and Section 55 of the Jharkhand Excise Act is quoted below:- “Section 47 A:-Penalty for offences committed by any Company.- Where any office punishable under this Act is committed by a Company, and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any Director, Manager, Secretary, Agent, Officer or person concerned in the management of the Company, such Director, Manager, Secretary, Agent, Officer or person concerned, shall be liable to be proceeded against and punished accordingly. For the purpose of this Section- (a) Çompany’ means a body corporate and includes a firm or other association of individuals; and (b) ‘Director’ in relation to a firm means a partner of the firm.” Section 55:- Penalty for possession of liquor in respect of which an offence has been committed.- Whoever, has in his possession, any liquor, knowing or having reason to believe the same to have been unlawfully imported, exported, transported, manufactured, or knowing or having reason to believe that the prescribed duty has not been paid thereon, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less then fifty thousand rupees but which may extend to 10 one lakh rupees or ten times of the value of liquor, whichever is higher.” 23. It is further evident that informant-K.K. Rai and I.O.-Brahmdeo Prasad Singh have not been examined by the prosecution and thus, serious prejudice has been caused to the petitioner due to non-examination of the Informant as well as the I.O. of this case. 24. It further transpires from the seizure list, marked as Ext. 3 that though the signature of P.W. 1-Govind Kumar and L.T.I. of Ajay Ram is there, but it does not contain the signature of petitioner Most. Manju Kuer @ Manju Kuar and hence Ext.3 cannot be relied upon. Thus, in absence of supplying the copy of the seizure list and absence of signature of the petitioner Manju Kuar on the seizure list, the recovery of 125 litres of Mahua wine from the premises of the petitioner has also not been validly proved. Moreover, the Informant and the Investigating Officer have also not been produced by the prosecution and thus, the prosecution case is not supported by the informant and the Investigating Officer. 25. Ext. 4 is another seizure list showing recovery of Rs.150/- and Rs.50/-in cash during the search of the informant K.K. Rai and I.O. Brahmdeo Prasad Singh respectively and even the said seizure list was not supplied to the petitioner & hence, Ext. 4 cannot be relied upon. 26. It further reveals from Ext. 6 that the I.O. had taken permission from the learned C.J.M., 11 Palamau at Daltonganj for sending the 125 litres of seized wine for its test report, which is kept in the premises of the police station. Thus, it is evident that neither the seized liquor nor the sample of the seized liquor has been produced before the Court below on the date of lodging the F.I.R., i.e. on 07.10.2008. Thus, Ext. 6 reveals that the seized material was kept in the police station 27. Ext. 5 is the application submitted by the I.O. before the Excise Commissioner for obtaining the test report of the seized articles. Therefore, it is evident that prosecution has failed to produce the report of the liquor allegedly seized from the premises of the petitioner. 28. It further transpires that the prosecution has failed to prove the report in terms of Section 81, 82 of the Jharkhand Excise Act, 2000. 29. It further transpires that charges were wrongly framed under Section 47 A of the Bihar Excise Act, although Jharkhand Excise Act, 2000 was applicable on the date of lodging of the F.I.R. and on the date of framing of charges by the learned Court below. 30. Considering the several inconsistencies in the investigation in this case and failure on the part of the prosecution to prove its case on the point of recovery of liquor in the presence of independent witnesses and non-examination of the informant and the Investigating Officer, this Court is of the view that the prosecution has miserably failed to prove its case. 12 31. In view of the discussions made above and on the facts and in the circumstances of the case, judgment dated 15th June, 2017 passed in Criminal Appeal No. 29 of 2014 and judgment dated 30th April, 2014 passed in G.R. Case No. 1728 of 2008, T.R. No. 35 of 2014 and order dated 30th April, 2014 are set aside in the interest of justice and the petitioner, namely Most Manju Kuer @ Manju Kuar is acquitted of the charges under Section 47 (a) of the Bihar Excise Act and she is also discharged from the liability of her bail bonds. 32. Thus, this Criminal Revision Application is allowed. Let a copy of this judgment be communicated to the learned Court below forthwith along with Lower Court Records of the case by the Office. s.m. (Sanjay Prasad, J.)