Research › Browse › Judgment

Allahabad High Court · body

1977 DIGILAW 645 (ALL)

State v. Ram Swarup

1977-12-05

B.N.KATJU, P.S.GUPTA

body1977
JUDGMENT B. N. Katju, J. 1. The State of U. P. has filed this appeal against the judgment of III Temporary Civil and Sessions Judge, Meerut, dated 1-9-1971 allowing Criminal Appeal No. 398 of 1971 of Ram Swarup respondent against the judgment of Magistrate 1st class, Meerut, dated 5-7-1971 passed in Criminal Case No. 70 of 1971 convicting him under Section 60(A) of the Excise Act and sentencing him to a fine of Rs. 250/- and in default to undergo three month's R. I. 2. The case of the prosecution is that on 26-10-1970 at about 4.00 a.m. Ram Swarup respondent was arrested by K. D. Misra, Excise Inspector (PW 1) in Kankerkhera and 15 litres of illicit liquor was recovered from his possession. The aforesaid liquor was examined by the City Excise Inspector and was found to be 'A Grade rectified spirit'. 3. A charge sheet was thereafter submitted against the respondent Ram Swarup in the court of J. O. (E) and Magistrate 1st class, Meerut. 4. The prosecution examined two witnesses to connect the respondent with the crime, viz. K. D. Misra (PW 1) and P. N. Singh (PW 2). Raza Haider (PW 4) and Ram Swarup (PW 3) are formal witnesses, who have been produced to prove that the recovered illicit liquor which was sealed at the spot was deposited and remained at the Malkhana in a sealed condition. 5. The respondent pleaded not guilty and stated that he was implicated falsely due to enmity. Natthu Singh (DW 1) and Puran Chand (DW 2) were examined in defence. 6. The trial court, after considering the evidence on record, came to the con-elusion that the prosecution had succeeded in establishing the guilt of the respondent and convicted and sentenced him as mentioned above. The appeal of the respondent was allowed by the III Temporary Civil and Sessions Judge, Meerut, by his order dated 1-9-1971 and the conviction and sentence of the respondent were set aside. It was held by the learned Judge that even if the prosecution case be accepted no offence under Section 60 (A) of the Excise Act is made out against the respondent as possession of 15 litres of rectified spirit was not in contravention of any provision of the Excise Act or the rules made thereunder. It was held by the learned Judge that even if the prosecution case be accepted no offence under Section 60 (A) of the Excise Act is made out against the respondent as possession of 15 litres of rectified spirit was not in contravention of any provision of the Excise Act or the rules made thereunder. It has been rightly held by this Court in Government Appeal No. 98 of 1972 decided on 29-11-1976 that possession of 15 litres of rectified spirit by a person without a licence or a permit amounts to a violation of Section 20 of the Excise Act, which is punishable under Section 60 (A) of the Excise Act. The judgment of the learned Judge was, therefore, clearly erroneous. 7. We have examined the evidence on record and have come to the conclusion that the evidence of K. D. Misra (PW 1) and P. N. Singh (PW 2) is reliable. Both these witnesses supported the prosecution case regarding the arrest of the respondent on 26-10-1970 at about 4.00 a. m. in Kankerkhera and the recovery of 15 litres of illicit liquor from his possession. Both these witnesses appear to be independent and nothing was brought out in their cross-examination to demolish their testimony. It is difficult to believe that such a large quantity of illicit liquor could be planted by the Excise inspector. Their evidence also shows that the illicit liquor was sealed at the spot in four Dalda tins, (Exts. 2 to 5) and the evidence of Ram Swarup and Raza Haider (PWs 3 and 4) established that the seals were intact from the time the tins were sealed at the spot till they were deposited and remained in the Malkhana. 8. The defence of the respondent that he was taken by the Excise Inspector from the distillery at Kankerkhera at about 8 a. m. on the day of the occurrence (26-10-1970) does not inspire confidence. Pooran Chand (DW 2) who has supported the aforesaid defence of the respondent, does not appear to be reliable as it was admitted by him that he did not inform any one that the respondent was being implicated falsely. It appears that he deposed in favour of the respondent as the respondent was a temporary employee in the distillery at Kankerkhera where he was the Pump Driver. It appears that he deposed in favour of the respondent as the respondent was a temporary employee in the distillery at Kankerkhera where he was the Pump Driver. The evidence of Natthu Singh (DW 1) is of no value as it is heresay. 9. The result, therefore, is that the prosecution has succeeded in establishing the guilt of the respondent and the respondent was rightly convicted by the trial court under Section 0 (A) of the Excise Act. The sentence of a fine of Rs. 250/- awarded by the trial court does not appear to be excessive. 10. This appeal is accordingly allowed and the judgment of III Temporary Civil and Sessions Judge dated 1-9-1971, passed in Criminal Appeal No. 398 of 1971 is set aside and the respondent Ram Swarup is convicted under Section 60 (A) of the Excise Act and is sentenced to a fine of Rs. 250/-. In default of payment of fine, he shall undergo three month's R.T. Appeal allowed.