State of Rajasthan v. Bhanwar — 1982 DIGILAW 359 (RAJ)

S.C. AGRAWAL, J. —This reference has been made by the Judicial Magistrate First Class, No. 2 Sriganganagar, under section 318 of the Code of Criminal Procedure, 1973. 2. Accused Bhanwar the opposite party in this reference, alongwith accused Maniram, was prosecuted before the Judicial Magistrate in respect of offence under section 19/54 of the Rajasthan Excise Act, 1950, (hereinafter referred to as "the Act."). 3. The case of the prosecution was that on February 9, 1978, at about 11.40 a.m. Shri Dwarka Prasad, (PW 4), Excise Inspector, Shri Ganganagar, made a search of a house in Ward No. 27/28, Shaktinagar, in Shri Ganganagar, and on entering into the said house they found a gunny bag containing 22 bottles containing a liquid in one room. The said bottles were seized and the sample of the liquid contained in the said bottles was taken from four bottles and the said samples on chemical examination were found to contain alcohol. The aforesaid 22 bottles were recovered in the presence of accused Bhanwar. After investigation the police filed a challan against the accused persons, viz. Bhanwar and Maniram. 4. Accused Bhanwar is deaf and dumb and at the time of framing of the charge the judicial Magistrate recorded that the said accused is unable to hear and understand the proceedings because he is deaf and dumb. The charge was therefore, framed through his advocate Shri Bhagirath Singh, who pleaded not guilty. 5. The prosecution, in support of its case examined four witnesses viz. Kishan Lal (PW1), Ram Narain (PW 2), Ram Singh (PW 3), and Dwarka Prasad (PW 4). Kishan Lal (PW 1) and Ramnarain (PW 2) are the witnesses of the recovery of the 22 bottles from the house. Premsingh (PW 3) was posted as Jamadar with the Excise Preventive Force and had accompanied Shri Dwarka Prasad (PW 4) Excise Inspector, at the time when the search was conducted in the house and the 22 bottles containing illicit liquor were recovered. 6. While examining accused Bhanwar under section 313 Cr.P.C. the Judicial Magistrate has recorded that accused Bhanwar is deaf and dumb and does not understand anything and therefore, statement on his behalf was given by his advocate. 7. 6. While examining accused Bhanwar under section 313 Cr.P.C. the Judicial Magistrate has recorded that accused Bhanwar is deaf and dumb and does not understand anything and therefore, statement on his behalf was given by his advocate. 7. The Judicial Magistrate, by his judgment dated May 3, 1982, acquitted accused Maniram on the ground that accused Maniram was not present in the house at the time when the search was made and the possibility could not be excluded that the liquor was brought in the house during the absence of accused Maniram. According to Judicial Magistrate there was no evidence to connect accused Maniram with the illicit liquor that was recovered from the house and it cannot be said that accused Maniram was aware of the presence of the 22 bottles of liquor in the house. The Judicial Magistrate, has, however, convicted accused Bhanwar of the offence under section 54(a) of the Act on the view that accused Bhanwar was present at the time when the search of the house was made and 22 bottles containing illicit liquor were recovered and that from the aforesaid circumstance it is established that accused Bhanwar was in conscious possession of the aforesaid 22 bottles containing illicit liquor. After recording the aforesaid conviction the Judicial Magistrate has made this reference to this Court under section 318 Cr.P.C. on the ground that accused Bhanwar, being deaf and dumb, was unable to understand the proceedings. 8. I have heard the learned Public Prosecutor and Shri B.R. Arora, the learned counsel for the accused. 9. Section 318 Cr.P.C. provides as under:— "If the accused, though not of unsound mind, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial, and in the case of a Court other than a High Court, if such proceedings result in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit." 10. The aforesaid provisions prescribe that in cases where the accused is not of unsound mind but he cannot be made to understand the proceedings, the Court can proceed with the enquiry and trial and in cases where the court happens to be a court other than the High Court, the proceedings must be forwarded to the High Court with the report of the circumstances of (he case if the proceedings result in a conviction and the High Court may pass such order as it thinks fit. This would mean that in a case where reference is made to it under section 318 Cr.P.C. the High Court would be entitled to examine the proceedings of lower court for the purpose of determining whether the trial has been fairly conducted and also for the purpose of determining as to whether on the basis of the record the finding of conviction recorded by the court below can be sustained. 11. On a perusal of the proceedings of the Judicial Magistrate I find that the Judicial Magistrate, while examining accused Bhanwar under section 313 Cr. P.C. has recorded that the accused, being deaf and dumb, is unable to understand anything and the Judicial Magistrate has recorded the statement of the counsel for the accused. In my opinion the aforesaid procedure adopted by the judicial Magistrate cannot be said to be correct. In case where the accused happens to be deaf and dumb and as a result is unable to understand and answer the questions that are put by the Court during the course of examination under section 313 Cr.P.C. the Court may examine the counsel for the accused only in those cases where the counsel is in a position to interpret the proceedings to the accused and ascertain reply of the accused In the present case there is nothing to show that the counsel for the accused was in a position to interpret the proceedings to the accused and therefore, the Judicial Magistrate has committed an error in recording the statement of the counsel for the accused on behalf of the accused under section 313 Cr.P.C. 12. The next question which arises for consideration is whether in the facts and circumstances of the case the conviction of accused Bhanwar for the offence under section 54(a) of the Act can be upheld. 13. The next question which arises for consideration is whether in the facts and circumstances of the case the conviction of accused Bhanwar for the offence under section 54(a) of the Act can be upheld. 13. Under section 54(a) of the Act possession of an excisable article in contravention of this Act or of any rule, or order made or of any licence, permit or pass granted, thereunder has been made punishable with imprisonment for a term which may extend to three years and a fine which may extend to two thousand rupees. The law is well settled that in order that a person may be punished for an offence under section 54(a) of the Act it is necessary to show that he was in conscious possession of the excisable article. 14. In the present case the prosecution has examined Kishan Lal (PW 1) and Ram Narain (PW .2), the attesting witnesses of the recovery place (Ex, P. 1) relating to the recovery of 22 bottles on the search of the house. Kishanlal (PW 1) has stated (that at the time when the search was made both the accused persons were not present in the house and the accused Bhanwar Singh had arrived shortly after the search had been made. The said witness has also stated the accused Maniram occasionally stays in the said house and that Khet Singh, the father of accused Bhanwar stays in the same house along with accused Bhanwar. Similarly Ram Narain (PW 2) has stated that at the time the recovery was made Khet Singh and accused Bhanwar were residing in the house and accused Mani-Ram used to come in the house and that the permanent residence of Khetsingh was in the house. Ramnarain (PW 2) has also stated that the door of the room from which the bottles were recovered was open. Thus, from the evidence of Kishanlal and Ram Narain it appears that apart from accused Bhanwar, his father Khet Singh was also residing in the house from which the bottles of liquor were recovered and that accused Maniram also used to frequently visit the said house and further that the room from which the aforesaid bottles were recovered was open at the time when the said recovery was made. In the said circumstances it cannot be said that the 22 bottles containing illicit liquor which were recovered from the house were in the conscious possession of accused Bhanwar. 15. In so far as accused Bhanwar being in conscious possession of the said bottles is concerned it may further be observed that under section 68 of the Act a presumption is to be drawn that the accused person has committed an offence in respect of any excisable article for the possession of which he is unable to account satisfactorily. 16. Accused Bhanwar was therefore, entitled to offer an explanation with regard to the bottles of liquor said to have been found in his possession but in view of his being deaf and dumb the said accused could not exercise the aforesaid right to explain the presence of the twenty two bottles of liquor from the house. The position in the present case is not very different from that in In re Domayan (1). In that case the accused who was deaf-mute, was being prosecuted for the offence under section 411 I.P.C. for being in possession of stolen property and presumption under section 114(a) of the Evidence Act was being invoked against him. The Madras High Court held that no inference under section 114(a) of the Evidence Act could be drawn against the accused in view of the inability on the part of the accused to put forward an explanation which he may have to offer. In that case it has been observed : — "But in the present case it is impossible to draw such an inference, because accuseds infirmity prevents him from putting forward any explanation he may have to offer. No one has been found able to communicate with him and we cannot place much reliance on the Magistrates statement of what he, was able to gather from what he calls, "not very intelligible signs." There appears to be no other circumstance from which a dishonest knowledge or intent on the part of the accused can be inferred. We set aside the conviction and direct release of the accused." 17. Similarly in the present case no one has been found able to communicate with accused Bhanwar and in the circumstances it cannot be held that accused Bhanwar was in conscious possession of the twenty two bottles containing illicit liquor which were recovered from the house. 18. We set aside the conviction and direct release of the accused." 17. Similarly in the present case no one has been found able to communicate with accused Bhanwar and in the circumstances it cannot be held that accused Bhanwar was in conscious possession of the twenty two bottles containing illicit liquor which were recovered from the house. 18. In my opinion therefore, the conviction of accused Bhanwar in respect of the offence under section 54(a) of the Act cannot be sustained. 19. I would, therefore, accept this reference and set aside the conviction of accused Bhanwar in respect of offence under section 54(a) of the Rajasthan Excise Act recorded by the Judicial Magistrate First Class No. 2, Ganganagar, in Criminal Case No. 767/1981. Accused Bhanwar is acquitted of the said offence. He is on bail. His bail bonds will stand discharged.