Nanua v. State of Rajasthan — 1988 DIGILAW 7 (RAJ)

M.B. SHARMA, J.—In assailing the judgment of the learned Additional Sessions Judge, Deeg, Mr. Dhankhar, learned counsel for the accused-petitioner, has raised three-fold contentions. The first is that there is no evidence as to where the sample remained for a period of 30 days, therefore, the possibility of sample being tempered with cannot be excluded. The second submission of Mr. Dhankhar is that the independent witnesses did not support the case of prosecution and, therefore, a finding should not have been recorded that 140 bottles of illicit liquor were recovered from the possession of accused. The last submission of the learned counsel is that an offence under Sec. 54 of the Rajasthan Excise Act (for short the Act) is punishable with imprisonment which may extend to three years and, therefore is such which could have been dealt with under the provisions of Probation of Offenders Act, 1958 (for short the Act, 1958) and in view of the mandate of the legislature contained in Sec. 361 Cr. P. C. it was the duty of the Court to have recorded special reason for not dealing with the case of the accused under the Act, 1958. 2. So far as the second submission of learned counsel for the petitioner that if the independent witnesses of search do not support the case of the prosecution then a finding cannot be recorded that illicit liquor was recovered from the possession of the accused, is concerned, I am of the opinion that no such inflexible rule can be laid down. Even in cases where the independent witnesses of search do not support the case of the prosecution, go against the contents of the search memo which is bearing their signatures, in case the Court relies on the statements of the Excise Officer, it can be held that accused was found in possession of illicit liquor. In this connection a reliance may be made to the case of Jamwant Singh vs. The State of Rajasthan (1). In the instant case, two witnesses of search namely Sharpan (p. w. 1) and Kishore (p. w. 2) did not support the case of the prosecution. Each of them admitted that they have signed the search memos and did not deny their signatures on them. In the instant case, two witnesses of search namely Sharpan (p. w. 1) and Kishore (p. w. 2) did not support the case of the prosecution. Each of them admitted that they have signed the search memos and did not deny their signatures on them. It is not unusual that when an accused person is tried they always being high tails and the witnesses being of the same village, rather of the same locality, for the reasons of pressure of the accused or for other reasons go back on their previous statements and even deny that the search memo was prepared in their presence, Therefore, it be held that in all cases in which the attesting witnesses do not support the case of the prosecution, the accused cannot be held guilty then there is found to be failure of justice. Each case will have to be examined on its own facts. In the instant case, the Excise Officers namely, Mangtu Ram (p. w. 3) and Ram Chandra (p. w. 6) are the Excise Officers. There is no material on record, rather there is no suggestion even that they bear any ill will against the accused-petitioner. There is no reason to ignore their statements-moreso when the trial Court and the appellate Court have placed reliance on their testimony and have held that the accused was found in conscious possession of 140 bottles of illicit liquor. 3. Coming to the first submission of the learned counsel for the petitioner that no evidence has been led as to how the sample after being taken was dealt with, the possibility that the sealed were tempered with cannot be excluded, it may be stated that Kishan Behari (P. W. 4), an Excise Inspector in his statement stated that the sealed sample was sent vide Ex. P. 4 through a guard Suraj Singh in sealed condition for analysis A receipt was given by the office of the Chemical Examiner which is on the back of the Ex. P. 4. Suraj Singh (p. w. 5) has also been examined and states that on 23-1-77 a sealed sample was given to him for being delivered in the office of the Chemical Examiner and he had delivered it in sealed condition in his office. Surprisingly, not a single question was put to either of them that the seal of the sample was tempered with. Surprisingly, not a single question was put to either of them that the seal of the sample was tempered with. The illicit liquor was recovered from the house of the accused on 26-12-76 and on 23-1-77 it was sent to the Chemical Examiner where it was received in sealed condition. There is a mention in the report of the Chemical Examiner that the sample was in sealed condition and seals were intact and unbroken. Thus, there is no material to record a finding that the seals have been tempered with. 4. Coming to the last submission of the learned counsel for the accused-petitioner that the case of the accused-petitioner should have been dealt with under Sec. 4 of the Act, it may be stated that before this point is dealt with, it is to be seen as to what is the character, antecedent of the offender and the circumstances of the case. No doubt in Sec. 361 Cr. P.C. a mandate of the legislature is contained that if the case of the accused is such which could be dealt with under the provisions of Sec. 4 of the Act but is not so dealt with, the Court must record special reasons. A perusal of the judgment of the trial Court will show that the Court has only said that because large quantity of illicit liquor was recovered from the possession of the accused, therefore, benefit of the provisions of the Act cannot be extended to him so that it may be a lesson for other similarly involved in such activities. It may be stated that the learned appellate Court did not consider the provisions of Sec. 361 Cr. P. C. 5. It may be stated at this stage that if the case of the accused is such which could be dealt with under the provisions of the Act, it is the duty of the Court under Sec. 361 Cr.P.C. to consider the matter and in case the Court is of the opinion that the case of such an accused should not be so dealt with, it must record special reasons in its judgment. So what are "special reasons" within the meaning of Sec. 361 Cr.P.C. or under Sec. 354 Cr.P.C. came up for consideration before their Lordships of the Supreme Court in the case of Bishnu Deo Shaw vs. State of West Bengal (2). So what are "special reasons" within the meaning of Sec. 361 Cr.P.C. or under Sec. 354 Cr.P.C. came up for consideration before their Lordships of the Supreme Court in the case of Bishnu Deo Shaw vs. State of West Bengal (2). Dealing with Section 361 Cr.P.C. the Court said that if the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training, or rehabilitation of youthful offenders, where the Court could have done so, Sec. 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the special reasons for not doing so. In the opinion of the Supreme Court special reasons contained in Sec. 361 Cr.P.C. must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. The court further said that this is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrente, are now among the foremost objects of the administration of criminal justice in our country. There can be no dispute that recent trend is more on reformation and rehabilitation of the offenders. In criminal cases when a person is found guilty of an offence which is such which can be dealt with under the provisions of the Act, the provisions of Sec. 360 Cr P.C. being not applicable in view of Sec. 19 of the Act, it is the duty of the Court to collect material about the character, antecedents of the offenders which is not generally available in the record and only if the character, antecedents of the offenders along with the circumstances in which the offence was committed are such on the basis of which the Court can come to the conclusion that the offender is of such a character that he cannot be reformed or rehabilitated, only then the Court should after recording the special reasons refuse to deal with the case of the offender under Sec. 4 of the Act. In the absence of any material in respect of the character, age and antecedent of the offender, it will not be possible for the Court to refuse to deal with the case of the offender under Sec 4 of the Act or under any other law in view of the provisions of Sec. 361 Cr.P.C. which are mandatory. The mere circumstance that the accused was found in possession of a large quantity of liquor in the absence of any material that previously also he was found guilty of similar offence, will not be sufficient and cannot be said to be special reasons as required under Sec. 361 Cr.P.C. for not dealing with the case of the offender if the case should have been so dealt with under the provisions of the Act, 1958. Thus, in my opinion after incorporation of Sec. 361 Cr.P.C. in the Code of Criminal Procedure if the offender is found guilty of an offence which could be dealt with under the provisions of the Act, 1958 then before hearing the accused on the quantum of sentence, the Court must make an attempt to collect materia! about the age, character and antecedents of the offender, the circumstances in which the offence is committed being already on record and only after doing such an exercise, the Court can for the reasons to be recorded about its character and antecedents refused to deal with the case of the accused under the aforesaid provisions of the Act, 1958. In the instant case, no such exercise appears to have been done by the Court below and the only ground on which the Court has declined to deal with the case of the offender under Sec. 4 of the Act, 1958 is that he was found in possession of 140 bottles of illicit liquor. These reasons cannot be said to be special reasons as contemplated under Sec. 361 Cr.P.C. 6. In the instant case the incident is of the year 1976. The accused has already undergone some sentence and there is no material that the character, and antecedents of the accused are such that he is beyond reformation or beyond rehabilitation. Thus, in my opinion, in the present case the Court could not have declined to deal with the case of the accused under Sec. 4 of the Act, 1958 in view of the mandatory provisions contained in Sec. 361 Cr.P.C. 7. Thus, in my opinion, in the present case the Court could not have declined to deal with the case of the accused under Sec. 4 of the Act, 1958 in view of the mandatory provisions contained in Sec. 361 Cr.P.C. 7. Before parting with this case, I would like to observe that by & large the subordinate Courts are not paying any attention to the provisions contained in Sec. 361 Cr.P C. which are of mandatory nature. The Courts must take the above provisions into consideration in such of the cases where the case of the accused can be dealt with under the provisions of the Act, 1958. If necessary, in such cases they should call for the report of the Probation Officer, which report is bound to have material in respect of the character, antecedents, the family of the accused and the other circumstances of the case, and that report may furnish sufficient material for the Court in some cases to refuse to deal with the case of the accused under the provisions of the Act, 1958. Without such report of the Probation Officer, in my opinion, the Courts cannot be in a position to decline to extent the benefit of provisions of the Act, 1958 to the accused in view of the mandatory provisions contained in Sec. 361 Cr.P.C. 8. For the reasons aforesaid, the revision petition is partly allowed. While affirming the conviction of the accused-petitioner under Sec. 16/54 of the Rajas-than Excise Act for the reasons already stated, it is hereby directed that instead of sentencing at once to any punishment, the accused shall be released on his furnishing a personal bond of Rs. 5,000/- and a surety of like amount to the satisfaction of the trial Court to appear before him for undergoing sentence awarded as and when called upon during the period of one year and in the meantime to keep peace and be of good behaviour. The bond should be furnished in the trial Court within a period of two years failing which the Court shall see that the accused shall undergo sentence awarded and remaning part thereof.