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2001 DIGILAW 328 (CAL)

Sahana Bibi v. State of West Bengal

2001-06-14

Joytosh Banerjee

body2001
JUDGMENT Joytosh Banerjee, J.: This revisional proceeding is directed against an order dated 18th September, 1985 passed in Criminal Appeal No. 17/85 by the learned Additional Sessions Judge, 9th Court, Alipore by which the learned Court below upheld the conviction of the petitioners Sahani Bibi and Akthari Begum under section 46A(c) of the West Bengal Excise Act. But reduced the sentence awarded to R.I. for one year each. The sentence of fine of Rs. 2000/- in default of imprisonment remained untouched. 2. Shortly put the prosecution case against the petitioners is that they were arrested on 31.7.81 when they were found in unlawful possession of some non-duty paid Ganja at premises No. 7/2, Gas Street, Calcutta. The learned Court below considered the evidence on record and also the judgment of the learned trial court and came to a finding that when there was no evidence to rope the male accused persons, the husbands of the present petitioners, against whom also a similar charge was framed like that of the petitioners and with this finding acquitted those two male accused. At the same, time found that on consideration of the evidence on record the conviction upon the present petitioners must be upheld. Being aggrieved by such order, the petitioners have come up before this court. 3. I have heard the submissions made by the learned Advocate for the petitioners. I have also carefully gone through the judgment and order passed by the learned Additional Sessions Judge. Broadly speaking it was urged before the learned Additional Sessions Judge in appeal that the room in which the alleged recovery was made was not sufficiently identified and there was discrepancy in describing the same. The learned Judge did not consider the argument convincing at all and pointed out that both the petitioners were found packing Ganja and so the description of the particular room was of little consequence. He further pointed out that a raid was made, during the Ramjan month, at a time when the Muslim community (to which admittedly both the petitioners belonged) normally get up for taking Sehri (food before sunrise) and at that odd hour those two women were putting packets of Ganja in gunny bags and many loose packets were lying on the floor and elsewhere in the room. The learned Judge pointed out that this consistent version was given by all the Excise-officials and also one independent witness, namely, P.W.4 Sri Bhawani Shankar Pandey. The learned Judge also noted his reasoning why he should rely on the evidence of Shri Pandey although the said witness was a man of Moira Street which was far away from Gas Street, the place of occurrence. The learned Judge in the order impugned also indicated why he was inclined to accept that the petitioners were at least keeping and dealing with Ganja, He clearly rejected the defence contention that this story as introduced through evidence was intrinsically unreliable. 4. Now, the revisionist petitioners want to challenge the order impugned mainly on two fold grounds. Firstly, it is alleged that the learned Magistrate erred in not examining the accused persons according to law as all the alleged incriminating materials were not put to the accused persons under section 313 of the Criminal Procedure Code. But there is no indication either in the petition under consideration or in the submission made before this court by the learned Advocate what were the incriminating circumstances to which the attention of the accused persons were not drawn. 5. Secondly, it has been alleged that the learned Sessions Judge erred in coming to certain conclusions on the basis of the evidence on record. Here I should point out that in a revisional proceedings this court can not, and should not substitute its own conclusion on an elaborate consideration of evidence. Powers under section 397 Cr.P.C. should be exercised within the four corners of the section wherever there has been miscarriage of justice in whatever manner. This revisional jurisdiction should not be lightly exercised, as it cannot be invoked as of right. Where the appeal is the continuation of the proceeding, the revision is only a procedural facility given to a party and in a revision, the court considers the materials only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order. Where the appeal is the continuation of the proceeding, the revision is only a procedural facility given to a party and in a revision, the court considers the materials only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order. In other words, the revisional powers of the High Court vested in it by section 401 read with section 396, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done, in accordance with the recognized rules by the law, and that subordinate courts do not exceed their powers vested in them by the Code. To seek interference under section 482, which proceeds on same principle as that of section 151 C.P. Code, three conditions are to be fulfilled: (i) the injustice which comes to light should be of grave and not of trivial character, (ii) it should be palpable and clear and not doubtful, (iii) there exists no other provision of law by which party aggrieved could have sought relief. 6. In short this court is to consider in a revisional proceeding, if substantial justice, has been done or not. On scrutiny of the judgment impugned I find that the learned Judge considered all the relevant facts, circumstances and evidence on record and reached at a proper conclusion on the basis of the same. He also pointed out that learned trial court rightly observed that when a minimum sentence was prescribed by the law, no recourse to section 360 Cr.P.C. could be taken. I must point out here that no attempt has been made from the side of the petitioners to show that this particular observation of the learned Judge who heard the appeal was erroneous. Through the order impugned, the learned Judge further found that the Ganja seized in this case was worth Rs. 1,77,859/- and therefore the punishment was prescribed under section 46A(ii) of the Bengal Excise Act. Thereafter on consideration of the maximum and minimum sentence of the offence, the learned Judge reduced the sentence of imprisonment to R.I. for one year from a sentence of R.I. for two years but upheld the imposition of fine of Rs. 2000/-. Considering all these circumstances it can be said that through the judgment impugned substantial justice has been done and therefore no interference from this court is called for. 7. 2000/-. Considering all these circumstances it can be said that through the judgment impugned substantial justice has been done and therefore no interference from this court is called for. 7. In the result, the present revision must fail. Accordingly the criminal revision stands dismissed. The petitioners are directed to surrender before the trial court within a month from this day, to serve out the sentence in default the trial court is directed to get accused/petitioners apprehended through issuing compelling process. Let a copy of the order be sent down to the Sessions Judge, 24-Parganas(S) for informing the trial court that is to say Judicial Magistrate, 2nd Court, Sealdah and also for doing the needful, along with the L.C.R Criminal Revision dismissed with direction.