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2002 DIGILAW 1000 (AP)

LAXMAN GOUD v. State Of A. P.

2002-08-13

T.CH.SURYA RAO

body2002
T. SURYA RAO, J. ( 1 ) THE revision petitioner assails his conviction and sentence passed by the learned Judicial Magistrate of first Class, Alampur, by his judgment dated 27-10-1994 in CC No. 61 of 1994 convicting him for the offence punishable under section 34 (a) of the A. P. Excise Act (for brevity the Act ) and sentencing him to suffer rigorous imprisonment for one year and further sentencing him to pay a fine of rs. 10,000/- and in default to suffer rigorous imprisonment for six months and confirmed by the Additional Sessions Judge, mahabubnagar, by his judgment dated ( 2 ) 5. 2000 passed in Criminal Appeal No. 117 of 1994 with the modification of the sentence by reducing it from one year to six months under Section 34 (h) of the Act and the fine from Rs. 10,000/- to Rs. 100/ -. 2. The case of the prosecution was that PW3-Assistant Excise Superintendent (Enforcement), Mahabubnagar along with pw4-Excise Sub-Inspector and Constables proceeded to Konkal village on 2-2-1994 and in the meanwhile they picked up panchas-PWs. 1 and 2 and visited the house bearing Door No. 2/101 at 3. 30 p. m. and they found A1 at the house. After having disclosed their identity and after recording the reasons for not obtaining the search warrant, they proceeded to conduct search of the house and in the process they found 28 arrack packets kept in a bag in the eastern comer of the house. Each sachet contains 100 ml. of liquor with the label ballery District of Karnataka State. Having found that A1 was not having requisite licence to possess them, they seized the sachets after drawing samples therefrom under the cover of Ex. P6- panchanama and arrested the accused. Thereupon, the samples and the accused were handed over to PW5-Sub-Inspector of the concerned Excise Station. PW5 registered the crime on Ex. P6 as Crime no. 25/93-94 of Santhinagar Range and sent the samples to the Chemical Examiner for examination and report. After having received Ex. P7-Chemical Examiner s report, pw5 laid the charge-sheet against A1 and another. ( 3 ) AT the time of trial, on behalf of the prosecution in all five witnesses were examined and Exs. Pl to P7 and MOs. I to iii were got marked. One witness was examined on the side of the accused and exs. Dl and D2 were got marked. ( 3 ) AT the time of trial, on behalf of the prosecution in all five witnesses were examined and Exs. Pl to P7 and MOs. I to iii were got marked. One witness was examined on the side of the accused and exs. Dl and D2 were got marked. Considering the evidence, both oral and documentary, the trial Court found the accused guilty of me offence punishable under Section 34 (a) of the Act. In the appeal preferred against the conviction and sentence passed by the trial Court, the appellate Court while concurring with the finding of guilt, modified the conviction for the offence punishable under Section 34 (h) of the Act and further modified the sentence by reducing it from one year to six months and the fine from Rs. 10,000/- to Rs. 100/ -. In this revision case, the revision petitioner seeks to assail the same as aforesaid. ( 4 ) THE learned Counsel appearing for the revision petitioner-accused contends that the evidence is discrepant as regards the factum of seizure and even the identity of the house has not been established. The learned Counsel further contends that in the absence of the evidence of PWs. 1 and 2 and the panchas, the inconsistent evidence of PWs. 3 and 4 cannot be relied upon to bring home the guilt of the accused. ( 5 ) BOTH the mediators have shown their volte faces to the case of the prosecution. They admitted their signatures bearing on Exs. Pl to P5 but denied of the seizure of articles and arrest of the accused as propounded by the prosecuting agency. Therefore, their evidence is not available to the case of the prosecution. The only evidence available on record is that of pws. 3 and 4. Both these witnesses are the excise officials - one is the Assistant Excise superintendent (Enforcement) and the other is the Excise Sub-Inspector. They being the police officers, it is contended that their evidence cannot ordinarily be considered. The only evidence available on record is that of pws. 3 and 4. Both these witnesses are the excise officials - one is the Assistant Excise superintendent (Enforcement) and the other is the Excise Sub-Inspector. They being the police officers, it is contended that their evidence cannot ordinarily be considered. The police witnesses are also witnesses like any other witnesses and they cannot stand on a different footing than an ordinary witness, the difference only being that at best they can be called as interested witnesses having interest in the fruits of the investigation made by them, and, therefore, their evidence requires to be approached with all circumspection but on the ground that they are interested witnesses their evidence cannot be eschewed totally from consideration at the outset. It is always for the Court to appreciate any evidence regardless of the type of evidence available on record by applying the established norms for appreciation of evidence of a witness in an independent and dispassionate manner. Here is a case where the evidence of PW3 is receiving corroboration from the evidence of PW4. It is not desirable to eschew the testimony of both these witnesses only on the premise that they are the Excise officials and it cannot be expected that all the Excise officials would speak untruth. ( 6 ) THE discrepancies pointed out in the evidence of these witnesses are with regard to the identity of the house. The door number of the house has been mentioned as 2/101. Different evidence has been sought to be adduced to show that the house owned by the accused is different having a different door number than the door No. 2/101. In this criminal case, the door number of the house is not the criterion. Obviously, the accused is found in the house which premises were searched by the Excise officials and found the sachets. The fact remains that the contraband was seized and the accused was arrested. Both the contraband and the accused were produced before PW5 who in turn produced them before the Court within 24 hours thereafter. When the factum of seizure and the arrest of the accused can be believed, the discrepancy as regards the door number of the house loses its significance and, in my considered view, such discrepancy cannot outweigh the seizure and arrest if it is otherwise convincing. When the factum of seizure and the arrest of the accused can be believed, the discrepancy as regards the door number of the house loses its significance and, in my considered view, such discrepancy cannot outweigh the seizure and arrest if it is otherwise convincing. There has been no serious dispute as regards the arrest of the accused. He has been physically produced before the Sub-Inspector and then before the Court. When that part is not being assailed seriously, a part of the investigation, namely, seizure of the contraband cannot be disbelieved. There is no reason as to why that part of the testimony of the witnesses about the seizure cannot be believed when a part of the testimony as regards the arrest of the accused is quite believable. In that view of the matter, the discrepancy as regards the door number is of no criterion and loses its significance. ( 7 ) THE learned Counsel appearing for the revision petitioner-accused seeks to invite my attention to the discrepancy in the evidence of PW4 who has categorically deposed that he signed on Ex. P6 along with pw3 and another and it did not contain any other signature. Obviously, Ex. P6 contains the signatures of the mediators-PWs. 1 and 2. It may be mentioned here that PWs. 1 and 2 have categorically admitted about their signatures appearing on Exs. Pl to P5 and there is no gainsaying of the same. What they deposed before a Court of law was that they were not present at the time of the arrest and seizure and the accused was not present. That part of the evidence has not been accepted by the Court for the reasons discussed hereinabove. For the reasons best known to them, the witnesses have not supported the case of the prosecution but at the same time, they admitted the signatures appearing on Exs. Pl to P5. While that be the case, the unguarded evidence given by PW4 that Ex. P6 contains only three signatures and of none cannot be accepted so as to discredit the whole process of arrest and seizure. ( 8 ) ALL said and done, it is a pure question of fact. Both the Courts have appreciated the evidence of witnesses and concurrently were of the view that the contraband was seized and the accused were arrested. ( 8 ) ALL said and done, it is a pure question of fact. Both the Courts have appreciated the evidence of witnesses and concurrently were of the view that the contraband was seized and the accused were arrested. I am afraid, it is not open to the revisional Court to disturb the fact finding given concurrently by both the courts below. What the Court is expected to see is the illegality, impropriety and incorrectness of the finding given by the courts below while exercising its revisional jurisdiction. ( 9 ) SECTION 42 of the Act is germane in the context for consideration. A statutory presumption has been engrafted in the shape of Section 42 by the Legislature. The presumption certainly shifts the burden to the accused. Of course, the initial burden is always upon the prosecution to prove its case in accordance with Sections 101 to 104 of the Indian Evidence Act. The prosecution has placed the relevant evidence in the shape of PWs. 1 to 5. Therefore, the oral and documentary evidence adduced on the point coupled with the presumption engrafted under Section 42 of the Act, in my considered view, would establish the guilt of the accused. The appellate Court has rightly converted the provision of law from Section 34 (a) to 34 (h) of the Act. ( 10 ) AS regards the proportionality of the sentence, as the statute prescribes a minimum sentence of six months, no sentence less than the minimum sentence prescribed by the statute can be inflicted upon the accused. Therefore, even the sentence imposed cannot be said to be disproportionate to the gravity of the offence alleged. In any view of the matter, there is nothing to interfere with the conviction and sentence imposed by the trial Court and as modified and confirmed by the appellate Court. ( 11 ) FOR the foregoing reasons, the criminal revision case fails and is dismissed and the judgment dated 27-10-1994 passed by the learned Judicial Magistrate of First class, Alampur, in CC No. 61 of 1994, as modified and confirmed by the Additional sessions Judge, Mahabubnagar, by his judgment and 26-5-2000 passed in Criminal appeal No. 117 of 1994, is upheld. Consequently, the bail bond of the revision petition-accused stands cancelled and he is directed to surrender before the Court below forthwith to serve out the sentence imposed on him.