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2006 DIGILAW 705 (GAU)

State of Manipur v. Shyamkumar Pradhan

2006-08-01

MAIBAM B.K.SINGH

body2006
JUDGMENT M.B.K. Singh, J. 1. This appeal filed by the State is directed against the judgment of acquittal dated 18.12.2001 passed by the learned Chief Judicial Magistrate, Tamenglong in respect of the charge of the commission of the offence under Section 53(a) Eastern Bengal and Assam Excise Act, 1910, hereinafter referred to as EB and AE Act, framed against the present Respondent in Cril.(P) Case No. 1 of 2001. 2. According to the Appellant, the brief facts leading to this appeal are as follows: On 10.06.1995 at about 3.30 a.m., a police party of Tamenglong Police Station lead by the then O.C., K. Rupachandra Singh of the said Police Station along with the Deputy Commandant of the 5th Bn. of Manipur Rifle at Khongajaron conducted search operation in the quarter of the present Respondent, who was then a rifleman of the 5th Bn. Mr. During the search, one white plastic jerricane of 5 litres capacity containing full of illicit distilled liquor was found concealed inside the quarter by covering with clothes. The said jerricane containing illicit liquor was seized by preparing a formal seizure memo in presence of the witnesses. A FIR Case being No. 38(6)95 TML P.S. Under Section 53(a) of the EB and AE Act was registered and after investigation, a charge-sheet was filed against the present Respondent. On 11.06.95 at about 11 a.m., the accused (present Respondent) was produced before the learned Chief Judicial Magistrate, Tamenglong at his residence. When the learned Chief Judicial Magistrate, Tamenglong explained to the accused (the present Respondent) about the offence Under Section 53(a) EB and AE Act, in respect of which charge-sheet was submitted, he pleaded guilty. Thereafter, the learned Chief Judicial Magistrate, Tamenglong convicted the accused (the present Respondent) for the commission of the said offence and sentenced him to a fine of Rs. 100 which was paid on the same day. Consequent upon the said conviction, the accused (the present Respondent) was dismissed from his service on 15.06.1995. Then, as against the conviction and sentence, the accused (the present Respondent) filed a revision case before the learned Sessions Judge, Manipur West disputing the said fact of his pleading guilty. The learned Sessions Judge, Manipur West, after hearing the parties, set aside the impugned conviction and sentence dated 11.06.1995 and remanded the case to the learned Chief Judicial Magistrate, Tamenglong for de novo trial. 3. The learned Sessions Judge, Manipur West, after hearing the parties, set aside the impugned conviction and sentence dated 11.06.1995 and remanded the case to the learned Chief Judicial Magistrate, Tamenglong for de novo trial. 3. In the said de novo trial, 3 P.W.s were examined on behalf of the prosecution. After due proceeding of the case and hearing of the parties, the learned Chief Judicial Magistrate, Tamenglong passed the impugned judgment and order dated 18.12.2001 by which the accused (the present Respondent) was acquitted of the charge of the commission of the offence Under Section 53(a) EB and AE Act. The learned Chief Judicial Magistrate, Tamenglong was of the view that there was no evidence to prove that the seized article was illicit liquor. Further, in the opinion of the trial Judge, in the absence of any documents showing that the concerned police officers were authorized to investigate the offence punishable under Section EB and AE Act, the concerned O.C. of the Tamenglong P.S., who investigated the present case, was not authorized to investigate the said offence and to submit the charge-sheet. Furthermore, learned Chief Judicial Magistrate, Tamenglong was of the opinion that in the facts and circumstances, there was no possibility of directing for making re-investigation of the case by a competent authority inasmuch as the limitation period prescribed under the Code of Criminal Procedure, 1973 would not permit taking cognizance of the offence after more than three years. 4. The only point submitted by Mr. Jallaluddin, learned Addl. PP appearing on behalf of the Appellant is that the learned Chief Judicial Magistrate, Tamenglong committed grave error by acquitting the accused (the present Respondent) without appreciating the correct position of law regarding power of police officers for making investigation of the offence under EB and AE Act. The learned Addl. PP draws this Court's attention to the notification dated 26.08.1994 issued by the State Government in exercise of powers conferred by Section 8(2)(b) and Section 42(2) of the EB and AE Act and thereby appointing all police officers not below the rank of Assistant Inspector of Police as the Excise Officers to exercise the powers of investigation of the offence under the said Act subject to the control of the Collector. The learned Addl. The learned Addl. PP submits that in view of the said notification, the view of the learned Chief Judicial Magistrate, Tamenglong to the effect that the concerned police officer, who investigated the case against the present Respondent, was not competent to investigate the case is not sustainable and as such, the impugned judgment acquitting the present Respondent in connection with the charge for the commission of the offence Under Section 53(a) EB and AE Act is liable to be set aside. 5. No doubt, in view of the said notification dated 26.08.94 of the State Government, the opinion of the learned Chief Judicial Magistrate, Tamenglong to the effect that the concerned police officer, who had investigated the case as against the accused (the present Respondent), was not having authority under the law to investigate the case is not sustainable and it is hereby set aside. 6. However, the impugned judgment of acquittal of the accused (the present Respondent) was not solely on the ground of lack of authority on the part of the concerned police officer to investigate the case for the commission of offence under EB and AE Act but also on the ground that there was no sufficient evidence to prove that the seized article was illicit liquor prohibited under the provisions of EB and AE Act. Accordingly, merely on finding that the concerned police officer was having authority to investigate the case under the said EB and AE Act, the impugned acquittal order is not to be set aside or interfered with. 7. As per records of the trial Court, during the trial of the case, 3 P.W.s were examined. These 3 P.W.s namely, L. Tomba (P.W. No. 1), K.C. Lokho (P.W. No. 2) and Md. Ayub Khan (P.W. No. 3) gave statements to the effect that they found 5 litres of country made liquor containing in a plastic jerricane in the quarter of the accused (the present Respondent) on 10.06.1995 at about 3.30 a.m. and that the said plastic jerricane containing the liquor was seized in presence of the witnesses. The said facts were denied by the defence during the cross-examination of P.W.s No. 1 and 3. It is also ascertained that the said seized plastic jerricane containing illicit liquor was not produced before the Trial Court during the trial. In this connection, the learned Addl. The said facts were denied by the defence during the cross-examination of P.W.s No. 1 and 3. It is also ascertained that the said seized plastic jerricane containing illicit liquor was not produced before the Trial Court during the trial. In this connection, the learned Addl. PP submits that the seized plastic jerricane containing illicit liquor having been destroyed after the accused (the present Respondent) had already pleaded guilty to the charge at the time of his production before the learned Chief Judicial Magistrate, Tamenglong, the prosecution was not in a position to produce the seized plastic jerricane containing illicit liquor at the time of proceeding of the de novo trial. It is to be noted, however, that there was no formal order issued by the learned Chief Judicial Magistrate, Tamenglong for destroying the seized article. Before the trial Court, no order was produced to show that the seized article had been destroyed on direction of any competent authority. In the facts and circumstances, the trial Court was not in position to obtain the opinion of an expert regarding the fact if the content of the seized plastic jerricane was in fact illicit liquor or not. On perusal of the statements of the P.W. No. 1, P.W. No. 2 and P.W. No. 3, it is found that though each of them stated to the effect that the content of the seized plastic jerricane was illicit liquor, none of them disclosed on the basis of what characteristic of the said liquid, they were testifying to the effect that the liquid was illicit liquor prohibited under the provisions of the EB and AE Act. Since the case of the prosecution was that illicit liquor was seized from the possession of the accused, the prosecution ought to have produced satisfactory evidence to prove that it was illicit liquor prohibited under the provisions of the EB and AE Act. Since the case of the prosecution was that illicit liquor was seized from the possession of the accused, the prosecution ought to have produced satisfactory evidence to prove that it was illicit liquor prohibited under the provisions of the EB and AE Act. In view of the denial of the fact of seizure of illicit liquor from the side of the accused (the present Respondent), bare statements of the P.W.s to the effect that illicit liquor was seized but without disclosing the characteristic of the seized liquid on the basis of which they were asserting that it was illicit liquor, one could not have concluded that even assuming that a plastic jerricane containing liquid was seized from the possession of the accused (the present Respondent), the liquid was illicit liquor. 8. The Trial Court, after consideration of the materials before the Court and after having regard to the failure on the part of the prosecution to produce the alleged seized illicit liquor at the time of trial and after taking note of not associating any occupants of any of the quarters located near the quarter of the accused without giving any reason at the time of the said seizure, apart from the said illegal view regarding lack of jurisdiction on the part of the concerned police officers to investigate the case, acquitted the accused (the present Respondent) of the charge for the commission of the offence Under Section 53(a) of the EB and AE Act. Since the said acquittal was not solely on the basis of the said findings about lack of jurisdiction on the part of the concerned police officer to investigate the case, the impugned judgment passed by the learned Chief Judicial Magistrate, Tamenglong acquitting the accused (the present Respondent) of the charge for the commission of the offence Under Section 53(a) EB and AE Act is not to be interfered with. In my considered opinion, the view of the learned Chief Judicial Magistrate, Tamenglong about insufficiency of the materials before the Court for establishing the charge against the accused beyond reasonable doubt is an acceptable conclusion. There is no reasonable basis for interfering with the said view of the learned Chief Judicial Magistrate, Tamenglong. There was no perversity or illegality in acquitting the said accused (the present Respondent) in respect of the said charge. 9. There is no reasonable basis for interfering with the said view of the learned Chief Judicial Magistrate, Tamenglong. There was no perversity or illegality in acquitting the said accused (the present Respondent) in respect of the said charge. 9. In State v. K. Narasimhachary, (2005) 8 SCC 364 , the apex Court reiterated the well recognized principle that if two views are possible, the appellate Court should not interfere with the acquittal by the lower Court; and that only where the materials on records leads to a sole and inescapable conclusion on guilt of the accused, the judgment of acquittal will call for interference by the appellate Court. The above said decision was referred by the Supreme Court in T. Subraminium v. State of T.N., (2006) 1 SCC 401 . In this connection, the learned Counsel appearing on behalf of the Respondent draws this Court's attention to various other decisions of the Apex Court reported in AIR 2004 SC 4662 : (2005) 12 SCC 506 : (2004) 10 SCC 709 : (2004) 12 SCC 101 ; (2004) 9 SCC 193; AIR 2004 SC 2943 and AIR 2004 SC 124 . I do not think that there is any need to refer to these decisions at length. It is well settled that unless the findings recorded by a Trial Court are manifestly erroneous, contrary to evidence on record or perverse, the High Court is not to interfere with the order of acquittal. At the same time, in an appeal against the acquittal, if two views are reasonably possible on the basis of evidence in the record, the view taken by the Trial Court is found to be possible and reasonable view, the High Court is not to interfere with the order of acquittal. 10. In connection with the question as to when an order of acquittal passed by a trial Court can be interferred with by the High Court to which an appeal has been filed against the order of acquittal, the Apex Court in Zaheera Habibullah H. Sheikh and Anr. v. State of Gujarat and Ors. 10. In connection with the question as to when an order of acquittal passed by a trial Court can be interferred with by the High Court to which an appeal has been filed against the order of acquittal, the Apex Court in Zaheera Habibullah H. Sheikh and Anr. v. State of Gujarat and Ors. (2004) 4 SCC 158 held at para 64: It is no doubt true that the accused persons have been acquitted by the Trial Court and the acquittal has been upheld, but if acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorized witnesses, it is not acquittal in the eye of law and no sanctity or credibility can be attached and given to the so called findings. It seems to be nothing but the travesty of truth, fraud on the legal process and the resultant decision of the Courts-coram non judis and non est. There is, therefore every justification to call for interference in these appeals. 11. Keeping in view the above said well settled principle of law, I am of the opinion that there is no sufficient basis for interfering with the order of acquittal passed by the learned Chief Judicial Magistrate, Tamenglong in favour of the accused (present Respondent) in respect of the said charge for the commission of the offence Under Section 53(a) EB and AE Act. In the result, for the reasons already noted above, this appeal against the acquittal of the accused in respect of the said charge is hereby rejected and the impugned acquittal order is not interfered with. However, the view of the learned Chief Judicial Magistrate, Tamenglong to the effect that the police officers in our state are not authorized to investigate any case under EB and AE Act is not sustainable and as such, it is hereby set aside. 12. With these findings, this appeal stands disposed of.