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Madhya Pradesh High Court · body

2009 DIGILAW 1323 (MP)

Sobran Singh v. State of M. P.

2009-11-30

S.S.DWIVEDI

body2009
Judgment ( 1. ) The applicant has preferred this revision under section 397 of the Code of Criminal Procedure, feeling aggrieved by the appellate judgment dated 21/1/2004 passed by Third Additional Sessions Judge, Morena, in Cri. Appeal No. 339/03, whereby affirmed the judgment of conviction and sentence dated 17/1/2003, passed by Chief Judicial Magistrate, Morena, in Criminal Case No. 992/2003 wherein the applicant has been found guilty for the offence under section 34 (1) (a) (2) of the Excise Act and sentenced to one year RI with a fine of Rs. 25,000.00. ( 2. ) Briefly stated the facts of the case are, on 5/10/2002 at about 2.00 pm in the night near the culvert one tractor no. MP06-JA-348 was being checked by the police officers of Police Station Ambah, wherein 50 containers of countrymade liquor were found, the total quantity thereof was found to be 2000 ltrs. A seizure memo has been prepared. It is alleged that the driver of the vehicle-tractor concerned ran away from the spot. The tractor and liquor had been seized and the police officers returned back to the police station and registered the case under section 34 of the Excise Act. During investigation it is found that the concerning tractor trolley was registered in the name of the present applicant Sobran Singh, on which basis the applicant has been arrested and charge sheet has been filed against him for the offence under section 34 of the Excise Act. ( 3. ) The applicant/accused abjured the guilt and his defence is of false implication in this case. The learned trial Court after due appreciation of the entire evidence on record by the impugned judgment dated 17/1/2003 held the applicant/accused guilty for the offence punishable under section 34 (1) (a) (2) of the Excise Act and sentenced him as stated herein above; aggrieved by which the applicant has preferred a criminal appeal No. 339/2003, which has been dismissed by Third Additional Sessions Judge, Morena by the impugned judgments dated 21/1/2004. Hence, this revision petition by the applicant before this Court. ( 4. ) Having heard the learned counsel for the applicant as well as the learned Public Prosecutor appearing for the State and perused the record. ( 5. ) It is submitted by the counsel for the applicant that admittedly at the time of seizure the applicant was not present on the spot. ( 4. ) Having heard the learned counsel for the applicant as well as the learned Public Prosecutor appearing for the State and perused the record. ( 5. ) It is submitted by the counsel for the applicant that admittedly at the time of seizure the applicant was not present on the spot. The alleged liquor had been seized from the trolley of the tractor concerned, which has been found to be registered in the name of the applicant. The trolley admittedly is an open container wherein such type of liquor can be placed by the contractor of the liquor shop and it is the defence of the applicant that he has been falsely implicated at the instance of the liquor contractor and, thus both the Courts below wrongly held the applicant guilty for having illegal possession of the liquor concerned. Hence, prayed for setting aside the impugned judgments of conviction and sentence passed by the Courts below. ( 6. ) In reply, learned Public Prosecutor for the State supported the impugned judgments and prayed for dismissal of the revision petition. ( 7. ) To bring home the charge as levelled against the applicant, the seizing officer Narendra Kumar Tripathi (PW5) clearly stated that in the trolley the concerned liquor had been seized as per seizure memo Ex.P/1 and at the time of seizure no one was present with the tractor concerned. Thus, the presence of the applicant at the time of seizure is also not proved by the statement of seizing officer Narendra Kumar Tripathi (P W 5). On perusal of his statement it is also not clear that he also saw the applicant/accused driving the tractor concerned and after that the applicant/accused ran away from the spot when he saw the police officer while stopping the tractor concerned. ( 8. ) The other independent panch witnesses examined by the prosecution are Sanjay Singh (PW 1) and Kamal Singh (PW 4), who had also not supported that the liquor had been seized from the tractor trolley concerned. They only signed the seizure memo in the police station. ( 8. ) The other independent panch witnesses examined by the prosecution are Sanjay Singh (PW 1) and Kamal Singh (PW 4), who had also not supported that the liquor had been seized from the tractor trolley concerned. They only signed the seizure memo in the police station. Both these independent panch witnesses had been declared hostile by the prosecution but in the corss-examination also the prosecution has failed to substantiate that they are deliberately giving false statement in favour of the applicant/ accused specially in the situation when the applicant is having a specific defence that the Police had wrongly brought the tractor from his house and thereafter this false case has been registered against him for the illegal possession of the liquor. ( 9. ) Thus, in view of the aforesaid evidence on record, the prosecution has utterly failed to prove that from the conspicuous possession of the applicant the contraband article, the liquor, had been seized for which the applicant can be held guilty for the offence punishable under section 34 (1) (a) (2) of the Excise Act. Therefore, the impugned judgments passed by the Courts below are liable to be set aside. ( 10. ) Resultantly, the revision petition is hereby allowed. The impugned judgment of conviction and sentence passed by the Courts below are set aside and the applicant is acquitted from the charge under section 34 (1) (a) (2) of the Excise Act. The fine amount, if any, deposited by the applicant be refunded to him. The seized tractor trolley be immediately given to the applicant, who is the registered owner of the tractor concerned. The applicant is on bail, his bail bonds stand discharged forthwith.