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Himachal Pradesh High Court · body

2009 DIGILAW 20 (HP)

SATISH KUMAR v. STATE OF H. P.

2009-01-06

SURINDER SINGH

body2009
JUDGMENT Surinder Singh, J.:- The instant revision petition has been directed by the petitioners against the judgment passed by learned Additional Sessions Judge, Una in Criminal Appeal (RBT) No. 42/01 of 1999 decided on 9.5.2002 whereby the judgment of conviction and sentence passed by the learned trial Court convicting and sentencing the petitioners to under-go simple imprisonment for six months and to pay a fine of rupees 2000/- under Section 471 read with Section 34 of the Indian Penal Code and Section 61 (1) (a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh has been affirmed. 2. In brief, the facts giving rise to the present petition are that on 31-5-1992, A.S.I. Kishan Chand of the CIA staff of District Police Una was heading the police party and were present at Police Lines Temple at a place known as Jhalera in District Una for the traffic checking. Around 7.20 P.M, a truck bearing registration number HIU 2366 came there from Una side. It was stopped by the Police Party. Karam Chand was found to be the driver-cum-owner of the truck. Besides him, Satish Kumar and Rakesh Kumar were sitting in the cabin of the said truck. On checking, the truck was found carrying three hundred boxes of country liquor of Una No.1 make. Each box contained twelve bottles of 750 ML liquor. A.S.I. Kishan Chand asked about the permit/pass for authorizing them to transport the said liquor. Petitioner Rakesh Kumar produced Pass Exhibit PW1/A bearing permit number 479 dated 30.5.1992. On the proforma (Form No. L-34) alleged to have been signed by Shri Amin Chand Excise and Taxation Inspector (PW15), which was shown to have been valid up to 31.5.1992. As per the pass, it was being permitted to be taken from L-13 Una to L-14A Daulatpur. Karam Chand aforesaid also produce3d G.R. No. 88-9492 Exhibit PW1/B issued by New Himachal Goods Truck Owners Union, Mehatpur for transporting 300 cases of liquor from M/s Anjali Wines L-13 Dehlan to L-14 Daulatpur. It is also alleged that there was no L-13 or L-14 license issued to any one at the said places. However, only L-13A license was found to have been issued at Dehlan for the whole sale of the country liquor but was not in the name of M/s Anjali Wines. On this, A.S.I. Kishan Chand got suspicious about the validity of the pass. However, only L-13A license was found to have been issued at Dehlan for the whole sale of the country liquor but was not in the name of M/s Anjali Wines. On this, A.S.I. Kishan Chand got suspicious about the validity of the pass. Thus, Satish Kumar, occupant of the truck was also found to be the Excise contractor of the country liquor vend at Sansarpur Terrace and the another occupant Rakesh Kumar was the salesman in the said liquor vend. It is alleged that Petitioner Satish Kumar during enquiry admitted that the alleged permit/pass was a forged document. The police seized the whole consignment and took a sample of 180 ml. each from one bottle each out of 50 boxes and sealed them with seal impression ‘KC’. The seal after its use was handed over to Head Constable Subhash Chand. Sample of seal was taken on a piece of paper Exhibit PW15/A. The documents of the truck were taken into possession. A ruka Exhibit PW1/E was sent for registration of the case through constable Ajmer Singh on the basis of which FIR Ex PW12/A was registered under Section 420, 467, 468, 471, I.P.C. and Section 61 (1) (a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh. The police also prepared the site plan Exhibit PW15/B. It is further alleged that during the investigation of the case, Santish Kumar petitioner had disclosed that 3600 bottles were purchased by them from Raj Kumar Manager paying him rupees 61,200/-which were got loaded by Prem Chand and Rakesh Kumar son of Mool Chand salesman and the alleged pass was forged by Raj Kumar Manager himself which was handed over to Satish Kumar and Rakesh Kumar son of Labhu Ram. During the investigation of this case, L-13A at Dehlan was checked by the Excise Inspector Balbir Singh and be found shortages of 307 boxes and eight quarters, 2 boxes and six pints. The driver along with its documents was arrested by the Police. Raj Kumar was produced for taking his handwriting and specimen signatures before the Judicial Magistrate at Una but he refused to to do. The driver along with its documents was arrested by the Police. Raj Kumar was produced for taking his handwriting and specimen signatures before the Judicial Magistrate at Una but he refused to to do. Specimen handwriting and signatures of Amin Chand Excise Inspector were obtained and sent for the examination to the Government Examiner of Questioned Documents, Shimla but it did not tally with his writings and signatures on the aforesaid pass and also with the handwriting and signatures of Satish Kumar and Rakesh Kumar son of Shri Labhu Ram. During the interrogation, Police also came to know that the petitioner Satish Kumar was involved in transporting the liquor to his Sansarpur Terrace liquor vend at earlier occasions also in a similar way. After recording the statements of witnesses and collecting the evidence against them, the challan was presented against the petitioners and also Raj Kumar, Prem Chand and Rakesh Kumar son of Shri Mool Chand under the aforesaid sections for their trial in the court. All the accused persons were charge-sheeted for the offences punishable under Section 457, 468 and 471 of the Indian Penal Code and Section 61 (1) (a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh. They pleaded not guilty and claimed trial. 3. To prove its case, the prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. They pleaded their innocence and according to them, the Excise Department in connivance with the Police has foisted a false case against them. The accused persons did not lead any defense. 4. After hearing the parties and upon going through the evidence on record, learned trial Court convicted the petitioners under Section 471 read with Section 34 of the Indian Penal Code and Section 61 (1) (a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh read with Section 34, I.P.C whereas, the accused Raj Kumar son of Mool Chand and Rakesh Kumar son of Prem Chand were acquitted. Accordingly the petitioners were sentenced as aforesaid. 5. Feeling aggrieved and dis-satisfied bythe impugned judgment of conviction and sentence, they filed the appeal in the Court of Sessions which came to be decided by learned Additional Sessions Judge. Accordingly the petitioners were sentenced as aforesaid. 5. Feeling aggrieved and dis-satisfied bythe impugned judgment of conviction and sentence, they filed the appeal in the Court of Sessions which came to be decided by learned Additional Sessions Judge. Vide his detailed judgment dated 9.5.2002, the appeal of the petitioners was dismissed and now the petitioners have filed the present petition assailing the conviction and sentence passed by the courts below. 6. Shri N.K. Thakur, learned counsel for the petitioners has vehemently argued that the learned trial Court has gravely erred in convicting and sentencing the petitioners and attached undue importance to the contradictory statements of the prosecution witnesses which were not worth inspiring confidence. Further, according to him, the person who is alleged to have forged the permit was acquitted and the present petitioners had nothing to do with the liquor in question. The investigation of the case was not above board and further that independent witnesses were not joined during the alleged recovery and further argued that at any rate, the sentence is disproportionate to the alleged commission of offence which requires to be interfered with. 7. Contra, Shri J.S. Guleria, learned law officer representing the State, while supporting the judgment of conviction and sentence passed by learned trial Court and affirmed in appeal, has forcefully argued that the courts below have rightly appreciated and re-appraised the evidence in thread ware and in the instant case, no law point is involved, therefore, the revision petition filed by the petitioners deserve to be dismissed. 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the record in order to find out the legality, propriety and correctness of the judgment and order of conviction passed by learned trial Court and affirmed in appeal against the petitioners. 9. In fact, the recovery of 3600 bottles in 300 boxes of country liquor from Truck No. HIU 2366 stands proved. It also stands proved that the said truck was hired for transporting the same and at the relevant time, Shri Karam Chand the owner of the truck was driving the said truck. The petitioners herein were also travelling in the said truck. The petitioner Satish Kumar had produced the permit Exhibit PW1/A showing the authorized transportation of the said liquor forged. The petitioners herein were also travelling in the said truck. The petitioner Satish Kumar had produced the permit Exhibit PW1/A showing the authorized transportation of the said liquor forged. Permit / Pass Exhibit PW1/A was alleged to have been signed by PW15 Excise Inspector Amin Chand. Amin Chand aforesaid testified on oath that he never issued the said Pass nor it bears his signatures and he has categorically stated that the pass aforesaid was not issued by their excise office. 10. Amin Chand (PW15) further proved his specimen signatures Exhibit PW3/4 taken before the Magistrate and also his applications for leave, Exhibit PW8/A to PW8/C from his office. In cross-examination, he has clearly stated that proforma of Exhibit PW1/A was not issued by their office. PW3 Shri C.L. Kochhar, the then Judicial Magistrate has also admitted having taken the specimen signatures of Amin Chand in his presence during the investigation of this case and also the specimen signatures and writings of Raj Kumar son of Shri Labhu Ram and Satish Kumar. Their signatures along with the signatures of Amin Chand were sent for examination to the Expert in the laboratory and according to the opinion rendered by Dr. B.A. Vaid (PW12), the document expert, after careful and thorough examination, found that the said Pass (Ex.PW1/A) did not contain the writings and signatures of Amin Chand. 11. In the above background the statement of PW10 Nanak Chand Deputy Excise and Taxation Commissioner assumes importance, who at the relevant time, was posted as Assistant Excise and Taxation Commissioner at Una. Amin Chand Excise Inspector was working under him and testified that he was acquainted with his hand writing and signatures and the proforma of the pass Exhibit PW1/A was neither issued by their office nor it bears the signatures of Amin Chand. 12. According to A.S.I. Kishan Chand (PW16), the petitioner Rakesh Kumar had produced the permit Exhibit PW1/A whereas the GR Exhibit PW1/B was produced by Karam Chand Driver. He categorically stated that there was no such wine shop of L-13 under the name and style of M/s Anjali Wines at Dehlan nor there was any L-14 Liquor Vend at Daulatpur. 13. According to A.S.I. Kishan Chand (PW16), the petitioner Rakesh Kumar had produced the permit Exhibit PW1/A whereas the GR Exhibit PW1/B was produced by Karam Chand Driver. He categorically stated that there was no such wine shop of L-13 under the name and style of M/s Anjali Wines at Dehlan nor there was any L-14 Liquor Vend at Daulatpur. 13. The Log Book Exhibit PW1/D of the truck which was also taken into possession by the Police it had also shown the transportation of 300 boxes of country liquor from Mehatpur to Terrace Dada Siba in the name of Satish Kumar petitioner which fact has not been assailed in his cross-examination. 14. The presence of Rakesh Kumar petitioner and the interception of truck has been admitted, but the presence of Satish Kumar has been disputed but the official witnesses have categorically stated about the presence of Satish Kumar, in the truck at the relevant time. Further he was shown as the owner of the said books in the log book as stated above. 15. On the scrutiny of the aforesaid evidence, there is no doubt rather it stands ostensibly proved that the petitioners were the occupants of the vehicle in question which was having a unpermitted load of 300 boxes of the country liquor which was being transported by them under a forged document Exhibit PW1/A. The said permit / pass was fraudulently used by the petitioners as a genuine with the knowledge and also with a reasonable belief, that it was a forged one which fact stands established from the statements of the witnesses aforesaid. Therefore, in the circumstances, the offence committed by the petitioners squarely falls under Section 471 of the Indian Penal Code and both the petitioners have acted in furtherance of their common intention thus they were rightly convicted under section 471 of the Indian Penal Code which lays down that the sentence that can be imposed for the offence of using a forged document as that of the offence of forgery which is punishable under Section 467 of the Indian Penal Code, it provides punishment of imprisonment which may be extended up to two years or with fine or with both. 16. Therefore, for the fore-going reasons, the conviction and sentence passed by the learned trial Court and affirmed in appeal for the said offence is not disproportionate and is legally and factually sustainable. 16. Therefore, for the fore-going reasons, the conviction and sentence passed by the learned trial Court and affirmed in appeal for the said offence is not disproportionate and is legally and factually sustainable. The revision petition is accordingly dismissed.