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2011 DIGILAW 2477 (RAJ)

Prem Singh v. State of Rajasthan

2011-11-17

SANDEEP MEHTA

body2011
JUDGMENT 1. - Heard learned counsel for the petitioner and the Public Prosecutor. Perused the impugned orders. 2. The petitioner was convicted for the offence under Section 16/54 of the Rajasthan Excise Act by the learned Judicial Magistrate, First Class, Nathdwara by his judgment dated 12.2.1991 passed in Criminal Original Case No. 351/1986 and was sentenced to four months rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine to further undergo seven days' rigorous imprisonment. An appeal filed against the said judgment and order dated 12.2.1991, being Criminal Appeal No. 161/1991, too has been dismissed by the learned Sessions Judge, Rajsamand (for short "the Appellate Court") vide judgment dated 19.9.1995. 3. Assailing the judgment and order dated 12.2.1991 passed by the learned trial Court and affirmed by the learned lower Appellate Court vide judgment dated 19.9.1995, learned counsel for the petitioner submits that in this case there is no evidence on record to show that the petitioner was in any manner connected or concerned with the liquor recovered. He further submits that the prosecution has come out with the story that as many as seven pitchers of excited wash were found by the Excise Party but all of them had been destroyed at the spot and only two samples of 200 mili-liters were taken from one of the pitchers. He, thus submits that firstly since the recovery has been made from the river-bed which was admittedly not in possession of the petitioner and secondly since no representative sample was taken from the total quantity of the alleged wash, therefore, it cannot be said that the petitioner was found in possession of the liquor in excess of three bottles, which one is entitled to keep without a license. 4. Learned Public Prosecutor opposes the revision petition and submits that in this case, the petitioner was seen running away from the seen of the occurrence and thus it can be assumed that the liquor in question was prepared and stored by the petitioner. She further submits that since the Excise Officer/official can sense the presence of alcohol in liquor by their own experience, therefore there was no requirement of taking a representative sample from the total number of pitchers found by the excise party. 5. I have given my thoughtful consideration to the rival arguments made at the bar and perused the record of the case. 6. 5. I have given my thoughtful consideration to the rival arguments made at the bar and perused the record of the case. 6. Admittedly, as per the recovery memo Ex.P1, the recovery had been made from the bed of Banas river. The place from where the recovery has been made, has not been shown to be in the exclusive or conscious possession of the petitioner. Further more, admittedly the recovery memo speaks about the presence of excited wash in the seven pitchers. As per Notification No. 59-J dated 18.12.1961, a person can possess liquor to the extent of 2.25 liters without any license. Two samples which have been taken from the recovered articles have been taken from one pot and that too measuring 200 mili liters each. Thus it cannot be said that recovery of any quantity in excess of aforementioned volume of 2.25 liters of country-made liquor was made in this case. Thus, this Court is of the opinion that neither the prosecution has been able to prove that the recovery of fermented wash was found from the exclusive possession of the petitioner, nor is there any evidence on record to show that any excisable articles in excess of permissive limit, as prescribed in the Notification No. 59-J dated 28.12.1961 was, recovered from the petitioner. One more circumstance which vitiates the conviction of the petitioner is the debatable evidence given by the prosecution regarding identification of the petitioner. 7. It may be mentioned here that at the trial, two motbirs to recovery, viz. PW-1 Parbat Singh and PW-2 Keshar Singh, at whose instance the petitioner was identified, have not supported the prosecution story. The Excise Officer PW-3 Bhanwar Singh, has stated that the persons standing nearby, namely PW-1 Parbat Singh and PW-2 Keshar Singh, disclosed the name of the accused, but these two persons, as stated above have not supported the prosecution story. Accordingly, this Court is of the opinion that the identity of the petitioner has not been established by any evidence whatsoever. 8. Resultantly, the revision petition succeeds and is allowed. The impugned judgment and order dated 12.2.1991 passed by the Judicial Magistrate, First Class, Nathdwara convicting and sentencing the petitioner as also the impugned judgment dated 19.9.1995 passed by the learned Sessions Judge, Rajsamand, affirming the judgment and order of the trial Court, are set aside and the petitioner is acquitted of the charges. The impugned judgment and order dated 12.2.1991 passed by the Judicial Magistrate, First Class, Nathdwara convicting and sentencing the petitioner as also the impugned judgment dated 19.9.1995 passed by the learned Sessions Judge, Rajsamand, affirming the judgment and order of the trial Court, are set aside and the petitioner is acquitted of the charges. The petitioner is on bail and his bail bonds are discharged.Revision Petition allowed. *******