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2013 DIGILAW 254 (GUJ)

BHAVARLAL FUGLUJI VISHNOI v. STATE OF GUJARAT

2013-05-03

R.D.KOTHARI

body2013
Judgment KOTHARI, J. Propriety of imposing maximum sentence, that is imposable under Sec. 65 of the Bombay Prohibition Act is in issue in this case. 2. The facts of the case are thus : Police had said to have information that Rajasthan-Gujarat the border i.e. at Palanpur, District: Banaskantha is used for transit of illicit liquor. Pursuant to that information, police personnel of Ahmedabad (prohibition) taking help of Palanpur (Prohibition) Police had kept watch at the said border area on 6-8-2003. Police had solicited assistance of two panchas for this operation. Preliminary, panchnama was also drawn in this regard. It is the say of the prosecution that after waiting for over an hour, one jeep-car bearing Registration No. RJ-60G-0683 came from Rajasthan State boarder. Police had given signal to the said jeep-car to stop, however, according to the prosecution, ignoring the signal of the police, jeep-car had proceeded towards Deesa. Police party had successfully chased them and on inspecting/ searching the said jeep, it is alleged that 59 boxes containing 2004 bottles of foreign liquor were found. The present two petitioners were in the said jeep-car. Police had inquired about the pass permit etc. for liquor to which the petitioners had said to have replied that they had no pass or any permit papers. Thereafter, the police had carried out necessary formalities whereby muddamal liquor and jeep-car were seized and the petitioners were arrested. Police Inspector (Prohibition) Mr. Vaghela had lodged the complaint with Palanpur Prohibition Police Station against the present petitioners, which was registered as C.R. No. 835 of 2003, for the offences punishable under Secs. 65(a), (e), 66(1)(b), 116 and 81 of the Bombay Prohibition Act. 3. On completion of investigation, police filed charge-sheet against the accused present petitioners for the offences punishable under Secs. 65(a), (e), 66(1)(b) and 81 of the Bombay Prohibition Act, in the Court of learned J.M.F.C., Deesa, which was registered as Criminal Case No. 3548 of 2003. 4. Before the learned J.M.F.C., Deesa, prosecution has examined almost all police personnel of the raiding party. Prosecution has examined 7 police personnel who were members of the raiding party. Besides them, the complainant and I.O. are also examined. P.S.O. Mr. Kesharimal Mularam and two panchas of seizure panchnama are also examined by the prosecution. 5. It appears that both the petitioners had opted before the trial Court to engage separate lawyers. 6. Prosecution has examined 7 police personnel who were members of the raiding party. Besides them, the complainant and I.O. are also examined. P.S.O. Mr. Kesharimal Mularam and two panchas of seizure panchnama are also examined by the prosecution. 5. It appears that both the petitioners had opted before the trial Court to engage separate lawyers. 6. The learned trial Court upon completion of recording of evidence of prosecution witnesses and after hearing the learned Advocates for the parties, found the petitioners guilty for the offences for which they were charged. The learned Magistrate by judgment and order dated 16-10-2003 convicted both the accused for the offences under Secs. 65(b) and 66(1)(b) of the Bombay Prohibition Act and sentenced them to suffer R.I. for three years and to pay fine of Rs.3,000/- each, in default, to undergo further R.I. for 30 days for the offence punishable under Sec. 65(b) and (e) of the Bombay Prohibition Act. They were also sentenced to undergo R.I. for six months and to pay fine of Rs.1,000/- for the offence punishable under Sec. 66(1)(b) of the Bombay Prohibition Act. 7. While convicting the• accused, the learned Magistrate recorded following findings :- (i) From the material on record, it is possible to believe that the muddamal goods/liquor is foreign liquor. (ii) Since these muddamal foreign liquor bottles were found from the jeep-car which was driven by one of the petitioners, Sec. 103 of the Bombay Prohibition Act would be attracted. That it can be said that the present petitioners were in conscious possession of the muddamal. (iii) Merely because the panchas of the seizure panchnama have turned hostile, case of the prosecution cannot be rejected, inasmuch as there is reliable evidence of police personnel. (iv) Nor the case of the prosecution can be rejected on the ground that I.O. has not recorded statement of manufacturer of muddamal liquor bottles. The Court has also found that name and address and the labels on the bottles appear to be original. (v) The case-laws relied upon by the learned Advocate for the accused are not applicable to the present case. 8. The judgment and order of conviction and sentence of the learned trial Court was challenged by the accused petitioners herein before the Sessions Court, Banaskantha at Deesa by preferring Criminal Appeal No. 29 of 2003. (v) The case-laws relied upon by the learned Advocate for the accused are not applicable to the present case. 8. The judgment and order of conviction and sentence of the learned trial Court was challenged by the accused petitioners herein before the Sessions Court, Banaskantha at Deesa by preferring Criminal Appeal No. 29 of 2003. The learned Additional Sessions Judge, Deesa, while dismissing the appeal, arrived at the following conclusions : (i) Since the muddamal liquor bottles were seized from the territory of Gujarat, submission that muddamal liquor bottles were meant for use in Rajasthan only has no substance. (ii) The submission that the accused did not understand the proceedings conducted against them, and therefore, the trial is vitiated is not possible to accept in the present case mainly because no sincere efforts in this regard appear to have made by the accused before the trial Court. (iii) It is not possible to accept that the case of the prosecution should be rejected because at the time of seizure, no identification markings were placed on the muddamal bottles. Neither this discrepancy nor the fact that panchas have turned hostile vitiates the case of the prosecution. (iv) The trial Court has properly appreciated the evidence led before it and reference and reliance on statutory presumption made by the learned trial Court is proper and legal. (v) The submission that the sentence imposed by the learned trial Court is bad and illegal and beyond the powers of the learned trial Court is not possible to accept in view of Sec. 115 of the Bombay Prohibition Act. 9. Heard learned Advocate Mr. V.C. Vaghela for the petitioners and learned A.P.P. Mr. N.I. Shah for the State, at length. 10. Learned Advocate Mr. Vaghela for the petitioners submitted that both the Courts below have committed serious error of law and facts, and therefore, interference by this Court is called for in exercise of revisional jurisdiction. Mr. Vaghela has mainly made two-fold submissions. Firstly, the petitioners are non-Gujaratis and trial conducted against them in vernacular, i.e. Gujarati language, is vitiated, inasmuch as the petitioners do not understand the proceedings going on against them. Secondly, the muddamal liquor bottles were meant for use in Rajasthan only and police had erroneously intercepted the jeep-car and seized muddamal liquor bottles, which were to be delivered in Rajasthan. 11. Learned A.P.P. Mr. Secondly, the muddamal liquor bottles were meant for use in Rajasthan only and police had erroneously intercepted the jeep-car and seized muddamal liquor bottles, which were to be delivered in Rajasthan. 11. Learned A.P.P. Mr. N.J. Shah for the State submitted that no interference is called for in concurrent findings and conclusions recorded against the present petitioners. It was submitted that no case is made out by the petitioners for interfering in the present revision application and the revision application deserves to be dismissed. 12. The above-referred to two submissions advanced by learned Advocate Mr. Vaghela were also advanced by the petitioners before the learned Additional Sessions Judge. As referred above, the learned Additional Sessions Judge was pleased to reject these submissions. The learned Additional Sessions Judge has not committed any error in rejecting the submissions of the petitioners. 13. The submission that muddamal liquor bottles were meant for delivery and use in Rajasthan only is not possible to accept mainly because the petitioners had no pass, permit or relevant papers in 5upport of their assertion. I.O. agrees in his cross-examination that the accused did tell to the police that muddamal liquor bottles were loaded at Mandar and were to be delivered at Sanchor. Presumably both these places are in Rajasthan. However, not having necessary pass or permit for carrying such a huge quantity of liquor, and secondly, passing through Gujarat border with such a quantity of liquor makes the assertion of the petitioners unacceptable. Similarly, the submission of the petitioners that they do not understand Gujarati, and therefore, trial is vitiated is also satisfactorily considered by the learned Additional Sessions Judge. It was not pointed out at the time of hearing that how the learned Additional Sessions Judge has committed an error and how the trial is vitiated on this ground. The reasons given by the learned Additional Sessions Judge in rejecting this submission are just, legal and proper and no interference is called for. 14. One of the principal submissions made before the learned Additional Sessions Judge was that the sentence imposed by the learned trial Court is bad and illegal. This submission was also rejected by the learned Additional Sessions Judge. Sentence imposed by the learned trial Court is referred earlier. 15. 14. One of the principal submissions made before the learned Additional Sessions Judge was that the sentence imposed by the learned trial Court is bad and illegal. This submission was also rejected by the learned Additional Sessions Judge. Sentence imposed by the learned trial Court is referred earlier. 15. In order to consider whether the sentence imposed by the learned trial Court is proper and legal or not, relevant statutory provisions may be referred to. 16. In Sec. 65, the maximum sentence provided is of three years and therein minimum sentence is also provided. The minimum sentence is provided by classifying the offence as 1st, 2nd and 3rd time offence, means if the accused is convicted for the 2nd time for the offence under this Section, then the minimum sentence to be awarded is nine months. For the 3rd time offence, the minimum sentence to be awarded is for one year. For the first offence, the minimum sentence provided is six months. It may be noted that along with the imprisonment, Court is also required to impose fine. Minimum fine to be imposed as provided in the said provision. 17. Section 65(a) and (e), with which we are concerned, deals with illegal import/export of intoxicant and/or illegal selling or buying of it, while Sec. 66(1)(b) deals with illegal use, consumption or possession or transportation of any of the intoxicants. Therein also, different sentences of imprisonment are provided on graduated scale. The minimum sentence for the first offence is six months. Therein also, the Court is required to make order for fine also. 18. In the present case, it is not the say of the prosecution that either of the appellants were ever convicted earlier for the offence under the provisions in issue. This is the first offence of the accused. Further, the Court can order under Sec. 65 even less than minimum sentence by mentioning/assigning special and adequate reasons. It hardly needs to be stated that it is the facts and circumstances of any given case only that would disclose what sentence would be just and proper. In other words, facts and circumstances of the case would spell out proper period of imprisonment. Generally, in every prohibition cases that have sailed successfully upto the stage of conviction, the period of sentence in all those cases will be within the period of minimum and maximum sentences provided under Sec. 65. In other words, facts and circumstances of the case would spell out proper period of imprisonment. Generally, in every prohibition cases that have sailed successfully upto the stage of conviction, the period of sentence in all those cases will be within the period of minimum and maximum sentences provided under Sec. 65. The intention of the Legislature with reference to sentence can be appreciated from the legislative provisions itself. While to travel beyond the limit of maximum period of imprisonment is impermissible, to award less than minimum, if special and adequate ground exists is permissible. Importance of incident or offence under Sec. 65 can hardly be over emphasised as no offence under Sec. 65 can be so grave that it needs imprisonment of over three years. In the context of present case, before referring to the facts/circumstances to appreciate the gravity of offence under Sec. 65, two distinctive features of the Section may be stated again. They are : (i) conditional power conferred on Court to award less than minimum sentence, and (ii) one of the tests of gravity of offence is repeating the same offence by the same accused. 19. In the present case, apart from the say of the accused that they do not understand Gujarati language, the say of the prosecution that as much as 59 boxes were found in Mahindra Jeep is somewhat difficult to swallow, even if it is true. It is true that once the case for conviction is accepted, such aspect lose much of its importance, but little close consideration of evidence on this point would show that it would not be just and proper to dismiss this aspect as an immaterial or irrelevant. It may also be noted that both the lower Courts have not considered at all this aspect. Further, it appears that in awarding the sentence, the say of the prosecution that petitioners were carrying huge quantity of intoxicants in their jeep, had weighed with the Court. In cross-examination, member of the raiding party say that size of each box is 1 ft. x 1.5 ft. Further, the witness says that it is true that height of the hood/top of the jeep would be about 4 ft. from the base/floor of the jeep. The witness further says that it is true that rear side space of the jeep is 4 ft. x 4 ft. x 1.5 ft. Further, the witness says that it is true that height of the hood/top of the jeep would be about 4 ft. from the base/floor of the jeep. The witness further says that it is true that rear side space of the jeep is 4 ft. x 4 ft. If it is so, then it is difficult to appreciate how the space i.e. 4 ft. x 4 ft. in length and width and with height of about 4 ft. can have 59 boxes each box of the size of 1 ft. x 1.5 ft., containing in all 2004 bottles, howsoever small each bottle may be can be concealed. Even in theory, it requires invention of very high order in mathematics to accommodate all muddamal boxes of intoxicant bottles in the space suggested by the police. Thus, though concurrent finding of conviction of Court below is not interfered with by this Court, as the submission in that regard is found to be unacceptable, it may be stated that say of the prosecution as to the volume of intoxicant involved in this case is not free from exaggeration. 20. It is the say of the petitioners that these goods were for consumption in Rajasthan. The Investigating Officer in his cross-examination agrees that accused did say so. Thus, the goods were not meant for consumption in Gujarat. What is important is this assertion found support from the panchnama prepared by the police. It is material to note that in the panchnama, it is recorded that label affixed on the bottles itself reads, for consumption in Rajasthan only. Thus, there appears to be substance in the say of the petitioners. It is true that despite the bottles containing such description for consumption in Rajasthan only, it can be used and consumed in Gujarat also but, that is not the point. If the veracity of the say of the accused in this regard is to be tested, then it can be said that say of the accused finds support from cross of the Investigating Officer and from the seizure panchnama also. The route of Mandor and Sanchor is not known to the Court. Why the accused required to pass through the Gujarat is also lay in grey area. On the other hand, the prosecution has no evidence as to the import or export or buying or selling of any of the seized goods. The route of Mandor and Sanchor is not known to the Court. Why the accused required to pass through the Gujarat is also lay in grey area. On the other hand, the prosecution has no evidence as to the import or export or buying or selling of any of the seized goods. The jeep car coming from Rajasthan and passing through the Gujarat State had been intercepted and raided by the police. 21. In view of above, sentence imposed by the learned trial Court cannot be said to be proper. The facts and circumstances of the case, viz., it is a first offence of the petitioners, mismatch between the say of the prosecution as to the volume of intoxicants and capacity of muddamal jeep to contain that quantity, absence of evidence as to buying, selling and import etc. not at all considered by the Court. Imposition of maximum sentence in the circumstances of the case is erroneous and it requires interference in Revision. 22. In the facts and circumstances of the case, in my opinion, sentence of seven months imprisonment for the offence under Sec. 65(e) and six months imprisonment for the offence under Sec. 66(1)(b) imposed on the appellants would meet the ends of justice. It is clarified that the order of imposition of fine and sentence in default of fine, is not interfered. The sentence of imprisonment awarded herein would run concurrently. Imprisonment suffered by the petitioners shall be adjusted against the sentence awarded. The appeal is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. R. & P. be sent back to the trial Court concerned. (NRP) Appeal allowed.