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2013 DIGILAW 456 (RAJ)

Raju Ram v. State of Raj.

2013-02-22

NIRMALJIT KAUR

body2013
Hon'ble KAUR, J.—All the above mentioned criminal revision petitions shall stand disposed of by this common order as common question is involved in all these petitions. 2. As per the prosecution story, Raju Ram purchased five drums of sprit from one Hau Ram and the said drums were transported by Shyam Lal Vishnoi to Jodhpur. It was alleged that out of the said five drums, Raju Ram took one and half jerkin of sprit and he prepared country made liquor and sold it to Nirmal Sharma, Om Prakash Khatik, Roopa Ram, Pappa Ram, Harsukh Ram, Kana Ram etc. When the police party raided the house of Raju Ram, one Jerkin filed of sprit was found but as per the FSL report, it contained only Ethyl Alcohol. Apart from that, empty drums were found at the residence of Raju Ram. 3. Total six cases have been registered against the accused Basanti Nat at Sadar Thana, Sashtri Nagar and Basni Police Station as well as Excise Department. 16 cases against accused Kalu Ram, 8 cases against accused Roopa Ram and 2 cases against accused Kishan Lal @ Maharaj have been registered in different Police Stations. 4. On 19.1.2011, the complainant Rajesh Pahadi lodged a written complaint at Police Station Shastri Nagar being FIR No. 33/2011 stating therein that he along with one Manoj, Prafull and other labourers purchased country made liquor on 17.1.2011 from one Kishan alias Maharaj and Sharifa Nat. After consumption of the said liquor, they started feeling unwell and Prafull along with other labourers had to be admitted at M.D.M. Hospital, Jodhpur. It was further stated that on 19.1.2011 at 9:00 A.M. Vijay Pahadi died due to consumption of the country made liquor. Pursuant to died due to consumption of the country made liquor. Pursuant to that, investigation was started and postmortem of the deceased was conducted in the postmortem report, it was found that the alcohol, which he consumed, contained Methyl Alcohol due to which the labourer died. In connection with the aforesaid FIR, a number of accused persons were arrested during the investigation and it was found that Kishan alias Maharaj purchased the liquor from Roopa Ram and Pappa Ram. In connection with the aforesaid FIR, a number of accused persons were arrested during the investigation and it was found that Kishan alias Maharaj purchased the liquor from Roopa Ram and Pappa Ram. Accused Roopa Ram stated that Kalu Ram and Raju Ram are involved in the business of selling country made liquor and he has purchased liquor from them and sold it to Kishan alias Maharaj, who in turn sold it to labourers in Basani and Shastri Nagar areas. It was further ascertained that around 22 people died in Jodhpur and Pali districts because of consuming of the adulterated liquor for which a number of cases have been registered in Jodhpur and Pali. 5. FIR No. 32/2011 was registered by one Dharma Ram at Police Station Basni. During the investigation, a Tempoo bearing registration No. RJ 19 GA 3331 was recovered and naksha mauka was verified by Pappa Ram regarding loading and unloading of illicit liquor as well as area where the illicit liquor splashed and destroyed. As per the investigation, Pappa Ram had loaded five drums from the Durga transport Basni and left them to residence of Raju Ram situated at Khejarli and after receiving the news of death of people, he destroyed the drums & jerricans and splashed in less population area. 6. FIR No. 20/2011 was registered at Dangiawas Police Station, District Jodhpur by one Hema Ram stating therein that on 20.1.2011, his brother Lachhi Ram purchased two quarters of country made liquor from Om Prakash and after consuming the same, he became unconscious and admitted in M.D.M. Hospital, Jodhpur and during the course of treatment, his brother died on 22.1.2011. 7. After completion of investigation, the police filed charge-sheet against all the accused persons under Section 304, 328, 201 120-B of the IPC and 16/54, 54-B, 56 & 54-D of the Rajasthan Excise Act in their respective cases. The cases were committed to the Sessions Court, which were later on sent to the court of Additional Sessions Judge (Fast Track) No. 1, Jodhpur, who after hearing arguments framed charges against the accused-petitioners for offence under Sections 304, 328, 201, 120-B of the IPC and 16/54, 54-B, 56 & 54-D of the Rajasthan Excise Act vide impugned orders. 8. The allegations in the FIR are serious. 8. The allegations in the FIR are serious. It is well settled proposition of law that for the purpose of framing of charge, only a prima facie case has to be seen. In the case of Radhey Shyam vs. Kunj Behari and others reported as 1989 Supp (2) SCC 572, Hon'ble the Supreme Court held that the High Court was not justified in going into meticulous consideration of evidence and appreciate documents and statements filed by the police at the stage of framing of charge and went on to held in para 9 that: "9. The High Court has also deemed it necessary to quash the charge against respondents No.1 to 3 because in its opinion the evidence proposed to be adduced by the prosecution, even if fully accepted, cannot show that respondents No. 1 to 3 committed any offence and referred in that behalf to the decision in State of Bihar vs. Ramesh Singh. We find that the High Court's conclusion about the inadequacy of the evidence against respondents No. 1 to 3, besides being a premature assessment of evidence, is also attributable to the wrong premises on which the High Court's reasoning is based." 9. Similarly, in Sanghi Brothers (Indore) Pvt. Ltd. vs. Sanjay Choudhary and others reported as 2008(4) CRC (Criminal) 640 in paras 10 and 11, it is held. "10. After analysing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima facie case is to applied." 11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. At that stage there is no necessity formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed." 10. At the stage of framing of charge, there is no necessity of formulating the opinion about prospect of conviction. At that stage there is no necessity formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed." 10. At the stage of framing of charge, there is no necessity of formulating the opinion about prospect of conviction. The said distinction has been clearly laid down by Hon'ble Supreme Court in the case of Lal Suraj alias Suraj Singh and another vs. State of Jharkhand reported as (2009) 2 SCC 696. 11. Moreover, Hon'ble the Apex Court in the case of State of Maharashtra vs. Som Nath Thapa etc. reported as 1996(2) RCR (Cri.) 480, has very clearly held that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the pro-secution has to be accepted as true at that stage and held in para 33 as under:- "33. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage." 12. Similar view was also held by the Supreme Court, in the case of State of Orissa and another vs. Saroj Kumar Sahoo reported as 2006(1) R.C.R. (Criminal) 324 = RLW 2996(1) SC 757, while laying down the guidelines at the time of framing of charge, held in para 15 as under:- "15. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the Court to act as if it was a trial Court. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the Court to act as if it was a trial Court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not enquired to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.) vs. Jawahar Lal and others, ( 1992 (3) SCC 317 ), it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Cr.P.C., which cannot be termed as evidence without being tested and proved." 13. Learned counsel for the respondent-State has pointed out that as per the evidence collected and upon investigation, it was found that after receiving delivery from the Durga Transport Company Basni, the accused Hau Lal alias hau Ram was supplied the five drums of spirit to accused Raju Ram. All these five drums were booked by accused Shyam Lal Vishnoi in the name of Vishnu Chemical Balotra at Mahaveer Transport, Balotra for delivering to Samsheer Chemical, Jodhpur. It was further found that these five drums were loaded by Raju Ram in the taxi/tempo of Pappa Ram bearing No. RJ 19 GA 3331 and got these drums unloaded at residential house situated at Khajerli. According to accused Raju Ram. one and half jerrican purchased from au Ram and one and half jerrican purchased from Kalu Ram were mixed and got prepared liquor and sold the same to Nirmal Sharma, Om Prakash Khatik, Roopa Ram, Pappa Ram etc., out of which, Nirmal Sharma supplied the said liquor, whereas Pappa Ram, Roopa Ram etc. sold the liquor themselves and through their agent in Basni and Shashtri Nagar area on 17th and 18 January, 2011 to the labourers and these labourers were got ill and some died. sold the liquor themselves and through their agent in Basni and Shashtri Nagar area on 17th and 18 January, 2011 to the labourers and these labourers were got ill and some died. After knowing the fact of poisonous alcohol he took the remaining drums of sprit to his field by transporting the same in the taxi of Pappa Ram and poured the same in the field and hidden the jerricans. It was further found that Raju Ram used to make liquor from sprit sent by accused Shyam Lal to Kalu Ram Vishonoi. Accused Raju Ram after purchasing the spirit prepared liqure and distributed in Pali area and also sold to Roopa Ram, Pappa Ram. Kishan Lal, Sharifa Nat and Basanti Nat etc. on 17th and 18th January, 2011. Due to adulterated liquor some persons died. It was found that Om Prakash Jakhar was also involved for purchased of spirit tanker from smugglar Amin Deep. Apart from this, accused Pappa Ram was found involved in loading and unloading of spirit drum illegally. Accused, Hau Ram, Mangi Lal were found to be involved in helping accused Shyam Lal Shyam Lal in delivering of five drums of spirit. 14. Thus, as per the prosecution story and facts narrated above, prima facie, the charges are made out. Moreover, It is not disputed that similar S.B. Criminal Revision Petition No. 108/2012 (Om Prakash vs. State of Rajasthan), S.B. Criminal Revision Petition No. 109/2012 (Pappa Ram vs. State of Rajasthan), S.B. Criminal Revision Petition No. 1206/2011 (Hitesh @ Hukmi Chand vs. State of Rajasthan) and S.B. Criminal Revision Petition No. 1152/2011 (Pappa Ram & Anr. vs. State of Rajasthan as well as S.B. Criminal Revision Petition No. 1294/2011 filed by Kaluram against framing of charge was dismissed by this Court vide order dated 20.12.2011. 15. However, in the present petitions, learned Counsel Shri N.K. Bohra has challenged the order of framing charge on a fresh ground. It was contended that special act i.e. Rajasthan Excise Act has since been framed. The allegations made in the various FIRs registered against the petitioners are covered under Section 54-B of the Rajasthan Excise Act. Hence, offence under Section 304, 328, 201 and 120-B of the IPC cannot be framed. 16. Section 54-B of the Rajasthan Excise Act, 1950 reads as under:- "54B. The allegations made in the various FIRs registered against the petitioners are covered under Section 54-B of the Rajasthan Excise Act. Hence, offence under Section 304, 328, 201 and 120-B of the IPC cannot be framed. 16. Section 54-B of the Rajasthan Excise Act, 1950 reads as under:- "54B. Penalty for adulteration resulting in death etc.-(1) Whoever mixes or permits to be mixed with any liquor or intoxicating drug any noxious substance or any substance, which is likely to cause disability or grievous hurt or death to human beings, shall, on conviction, be punishable.- (i) if, as a result of such an act, death is caused to any person, with imprisonment for a term which shall not be less than two years but which may be for life, and with fine which shall not be less than one lakh rupees but which may extend to ten lakh rupees; (ii) if, as a result of such an act, disability or grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may be for life, and with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees; and (iii) in any other case, with imprisonment for a term which shall not be less than one year but which may extend to ten years, and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh and fifty thousand rupees. (2) Whoever omits to take reasonable precautions to prevent the mixing of any noxious substance or any substance which is likely to cause disability or grievous hurt or death to human beings, with any liquor or intoxicating drug shall, on conviction, be punishable, (i) if, as a result of such omission, death is caused to any person, with imprisonment for a term which may extend to ten lakh rupees; (ii) if, as a result of such omission, disability or grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may be for life, and with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees; and (iii) in any other case, with imprisonment for a term which shall not be less than one year but which may extend to ten years, and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh and fifty thousand rupees. (3) Whoever possession any liquor or intoxicating drug in which any liquor or intoxicating drug in which any substance referred to in sub-section (1) is mixed, knowing that such substance is mixed with such liquor or intoxicating drug shall, on conviction, be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten years, and with fine which may extend to one lakh rupees. Explanation.-For the purposes of this section and section 54C the expression "grievous hurt" shall have the same meaning as in section 320 of the Indian Penal Code, 1860 (Central Act No. 45 of 1860)." On the other hand, Section 304 of the Indian Penal Code, 1860 reads:- "304. Explanation.-For the purposes of this section and section 54C the expression "grievous hurt" shall have the same meaning as in section 320 of the Indian Penal Code, 1860 (Central Act No. 45 of 1860)." On the other hand, Section 304 of the Indian Penal Code, 1860 reads:- "304. Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder shall be punished with [1 imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done wither the intention of causing death or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 17. No doubt, the offence under Section 304 of the IPC and offence under Section 54-B of the Rajasthan Excise Act, 1950 are overlapping. However, offence under Section 201 of the IPC i.e. for causing disappearance of evidence of offence or giving false information to screen offender is not covered under the Rajasthan Excise Act. Moreover, Section 26 of the General Clauses Act provides that where an Act or omission constitutes an offence under two or more enactments, the offender shall be liable to be prosecuted under any of those enactments but shall not be liable to be punished twice for the same offence. At the same time, there is no bar in limine on the prosecution to proceed under the General Act for an offence which otherwise lies, merely because the same facts also constitute an offence under the Special Act. Section 26 of the General Clauses Act reads as under: "26. Provision as to offences punishable under two or more enactments.-Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." 18. Provision as to offences punishable under two or more enactments.-Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." 18. A perusal of the said section shows that offender can be prosecuted and convicted under either of the two enactments but he will not be liable to be punished twice as the same will be double jeopardy. thus, the prosecution is maintainable and can lie both under the Special Act and the General Act subject to the overriding consideration that the accused shall not be liable to be punished twice for the same offence. This was clarified by the Hon'ble Apex Court in the judgment rendered in the case of T.S. Baliah vs. T.S. Rangachari, Income Tax Officer, Central Circle VI, Madras, reported in AIR 1969 Supreme Court 701. Para 6 of the judgment reads as under:- "6. We proceed to consider the next question arising in this case, viz., whether the appellant can be prosecuted both under Section 177, Indian Penal Code and Section 52 of the 1922 Act at the same time. It was argued on behalf of the appellant that in view of the provisions of Section 26 of the General Clauses Act (Act 10 of 1897) the appellant can be prosecuted either under Section 52 of the 1922 Act or under Section 177, Indian Penal Code and not under both the sections at the same time. We are unable to accept this argument as correct Section 26 of the General Clauses Act states: "26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case. 19. The Calcutta High Court too in the case of Nathmull Poddar vs. Salil Kumar Chakraborty, reported in AIR 1971 Calcutta page 93 while following the legal points as laid down by Hon'ble the Apex Court as above held that for the contravention of Section 40, Employees' State Insurance Act read with Regulation 26 Employees State Insurance (General) Regulation, though it is punishable under Section 85(a) and (g), proceedings under Sections 406/403 of the IPC are maintainable. The only bar is that the offender cannot be punished twice for the same offence. However, there is no bar to the prosecution or trial under both enactments. 20. No other argument was raised. 21. In view of the above facts, this Court does not find any reason to interfere in the impugned orders framing charges. The present criminal revision petitions are, accordingly, dismissed.