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2014 DIGILAW 296 (TRI)

Ripan Paul v. State of Tripura

2014-07-28

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:-- 1. This revisional application under Section 397 read with Section 401 of CrPC is directed against the judgment and order dated 15.03.2006, passed by learned Sessions Judge, South Tripura, Udaipur, in Criminal Appeal No. 36(3)/2005, whereunder, the learned Sessions Judge affirmed judgment and order of conviction and sentence dated 07.09.2005, passed by learned SDJM, Amarpur in case No. 37 of 2005. 2. Heard learned counsel, Mr. S. Lodh for the petitioner and learned Addl. P.P., Mr. R.C. Debnath for the State respondent. 3. Prosecution case, in short, is that based on secret information, Sri. Tapan Debbarma, Sub-Divisional Police Officer, Amarpur, South Tripura, raided the shop(in the name and style, “Paul Electric”) of accused petitioner Ripan Paul at Taidu market, and recovered 12(twelve) numbers of obscene CDs from the possession of accused petitioner, Ripan Paul and seized the same by preparing a seizure list in the presence of the accused and three other witnesses. The accused petitioner was also arrested by the SDPO and thereafter on 18.04.2005, SDPO lodged a written FIR with the O/C of Taidu PS and accordingly Taidu PS Case No. 05 of 2005 under Section 293 of IPC was registered and an investigation was taken up by the O/C of the PS, SI Asit Kr. Das and after investigation he submitted charge sheet against the accused for commission of offence alleged, based on which cognizance was taken and trial was taken up against the accused. 4. In course of trial, charge was framed against the accused for commission of offence punishable under Section 292(2)(a) of IPC to which the accused pleaded not guilty and claimed to be tried. 5. To prove the charge, prosecution examined six witnesses and after closure of prosecution evidence the accused was examined under Section 313 of CrPC and in his turn accused did not adduce any defence evidence. Defence case is the denial of the prosecution case and nothing else. Learned SDJM at the end of trial found the accused guilty of the charge framed against him and accordingly sentenced him to suffer SI for thirty days and to pay a fine of Rs. 2,000/-, in default to suffer SI for fifteen days. Defence case is the denial of the prosecution case and nothing else. Learned SDJM at the end of trial found the accused guilty of the charge framed against him and accordingly sentenced him to suffer SI for thirty days and to pay a fine of Rs. 2,000/-, in default to suffer SI for fifteen days. Aggrieved, the accused petitioner preferred criminal appeal No. 36(3) of 2005 before the Sessions Judge and the learned Sessions Judge by judgment dated 15.03.2006 affirmed the judgment of the trial Court and hence this revisional application. 6. Learned counsel, Mr. Lodh has submitted that the definite case of the prosecution is that on 17.04.2005 at about 1430 hrs., SDPO, Amarpur(PW1) raided the shop of the accused petitioner based on secret information and alleged to have recovered twelve numbers of obscene CDs by preparing seizure list at that very time, i.e. on 17.04.2005 at 1430 hrs. The seizure list has been exhibited. Accused was also arrested on that day which is admitted by PW1 in his deposition before the Court. Admittedly, the distance between the place of seizure and the PS was only half kilometer. But surprisingly, FIR was lodged on 18.04.2005 at about 0935 hrs. There is no explanation of the delay in the FIR or in the deposition of PW1. No explanation was also given by I.O. in the charge sheet or in his evidence. Thus, the delay is fatal and the accused is entitled to get benefit of doubt. Learned Addl. P.P. has fairly submitted that the delay has been explained but according to learned Addl. P.P., even if there is unexplained delay the case is otherwise proved and so for the delay prosecution case shall not be thrown overboard. 7. The informant, i.e., SDPO has been examined as PW1. He has initiated the criminal proceedings. According to him, based on secret information he raided the shop of the accused and recovered twelve numbers of obscene CDs and seized the same. The seizure list has been exhibited and it shows that seizure was made on 17.04.2005 at about 1430 hrs. The prescribed form of FIR which has been exhibited shows that the distance from the place of occurrence and PS was half kilometer. The informant, i.e. the seizing officer is none but a senior police officer of the rank of SDPO. The seizure list has been exhibited and it shows that seizure was made on 17.04.2005 at about 1430 hrs. The prescribed form of FIR which has been exhibited shows that the distance from the place of occurrence and PS was half kilometer. The informant, i.e. the seizing officer is none but a senior police officer of the rank of SDPO. What prompted him in not lodging the FIR on that day has not been explained in any manner. PW1 has admitted that accused was arrested on 17.04.2005. Where he was kept and in connection with which case he was detained has not been explained in the prosecution case at all. According to law, the seizure was supposed to be reported to the nearest Magistrate immediately after the seizure but that also has not been done. The unexplained delay in lodging the FIR is therefore fatal in the prosecution case and the accused is entitled to get benefit of doubt on this ground alone. 8. The next argument advanced by learned counsel, Mr. Lodh is that the ingredient of Section 292(2)(a) has not been proved since there is no evidence to show that the accused kept the alleged obscene CDs for the purpose of sale, distribution or public exhibition or circulation, etc. and hence the ingredient of evidence is not proved. The evidence on record clearly shows that the accused kept the CDs in his shop and he simply denied the seizure whereas the seizure has been proved. So it is to be presumed that such keeping of CDs in the shop might be for the purpose of sale and nothing else. So, this argument has got no merit at all. Learned counsel also argued that the seized CDs were not packed and sealed at the time of seizure and so it cannot be said positively that those were obscene CDs. There is no evidence to show that those were obscene CDs. PWs 1, 2 and 6 stated that obscene CDs were seized. PWs 3 and 4 turned hostile and were cross-examined by the prosecution and their previous statements shows that those were obscene CDs. Since both the trial Court and the appellate Court observed that obscene CDs were seized, at the revisional stage, this Court is reluctant to re-consider those facts as to whether those were obscene CDs or not. 9. PWs 3 and 4 turned hostile and were cross-examined by the prosecution and their previous statements shows that those were obscene CDs. Since both the trial Court and the appellate Court observed that obscene CDs were seized, at the revisional stage, this Court is reluctant to re-consider those facts as to whether those were obscene CDs or not. 9. In view of the discussions made above, the revisional application is allowed. The accused petitioner for the reasons discussed above is entitled to get benefit of doubt and accordingly the judgment and order of conviction and sentence passed by learned SDJM, Amarpur in Case No. G.R. 37 of 2005 vide judgment dated 07.09.2005 and the judgment and order of the learned Sessions Judge, dated 15.03.2006 in Criminal Appeal No. 36(3) of 2005 are set aside. The accused petitioner is acquitted from the charge and set at liberty. 10. Send back the L.C. records along with the copy of the judgment.