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2014 DIGILAW 393 (TRI)

Pradip Das v. State of Tripura

2014-11-24

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This revisional application under Section 397 read with Section 401 of Cr.P.C. is directed against the judgment and order dated 12.07.2007, passed by the learned Additional Sessions Judge, Belonia, South Tripura, in Criminal Appeal No. 12(2) of 2007, whereunder the learned Additional Sessions Judge upheld the judgment and order of conviction and sentence dated 21.05.2007, passed by the learned Sub-Divisional Judicial Magistrate, Belonia, South Tripura, in Case No. G.R. 155 of 2005 under Section 292 of IPC. 2. Heard learned counsel, Mr. S. Sarkar for the petitioner and learned Additional Public Prosecutor, Mr. R.C. Debnath for the State-respondent. 3. The prosecution case is that on 27.07.2005 at about 1435 hours, A.S.I. Shyamal Roga of P.R. Bari Police Station along with staff went out of the P.S. for Barpathari, West Piparia Khala etc. areas for mobile duty/Misc. enquiry etc. A copy of that G.D. Entry has been proved as Exbt.5/1. At about 08-30 pm while he was at Rajnagar market, he got some secret information that the accused-petitioner, Pradip Das, kept stored some vulgar/obscene C.D. cassettes in his Cassette Shop at Rajnagar market and on that information he (PW4) with staff in presence of other witnesses searched the shop of accused Pradip Das and recovered 13 numbers of vulgar/obscene C.D. cassettes from his shop and seized the same by preparing seizure list. On return to the P.S., he lodged the FIR on 28.07.2005 at 0630 hours. Consequently, P.R. Bari P.S. Case No. 32/2005 under Section 292 of IPC was registered and S.I. Pranab Deb Barma after investigation submitted charge sheet against accused Pradip Das for commission of offence punishable under Section 292 of IPC. 4. Cognizance was taken on the basis of police report and in course of trial, the accused was examined under Section 251 of Cr.P.C., to which he pleaded not guilty and claimed to be tried. Prosecution examined six witnesses to prove the charge and also proved some documents and materials, such as, FIR, hand sketch map, G.D. Entry, seized cassettes etc. At the conclusion of the trial, learned SDJM, Belonia found accused-petitioner guilty of the charge and sentenced him to suffer R.I. for two years and to pay a fine of Rs. 2,000/-, in default of payment of fine to suffer further S.I. for six months. At the conclusion of the trial, learned SDJM, Belonia found accused-petitioner guilty of the charge and sentenced him to suffer R.I. for two years and to pay a fine of Rs. 2,000/-, in default of payment of fine to suffer further S.I. for six months. The accused-petitioner preferred Criminal Appeal No. 12(2) of 2007 and the learned Additional Sessions Judge by Judgment dated 12.07.2007 upheld the Judgment and order of conviction and sentence passed by learned SDJM, Belonia, South Tripura. 5. Hence, this revisional application. 6. Learned counsel, Mr. S. Sarkar for the petitioner has submitted that the basic ingredients of Section292 are absent. There is no evidence that the accused was selling or letting on hire or was distributing or publicly exhibiting any such obscene cassettes and since there is no such evidence, the trial Court and the appellate Court wrongly arrived at a finding of guilt of the accused-petitioner and hence, the judgment and order of conviction and sentence is liable to be set aside. He has also submitted that there were almost 400/450 shops in the market, but none of the shopkeepers were witness to the seizure list. The witnesses to the seizure are interested witnesses and hence, the seizure is liable to be disbelieved. He has further pointed out that the alleged seizure was made on 27.05.2005 at about 08-30 pm and in his evidence PW4 stated that he returned to P.S. at about 12 pm, but the FIR was lodged on the following day at about 06-30 am. This delay has not been explained and so, prosecution case has become doubtful for non-explanation of the delay. He has also submitted that the witnesses contradicted each other on material point and hence, the evidence of the prosecution witnesses should not have been believed by the trial Court and the appellate Court. It is also argued by Mr. Sarkar that PW4 allegedly searched the shop of the accused without having a search warrant and thereby violated the provisions of Section 94 of the Cr.P.C. and benefit should go to favour the accused-petitioner. 7. Learned Additional P.P. has submitted that the trial Court and the first appellate Court meticulously examined and appreciated the evidence and this Court need not re-appreciate it. 7. Learned Additional P.P. has submitted that the trial Court and the first appellate Court meticulously examined and appreciated the evidence and this Court need not re-appreciate it. He has also submitted that the search and seizure have been proved and PW4 being an ASI considering urgency of the facts and circumstances of the case searched the shop of the accused as otherwise the accused would remove the cassettes from the shop if those were not seized at that very point of time. Learned Additional P.P., therefore, prayed for upholding the conviction and sentence. 8. While exercising power under Section 397 read with Section 401 of Cr.P.C., this Court is to see correctness, legality and propriety of the judgment/order passed by the inferior Court and to see the regularity of the proceeding. The jurisdiction to interfere in exercise of revisional power is very limited. This power is not required to be exercised to upset concurrent findings of fact recorded by two Courts below on proper appreciation of evidence. It is only in those rare and exceptional cases where the appreciation of evidence is found to be wholly unsatisfactory or the conclusion drawn from the same perverse in nature, causing miscarriage of justice that the Court may correct the course of justice and undo the wrong, perversity in the findings, illegality or irregularity in the trial that results in injustice or failure to take into consideration an important piece of evidence are some of the situations in which this Court may reappraise the evidence adduced at the trial but not otherwise. 9. It is the case of the prosecution that while on a mobile duty on 27.07.2005 at about 08-30 pm based on secret information that the accused kept stored vulgar/obscene C.D. cassettes in his shop for sell and/or to let them on hire and or distribute them to young generation of the local people, PW4 with staff in presence of independent witnesses of the locality searched the shop and recovered 13 numbers of vulgar/obscene cassettes and seized the same in presence of the witnesses. Accused Pradip Das was also detained. The accused-petitioner adduced no defence evidence. No definite defence case suggested or put forward. During cross-examination of the prosecution witnesses only suggestions were put that a false case was instituted. Accused Pradip Das was also detained. The accused-petitioner adduced no defence evidence. No definite defence case suggested or put forward. During cross-examination of the prosecution witnesses only suggestions were put that a false case was instituted. In his examination under Section 313 of Cr.P.C also the accused stated nothing except that a false allegation has been made against him. 10. PWs 1 and 2 are neighbouring shopkeepers of the accused. Both the witnesses witnessed the police raid in the shop of the accused. P.W. 1 stated about the seizure of the cassettes. PW2 stated that he heard about the seizure of the obscene cassettes. There is nothing in the cross-examination of those two local witnesses. The submission of learned counsel, Mr. Sarkar that no shopkeeper witnesses were examined, therefore, does not stand good. PWs 3 and 5 are the seizure witnesses. The trial Court as well as the appellate Court meticulously examined the evidence of PWs 3 and 5 coupled with the evidence of PW4 and arrived at a consistent finding that 13 numbers of obscene cassettes were seized from the shop of the accused and the accused was also detained. 11. Submission of learned counsel, Mr. Sarkar is true that seizure of those cassettes were not made when the accused was actually selling or letting on hire or distributing or publicly exhibiting the obscene cassettes. Sub Section (2) of Section 292 clearly prescribes that whoever sells, lets to hire, distributes, publicly exhibits or in any manner puts in to circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees. 12. According to the prosecution, the accused had been running a cassette parlour. On raid PW4 recovered 13 numbers of obscene cassettes in presence of the witnesses. Recovery of those cassettes has been proved by the evidence of PWs 1, 2, 3, 4 and 5. 12. According to the prosecution, the accused had been running a cassette parlour. On raid PW4 recovered 13 numbers of obscene cassettes in presence of the witnesses. Recovery of those cassettes has been proved by the evidence of PWs 1, 2, 3, 4 and 5. I find no justification at all to scrutinize the evidence once again while the trial Court and the appellate Court carefully scrutinized it and arrived at a finding on proper appreciation. There is no perversity in the appreciation of evidence. 13. Mere possession of obscene cassette itself an offence punishable under Section 292 of IPC, if it is kept for selling, or letting to hire or for distributing or for publicly exhibiting. The accused kept such 13 numbers of obscene cassettes in his shop obviously for the purpose of sell etc. or otherwise he would not keep them in his shop. A presumption irresistibly may be drawn that the accused kept them for sale etc. and nothing else and, therefore, argument of learned counsel, Mr. Sarkar on the point has no merit for consideration. 14. The FIR was registered on 28.07.2005 at 0630 hours. It is true that PW4 in his cross-examination stated that probably prior to 12-00 pm on 27.07.2005 he returned to P.S. and after one and half hours he lodged the FIR. If it was so, why the case was registered at 0630 hours has not been explained. This delay in lodging FIR seems to be totally insignificant in the facts and circumstances of the case. 15. Law has not fixed any particular time for lodging FIR. Hence, a delayed FIR itself is not illegal. Of course a prompt and immediate lodging of FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity of any possible concoction of a false version. The delay in lodging FIR results embellishment which is a creature of an afterthought. But delay itself is not enough to reject the prosecution case unless there are clear indications of fabrication. 16. In the present case the accused has no animosity with the informant or other witnesses. There is no even a suggestion that because of any ill relation or for any other reason a false case was cooked up against the accused. But delay itself is not enough to reject the prosecution case unless there are clear indications of fabrication. 16. In the present case the accused has no animosity with the informant or other witnesses. There is no even a suggestion that because of any ill relation or for any other reason a false case was cooked up against the accused. While there is no such circumstances, the delay of few hours in registering the case is of no consequence at all. The accused was arrested at the time of seizure. He was kept in custody of the police. But neither in his examination under Section 313 of Cr.P.C. nor during cross-examination of the prosecution witnesses any allegation made by the accused that he was not detained at the time of alleged seizure and was not kept in the custody of police. Under such facts and circumstances, I find no merit in the argument advanced by learned counsel, Mr. Sarkar that the delay in registering the case has got a serious impact on the authenticity of the prosecution case. 17. Regarding search warrant, it is an admitted position that PW4 did not obtain any search warrant as required under Section 94 of Cr.P.C. in the FIR PW4 stated that if immediate steps were not taken at that moment, the accused will try to conceal the vulgar/obscene cassettes and, therefore, he immediately searched the shop, recovered 13 numbers of obscene cassettes and seized the same. 18. Offence under Section 292 of IPC is a cognizable offence. No doubt PW4 being a ASI of police was not entitled to investigate the case. But as a police officer of the rank of ASI, he was not barred in making a search or seizure in connection with a cognizable offence. Section 94 of Cr.P.C. prescribes certain procedural aspects in respect of search for recovery of any suspected or forged articles, which includes obscene cassette. Simply because a search warrant was not obtained from the Magistrate, the search and seizure made by PW4 cannot be termed as illegal and unworthy of any criminal prosecution. I find no force in the argument advanced by Mr. Sarkar on this score. 19. In view of the discussion made above, I find no merit in the revisional application. In respect of punishment as I find it was the first offence of the accused. Learned trial Judge awarded maximum punishment. I find no force in the argument advanced by Mr. Sarkar on this score. 19. In view of the discussion made above, I find no merit in the revisional application. In respect of punishment as I find it was the first offence of the accused. Learned trial Judge awarded maximum punishment. The appellate Court upheld the same. Considering the fact that it was the first offence of the accused and that the accused suffered for last six years pain and agony of the criminal case, I think imprisonment for one year and a fine of Rs. 500/- will meet the ends of justice. Accordingly, the sentence is reduced. The accused petitioner is to suffer R.I. for one year and to pay a fine of Rs. 500/-, in default of payment of fine to suffer S.I. for 15 days. 20. The revisional application accordingly stands disposed of. 21. Send back the lower court record along with a copy of this judgment.