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2015 DIGILAW 355 (RAJ)

Jaswant Singh v. State of Rajasthan

2015-02-09

V.K.MATHUR

body2015
JUDGMENT 1. - Instant revision petition has been preferred on behalf of petitioner, namely Jaswant Singh under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 to assail the judgment of conviction and order of sentence dated 03.07.2013 rendered by the Judicial Magistrate, Dudu, District Jaipur, (hereinafter referred to as 'trial court') who found the petitioner guilty for commission of offence punishable under Section 19/54 read with Section 14 of the Rajasthan Excise Act, 1950 (hereinafter referred to 'the Act') and sentenced him to undergo three years simple imprisonment with a fine of Rs. 5,000/-, and in default thereof, to further undergo simple imprisonment for one month. 2. The petitioner being aggrieved against the judgment of conviction and order of sentence filed an appeal before the Additional District and Sessions Judge, Camp Court Dudu, District Jaipur which was dismissed on 27.11.2013 upholding the conviction and the sentence of three years simple imprisonment awarded by the trial Court but regarding fine imposed, the matter was remitted to the trial court. 3. Hence, this revision petition has been filed by the petitioner before this Court. 4. The brief facts of the case are that on 04.08.2012 Rambabu Tripathi (PW-6), SI, Excise Prevention Squad, Station Dudu, Jaipur, received a secret information that the illegal liquor is being brought in a Tata truck-3118 TC No. RJ-19-GB-7647. He alongwith raiding party consisting of Shiv Prasad Prajapati (PW-1) constable, Pokhar Ram (PW-5) constable, Kuldeep Singh (PW-3) constable, Sugan Singh (PW-2) constable and Kisan Singh (PW-4) proceeded towards the National Highway- 8 Mokhampura crossing and held "nakabandi" at about 10.30 AM. A truck Tata-3118 No. RJ-19-GB-7647 coming at high speed was singled to stop at the roadside. The vehicle was searched and 1700 cartons of liquor BESTO whisky for sale in Arunachal Pradesh were recovered. The driver disclosed his name as Jaswant Singh S/o Dalaram who was arrested. During search each carton contained 12 bottles of BESTO whisky in all totalling 20400 BESTO whisky bottles for sale in Arunachal Pradesh only which were hidden inside and under fertilizer bags. 5. Since, all the 1700 cartons contained the same brand of liquor, two cartons containing 24 bottles were taken as sample. After affixing the seals on the contraband recovered, same was taken into possession as per recovery memo (Ex.P-1). 6. 5. Since, all the 1700 cartons contained the same brand of liquor, two cartons containing 24 bottles were taken as sample. After affixing the seals on the contraband recovered, same was taken into possession as per recovery memo (Ex.P-1). 6. After necessary proceedings FIR No. 07/12-13 (Ex.P-7) dated 04.08.2012 was registered at Excise Prevention Station Dudu, Jaipur Rural. 7. The trial Court charged the petitioner for commission of offence punishable under Section 19/54 read with 14 of the Rajasthan Excise Act, 1950. The petitioner pleaded not guilty and claimed trial. The prosecution examined 6 witnesses and 11 documents were exhibited. 8. The learned counsel for the petitioner submitted that the petitioner has been falsely implicated in this case. The petitioner had no knowledge of illegal liquor found in the truck and no independent witness was produced. The prosecution has failed to prove its case beyond reasonable doubt and submitted that the petitioner be acquitted of the charges levelled against him. Alternatively, it was submitted by the learned counsel that the petitioner who is in custody for 2-1/2 years be sentenced to the period already undergone and the order of the appellate court regarding remitting the matter for reconsideration of fine be set aside. 9. In support of the contention regarding reduction of sentence, the learned counsel relied on the judgments reported in the case of Nhaliyam Makkil Raveendran v. State of Kerala 2008(2) WLC (SC) Criminal 211; Jasvindra v. State of Rajasthan, 2011(3) RCC (Raj.) 814 ; Nila Singh & Anr. v. State of Rajasthan, 2003(3) RCC 1640 ; Sasikumar & Anr. v. State of Kerala, 2013(1) WLC (SC) Criminal 494 ; Rajamani v. State of Kerala, 2013 RCC (SC) 375. 10. The learned Public Prosecutor has supported the judgments rendered by two Courts below and submitted that the petitioner has been rightly convicted and the revision petition deserves to be dismissed. 11. I have heard the learned counsel for the parties and perused the impugned judgment and record of the trial court. 12. The prosecution witness Rambabu Tripathi (PW-6), who was Sub-Inspector, Excise Prevention Squad, Station Dudu has proved various facets of investigation regarding receipt of secret information, holding of "nakabandi", arrest of petitioner Jaswant Singh from the spot, search of vehicle, recovery of liquor, seizure of the same, drawing of samples and deposit of contraband in the malkhana, sending the sample to FSL and the FSL report. 13. 13. The prosecution witnesses constable Shiv Prasad Prajapati (PW-1), constable Sugan Singh (PW-2), constable Kuldeep Singh (PW-3), constable Kisan Singh (PW-4), constable Pokhar Ram (PW-5) have corroborated the testimony of PW-6 Sub-Inspector Rambabu Tripathi. 14. The prosecution witness Pokhar Ram (PW-5) has deposed regarding the deposit of contraband at the Forensic Science Laboratory which remained properly sealed in his possession. 15. Thus, the prosecution witnesses have proved the arrest of the petitioner Jaswant Singh from the spot and from the seized vehicle 1700 cartons containing 20400 liquor bottles were seized. The petitioner was not having valid permit or licence and was unauthorizedly carrying liquor meant for sale in the State of Arunachal Pradesh and thereby had contravened the provisions of the Rajasthan Excise Act. 16. The statements of the prosecution witnesses are trustworthy and there is no reason to disbelieve their testimony. Furthermore, minor discrepancies in the statements of witnesses are not sufficient to discard the testimony of official witnesses. The arguments raised by the learned counsel appearing for the petitioner has failed to cast doubt regarding search, seizure and recovery of liquor effected from the vehicle in possession of accused petitioner Jaswant Singh. Both the courts below have considered the material available on record, appreciated the evidence and arrived at a reasonable and well founded conclusion. There is no infirmity in the concurrent findings of the court below. 17. It has been held by Hon'ble Supreme Court in the case of Sasikumar & Anr. v. State of Kerala 2013(1) WLC (SC) Criminal 494 regarding minimum sentence of fine that a high amount may lead to discrimination against poor accused and, therefore, imposition of fine should be left to discretion of courts. It has been averred in the present case that the petitioner who was the driver was a poor man and would be unable to pay the minimum fine of Rs. 20,000/-. Therefore, in this view of the matter, in the facts and circumstances of the present case and in the interest of justice, the sentence of fine Rs. 5,000/- in default of which the petitioner would undergo sentence of one month simple imprisonment imposed by the trial court is just and proper. 18. Taking totality of circumstances, enumerated above, the conviction and sentence awarded to the petitioner Jaswant Singh by the trial court is upheld in view of recovery of huge quantity of liquor totalling 20,400 bottles. 5,000/- in default of which the petitioner would undergo sentence of one month simple imprisonment imposed by the trial court is just and proper. 18. Taking totality of circumstances, enumerated above, the conviction and sentence awarded to the petitioner Jaswant Singh by the trial court is upheld in view of recovery of huge quantity of liquor totalling 20,400 bottles. However, the order of the appellate court remitting the matter for redetermining the fine deserves to be set aside. 19. In the light of the above discussion, the appeal is dismissed and the conviction and sentence awarded to the petitioner by the trial court is upheld but the order of the appellate court remitting the case to the trial court for redetermining the fine is set aside. 20. Consequently, the appeal is partly allowed to the limited extent, as directed above.Appeal partly Allowed. *******