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2016 DIGILAW 1141 (HP)

Lekh Raj v. State of Himachal Pradesh

2016-06-23

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of the present revision, the petitioners have challenged the judgment passed by the Court of learned Sessions Judge, Shimla, in Criminal Appeal No. 59-S/10 of 2008, whereby the judgment of conviction and sentence as recorded by learned Judicial Magistrate Ist Class, Theog, dated 23.09.2008 in case No. 25-3 of 2006, has been partly modified. 2. The case of the prosecution was that on 05.11.2005, police officials HC Bhom Prakash, constable Jagat, constable Rakesh and constable Bittu, proceeded to Rahighat-Dhamandri in connection with patrolling as well as Naka duty. At about 12.30 A.M., they reached 3 K.M. ahead of Rahighat a vehicle Tata Spacio bearing registration No. 01A-3604 was intercepted. In the said vehicle, two persons were travelling. Driver disclosed his name Lekh Raj and other person disclosed his name Jitender. From the said vehicle 55 boxes of country liquor Marka Saroor were recovered being transported without any valid permit. Rukka Ext. PW4/A was sent to Police Station on the basis of which FIR Ext. PW4/B was registered against accused persons. 55 boxes of country liquor were taken into possession and one bottle from five foxes each was withdrawn as sample and thereafter sample and bulk were sealed with seal impression ‘O’. The vehicle alongwith its documents were also taken into possession in presence of the witnesses. Sample of the seal was taken on white cloth Ext. PW4/D. Sample was sent to the CTL Kandaghat for chemical analysis and report of Chemical Examiner was obtained, which is Ext. PZ. After completion of the investigation, challan was presented under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of H.P. The accused were charged for offence under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of H.P., to which they pleaded not guilty and claimed trial. 3. The learned trial Court on the basis of material produced on record by the prosecution came to the conclusion that the prosecution had proved its case against the accused persons and accordingly, it sentenced the accused to undergo rigorous imprisonment for six months each under Section 61(1)(a) of Punjab Excise Act, as applicable to the State of H.P. and to pay a fine of Rs.3000/- each. In the event of failure to pay the fine, the convicts were directed to further suffer simple imprisonment for one month each. 4. In the event of failure to pay the fine, the convicts were directed to further suffer simple imprisonment for one month each. 4. Feeling aggrieved by the judgment of learned trial Court, the accused challenged the same by way of appeal. The learned Appellate Court modified the sentence and directed the accused persons to suffer rigorous imprisonment for a period of 1½ months instead of six months rigorous imprisonment and besides this, the rest of the sentence passed by the learned trial Court was not disturbed. The sentence was modified by the learned Appellate Court after holding that the learned trial Court had wrongly convicted the accused for being in conscious and joint possession of 660 bottles of country liquor instead of five bottles of country liquor because the prosecution had only been able to prove that both the accused were in conscious and joint possession of 5 bottles of country liquor, which were being transported without any valid permit. 5. Feeling aggrieved by the said judgments, the accused have filed the present revision petition. 6. I have heard learned counsel for the parties and have also gone through the records of the case. 7. Learned counsel for the petitioners has submitted that the judgments of conviction passed by the learned Courts below were perverse and were not sustainable in law. According to him, the prosecution had not been able to prove beyond reasonable doubt that the accused were transporting country liquor as alleged or had committed an offence punishable under the provisions of Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of H.P. According to the learned counsel, the judgments of conviction passed by the learned Courts below were not sustainable in law on two counts i.e. (a) there was no proper identification of case property and (b) the prosecution had not produced on record the road certificate. 8. It is on these counts that the judgments passed by the learned Courts below have been challenged in the present revision petition. No other point is urged. 9. This Court will test both these contentions of the petitioners independently. 10. In order to substantiate his first contention that the case property was not properly identified, the learned counsel for the petitioners has drawn attention of this Court to the statement of PW-1 Rakesh Kumar. No other point is urged. 9. This Court will test both these contentions of the petitioners independently. 10. In order to substantiate his first contention that the case property was not properly identified, the learned counsel for the petitioners has drawn attention of this Court to the statement of PW-1 Rakesh Kumar. According to him, a perusal of the cross-examination of PW-1 Rakesh Kumar demonstrates that he has admitted in his cross-examination that the case property which was shown to him was neither having any seal mark nor any stamp on it. He has further submitted that the said witness has also stated in his cross-examination that on the case property there were two numbers 153/05 and 154/05. According to the learned counsel, this infirmity that the case property was not properly identified and there were two numbers on the case property in fact vitiated the entire trial. Therefore, according to him, the judgments of conviction passed by the learned Courts below are liable to be set aside on these counts alone. 11. In order to substantiate his second contention that the prosecution has not produced on record the road certificate. He has relied on the testimony of PW-2 Constable Narender Kumar and PW-3 MHC Man Dev. PW-2 has deposed that on 08.11.2005 MHC Police Station vide R.C. No. 96/05 had handed over to him 5 bottles Marka Deshi Saroor which were sealed with seal ‘O’, which were deposited by him on the same day at Kandaghat and on return the receipt was duly handed over by him to MHC Thana. In his cross-examination, he has deposed that he had deposited the road certificate with MHC Thana. PW-3 MHC Man Dev has stated in his cross-examination that the road certificate was given to him in the evening. He has further deposed that on the day when he was recording his statement he had not seen the road certificate which remained in the Thana record. On the strength of testimonies PW-2 and PW-3, learned counsel for the petitioner submitted that as no road certificate has been produced by the prosecution on record, accordingly, on this account also, the trial stands vitiated and the judgments of conviction passed by both the learned Courts below are liable to be set aside. 12. On the strength of testimonies PW-2 and PW-3, learned counsel for the petitioner submitted that as no road certificate has been produced by the prosecution on record, accordingly, on this account also, the trial stands vitiated and the judgments of conviction passed by both the learned Courts below are liable to be set aside. 12. In this regard, learned counsel for the petitioners has placed reliance on the judgments passed by this Court in Deep Bahadur Vs. State of H.P. & Connecter Matter, 2015(3) Him L.R. (DB) 1398 and in Roshan Lal Vs. State of Himachal Pradesh, Latest HLJ 2015 (HP) 1177. 13. Mr. V.S. Chauhan, learned Additional Advocate General on the other hand has argued that neither there is any perversity with the judgments of conviction passed by the Courts below nor the said judgments can be said to be not sustainable in law. According to him, findings of conviction returned by the learned trial Court and upheld with modification by the learned Appellate Court were borne out from the material placed on record by the prosecution. According to him, it stood established beyond reasonable doubt that the accused had committed offence punishable under Section 61(1)(a) of the Punjab Excise Act, as applicable to the State of H.P. He further argued that both the challenges which had been put forth in the present petition against the judgments of conviction passed by the learned Courts below by the petitioners were without any merit. Thus, Mr. Chauhan argued that the present petition deserves to be dismissed and the judgments of conviction and sentence passed by the learned trial Court as modified by the learned Appellate Court requires no interference. 14. In my considered view, the argument of the learned counsel for the petitioners that the case property has not been duly identified deserves rejection. PW-1 in his cross-examination has mentioned as under:- “Theek Hai Ki AAj Mujhe Jo Court Mai Case Property Dikhai Hai, Usme Na Hi Koi Seal Hai Na Hi Mohar Hai, Khud Kaha Pation Mai Band Thi, Jo Aaj Adalat Mai Aae Thi. Jis Mai Se Panch Patian Khuli Hai, Jisme Se Aaj Botlen Nikali Gai Thi. Yeh Theek Hai Ki Is Case Property Mai 153/05 Va 154/05 Do Number Hai. Khud Kaha 154/05 Madh No. Hai Jo Thane Mai Jama Bare Tha 153/05 Thane Me Mukadma No. Hai.” 15. Jis Mai Se Panch Patian Khuli Hai, Jisme Se Aaj Botlen Nikali Gai Thi. Yeh Theek Hai Ki Is Case Property Mai 153/05 Va 154/05 Do Number Hai. Khud Kaha 154/05 Madh No. Hai Jo Thane Mai Jama Bare Tha 153/05 Thane Me Mukadma No. Hai.” 15. Further, PW-4 H.C. Om Prakash in his cross-examination has deposed as under:- “Yeh Theek Hai Ki Dibbon Per/Case Property Per Do No. Lage Hai, 153/05 Va 154 Khud Kaha Kewal FIR No. Va Madh No. Lage Hai. Madh No. Ki entery register No. 19 Mai Hoti Hai. Vah Register Thane Mai Hai.” 16. It is apparently clear and evident from the testimony of PW-1 that the case property was shown to him in the Court and he had categorically stated that the case property which had been brought was sealed in boxes. He has also stated that the case property which was sealed in the boxes was the same which had been brought in the Court today, out of which 5 bottles were opened. Thus, in this view of the matter, the contention of the learned counsel for the petitioners that the case property has not been identified is incorrect and is rejected. Similarly, the contention of the learned counsel for the petitioners that the case property was bearing two numbers which was not possible has also been duly clarified through the testimony of PW-1 and PW-4. It is apparently clear that the case FIR No. is 153/05 which is written on the boxes and No. 154/05 is ‘Madh No.’ which pertains to the depositing of case property in the Police Station. Therefore, in this view of the matter, it cannot be said that the case property has not been duly identified. 17. Coming to the second contention of the petitioner with regard to the fact that the prosecution has not produced road certificate and that non-production of the same vitiates the trial, is also in my considered view not sustainable. In order to substantiate this submission, reliance was placed on the testimony of PW-2 and PW-3. These two witnesses no where said that the said certificate was never prepared. On the contrary, it is submitted that the road certificate was submitted by PW-2 with PW-3 and the factum of road certificate submitted by PW-2 to PW-3 had been admitted by PW-3. These two witnesses no where said that the said certificate was never prepared. On the contrary, it is submitted that the road certificate was submitted by PW-2 with PW-3 and the factum of road certificate submitted by PW-2 to PW-3 had been admitted by PW-3. Further, PW-3 had also clearly stated that the road certificate was available in Thana record and the contention of PW-3 to this effect that the road certificate was available in the Thana record was not impinged by the defence. Even otherwise, road certificate is only a corroborative piece of evidence and by no stretch of imagination, it can be said that non-production of the same vitiates the entire trial. This is more so in view of the fact that it is not the case of the petitioners that the case property which was recovered from their possession was not the same which was either deposited with Malkhana or which was sent for analysis to CTL, Kandaghat. 18. Further, the judgments relied upon by the learned counsel for the petitioner also do not assist the cause of the petitioner. In Deep Bahadur Vs. State of H.P. & Connecter Matter, 2015(3) Him L.R. (DB) 1398, issue was pertaining to Narcotic Drugs and Psychotropic Substances Act. In the said case, this Court held that as the case property therein was neither deposited nor taken out from Malkhana as per the procedure duly established by law, it casts serious doubt whether it was same contraband/case property, which was seized from accused and sent for chemical analysis or not. Similarly, in Roshan Lal Vs. State of Himachal Pradesh, Latest HLJ 2015 (HP) 1177, this Court has held that entry was required to be made when the case property was taken out from Malkhana, for its production in the Court and entry was also required to be made when the case property was returned to be deposited in the Malkhana after its production in the Court. It further held that in that case there was no DDR when the case property was taken out from the Malkhana. This Court further held that every time, the case property is deposited and taken out, entries are required to be made in the Malkhana Register which is prescribed in Form-19 of Punjab Police Rules. 19. This is not the issue involved in the present case. This Court further held that every time, the case property is deposited and taken out, entries are required to be made in the Malkhana Register which is prescribed in Form-19 of Punjab Police Rules. 19. This is not the issue involved in the present case. Therefore, in my considered view, the judgments cited by the learned counsel for the petitioners are of no assistance to the petitioner. 20. The learned counsel for the petitioner has also not been able to point out any material particular which has been over-looked by the learned Courts below. 21. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. The High Court in revision cannot in absence of error on a point of law, re-appreciate evidence and reverse a finding of law. 22. It has been further held by the Hon’ble Supreme Court that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals. 23. The Hon’ble Supreme Court in Ram Briksh Singh and others Vs. Ambika Yadav and another, (2004) 7 SCC 665 , has held that Revisional Court can interfere with the findings of lower court where the Courts below have overlooked material evidence. 24. Thus it can be safely inferred that this Court has to exercise its revisional powers sparingly. Though, this Court is not required to act as a Court of appeal, however, at the same time it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. However, I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case especially when the learned Appellate Court has already reduced the quantum of sentence. 25. In view of the above discussion, I am of the considered view that there is neither any infirmity nor any perversity with the judgments passed by the Courts below and there is no merit in the present petition and the same is accordingly dismissed.