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2018 DIGILAW 569 (HP)

Partap Chand v. State Of Himachal Pradesh

2018-04-07

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —This present revision petition under Section 397 of the Code of Criminal Procedure is directed against the judgment passed by learned Sessions Judge, Hamirpur, H. P. on 19.01.2011, in Criminal Appeal No.56 of 2010, whereby he affirmed the judgment of conviction and sentence passed by learned Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P. on 25.11.2010/06.12.2010, in Criminal Case No. 16-III-2008, whereby the petitioners were convicted and sentenced to undergo two years rigorous imprisonment each and fine of Rs.10, 000/- each under Section 61(1) (a) of the Punjab Excise Act (as applicable to the State of H.P.) (for short ''Act'') , was imposed. In default of payment of fine, the petitioners were further directed to undergo simple imprisonment for six months each. 2. As per prosecution story, on 16.02.2008, Inspector/SHO, Police Station, Barsar along with Sub Divisional Police Officer and other police officials had gone in the official vehicle No. HP-22-4622 towards Garli, Darkoti and Harsour side for patrolling vide rapat Mark-A. During night at about 2.30 a.m., when they were present near Harsour bridge, one jeep bearing registration No. HP-22-4716 came from Shah Talai side in a fast speed. The jeep was signaled to stop, but the driver of the jeep did not stop it and fled towards Barsar side. The police party chased the jeep and managed to stop it after a distance of around km. On inquiry, the driver of the jeep disclosed his name as Partap Chand son of Ram Lal while other occupant disclosed his name as Vipan Kumar son of Shri Badri Parshad. On checking of the jeep, it was found containing 80 cartons of country liquor Una No.1 having 12 bottles each of 750 ml., 50 cartons of x xX Rum (for sale in H.P. only) having 12 bottles each of 750 ml., 7 cartons of beer having 12 bottles each of 650 ml. and 7 cartons of Officer Choice having 12 bottles each of 750 ml. The petitioners could not produce any permit/licence for possessing/transporting the liquor. The police could not associate any independent witness as spot was a lonely place and no body was available there during night time. Three bottles of each brand of liquor/beer out of the recovered cartons were separated and sealed in a parcel with seal ''K'' for the purpose of chemical examination. The police could not associate any independent witness as spot was a lonely place and no body was available there during night time. Three bottles of each brand of liquor/beer out of the recovered cartons were separated and sealed in a parcel with seal ''K'' for the purpose of chemical examination. Seal impressions were taken on a piece of cloth and the seal after its use was handed over to ASI Shankar Singh. The remaining cartons of liquor and beer along with sample bottles were taken in possession by the police vide memo Ex.PW4/A. The vehicle along with its documents and keys was also taken into possession vide memo Ex.PW4/B. 3. Rukka was prepared and sent through constable Surinder Kumar No. 225 to the Police Station, Barsar, where FIR came to be registered and endorsement to that effect was made on the rukka. Site plan Ex.PW6/E was prepared by the Investigating Officer. The petitioners were arrested and information regarding their arrest was given to their relatives and memo to this effect was also prepared. Photographs Ex.P1 to P3 were got clicked and the case property was deposited with MHC, Police Station, Barsar, District Hamirpur. Later on, the sample bottles were sent to CTL, Kandaghat from where the reports Ex.PA and Ex.PB were received to the effect that the samples were containing alcoholic strength and were fit for human consumption. The statements of the witnesses were recorded under Section 161 Cr.P.C. 4. On completion of the investigation, challan was prepared against the petitioners under Section 61(1) (a) of the Act and it was presented in the Court of learned Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P. on 05.08.2008. 5. Copies of challan were supplied to the petitioners on 11.09.2008. Charges under Section 61(1) (a) of the Act were framed against the petitioners to which they pleaded not guilty and claimed trial. 6. In order to prove its case, the prosecution examined eight witnesses in all. Thereafter, the statements of the petitioners under Section 313 Cr.P.C. were recorded wherein they denied all the allegations levelled against them, however, they did not lead any evidence in defence. 7. The learned trial Magistrate, after hearing the learned Assistant Public Prosecutor for the State and learned counsel for the petitioners found them guilty of having committed the offence punishable under Section 61(1) (a) of the Act and convicted and sentenced them as aforesaid. 8. 7. The learned trial Magistrate, after hearing the learned Assistant Public Prosecutor for the State and learned counsel for the petitioners found them guilty of having committed the offence punishable under Section 61(1) (a) of the Act and convicted and sentenced them as aforesaid. 8. Aggrieved by the judgment of conviction and sentence passed by the learned trial Magistrate, the petitioners preferred an appeal which was dismissed by the learned Sessions Judge on 19.01.2011. 9. Two-Fold submissions have been made by learned counsel for the petitioners; firstly, that the prosecution has not been able to prove its case beyond reasonable doubt and secondly even if it is held that the prosecution has been able to prove its case beyond shadow of doubt, even then, what has been proved on record is the quantity of liquor that had been sent for analysis and not the entire quantity of liquor as recovered. 10. Admittedly, the entire prosecution case rests upon the testimonies of PW-4 constable Karam Chand, PW-5 ASI Shankar Singh, PW-6 Inspector Bakshi Ram, PW-7 constable Surinder Kumar and PW-8 SI Sher Singh. All the prosecution witnesses have supported the case of the prosecution in its entirety. Moreover, it is proved on record that it was a case of chance recovery and, therefore, no independent witness has been associated by the prosecution. 11. The prosecution has led clear, cogent and convincing evidence to prove the alleged recovery and such findings are exceptional as it is more than settled that the conviction can be based upon the testimonies of official witnesses alone, more particularly if their statements inspire confidence. 12. However, the second submission of the learned counsel for the petitioners seems to be of substance as even after having approved the recovery, the fact still remains as to whether the prosecution has been able to prove the entire recovery of 80 cartons of country liquor Una No.1 having 12 bottles each of 750 ml., 50 cartons of x xX Rum (for sale in H.P. only) having 12 bottles each of 750 ml., 7 cartons of beer having 12 bottles of 650 ml. and 7 cartons of Officer Choice having 12 bottles each of 750 ml. and 7 cartons of Officer Choice having 12 bottles each of 750 ml. Why I observe so is because even as per the admitted case of the prosecution, out of total 144 cartons of different brands, admittedly, only three bottles of each brand of recovered liquor were sent for analysis and thus what stands proved on record is the recovery of (i) three bottles of 750 ml. each of Una No.1 liquor (ii) three bottles of 750 ml. each of x xX Rum, (iii) three bottles of 650 ml. each of beer and three bottles of 750 ml. of Officer Choice Whisky. Therefore, assuming that the contraband was actually recovered by the prosecution, it did not take sample from all the bottles, but only took samples from three bottles of each brand. Therefore, there is nothing on record to actually prove that the remaining bottles in the cartons actually contained liquor. Three bottles of each brand that were sent for sampling cannot be said to be representative in character. 13. In similar circumstances, this Court in Mahajan versus State of Himachal Pradesh , (2003) CriLJ 1346; State of H. P. versus Ramesh Chand, 2007 2 LatestHLJ 1017; State of H. P. versus Jagjit Singh, 2008 LatestHLJ 919, Dharam Pal and another versus State of Himachal Pradesh , (2009) 2 ShimLC 208 ; and State of Himachal Pradesh versus Kuldeep Singh & others, 2010 2 HimLR 825 , Surender Singh versus State of Himachal Pradesh, 2013 LatestHLJ 865 (HP) , Criminal Revision No. 37 of 2007, titled Jagat Ram versus State of Himachal Pradesh, decided on 08.05.2013, Criminal Revision No. 52 of 2009, titled Sanjeev Kumar and others versus State of H.P., decided on 25.10.2016 and Criminal Revision No.4 of 2010, titled Subhash versus State of Himachal Pradesh, decided on 20.03.2018, has acquitted the accused, as the prosecution could not prove, beyond reasonable doubt, as to what actually was there in the remaining boxes. 14. Thus, what at best can be said to have been proved on record is the recovery of (i) three bottles of 750 ml. each of Una No.1 liquor (ii) three bottles of 750 ml. each of x xX Rum, (iii) three bottles of 650 ml. each of beer and three bottles of 750 ml. 14. Thus, what at best can be said to have been proved on record is the recovery of (i) three bottles of 750 ml. each of Una No.1 liquor (ii) three bottles of 750 ml. each of x xX Rum, (iii) three bottles of 650 ml. each of beer and three bottles of 750 ml. of Officer Choice Whisky from the petitioners and such recovery is punishable under the Act and findings to this effect rendered by the learned Courts below are unexceptional. 15. However, learned counsel for the petitioners would vehemently argue that taking into account the fact that the petitioners are the first offenders and, therefore, may be ordered to be released on probation. 16. Having regard to the overall facts and circumstances of the case, this contention to my mind has considerable force in case favourable report is given by the Probation Officer. Afterall, it cannot be disputed that object underlying the provisions of Probation of Offenders Act as also those contained in Sections 360 and 361 Cr.P.C. clearly provide for first offenders being not sent to jail for commission of less serious offence, on account of grave risk of their attitude to life to which they are likely to be exposed as a result their association with hardened and habitual criminal inmates in jail, their stay in jail in all probabilities would attract them towards life of crime instead of reforming them. This obviously would put more harm not only to the offenders but to the society as a whole. 17. Section 4 of the Probation of Offenders Act empowers the Court to release the convict on entering into a bond, with or without sureties, on probation when he is found guilty of committing any offences not punishable with death or imprisonment for life. Relevant portion of Section 4 is reproduced as under:- "4. 17. Section 4 of the Probation of Offenders Act empowers the Court to release the convict on entering into a bond, with or without sureties, on probation when he is found guilty of committing any offences not punishable with death or imprisonment for life. Relevant portion of Section 4 is reproduced as under:- "4. Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behavior; Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond." 18. For exercising the power which is discretionary, the Court has to consider various circumstances of the case, like the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take realistic view of the gravity of the offence, the impact which the offence had on the victim, the benefit available to the accused under this provision is subject to the limitation embodied in the provision as is evident from the use of the word "may" which clearly indicates that the discretion vested with the Courts whether to release the offender in exercise of the power under Sections 3 or 4 of the Act having regard to the nature of the offence and character of the offender and over all circumstances of the case. The powers under Section 4 of the Act vest with the Court when any person is found guilty of the offence committed not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Courts come to a conclusion by considering the circumstances of the case including the nature of the offence and the character of the offender, benefit should be given to the accused. Obviously, this power is available and can be exercised by the Court even at the appellate stage. 19. Having regard to the rival contentions of the learned counsel for the parties, and having gone through the circumstances emanating from the record and after in depth consideration of the entire matter, I find no legal impediment for considering the case of the petitioner for grant of probation, particularly, in light of the fact that the incident in this case (i) pertains to the year 2008; (ii) the petitioners have already faced the pangs and suffered agony of protracted trial and appeal/revision for the last nearly 9 years. 20. Even the modern trend of penology also leads to the reformation of the offender so as to make him useful citizen of the society. Therefore, no useful purpose is otherwise going to be achieved by again sending the petitioners to jail. 21. Even, the prosecution has failed to prove the entire contraband found in 80 cartons of country liquor Una No.1 having 12 bottles each of 750 ml., 50 cartons of x xX Rum (for sale in H.P.) having 12 bottles each of 750 ml., 7 cartons of beer having 12 bottles of 650 ml. and 7 cartons of Officer Choice having 12 bottles each of 750 ml. However, nonetheless, the prosecution has been able to prove recovery of three bottles of 750 ml. each of Una No.1 liquor (ii) three bottles of 750 ml. each of x xX Rum, (iii) three bottles of 650 ml. each of beer and (iv) three bottles of 750 ml. of Officer Choice Whisky, which is well beyond the legal permissible limit that one can carry. 22. Accordingly, let the Probation Officer of the area concerned where the petitioners permanently reside place before this Court their reports qua their antecedents on or before next date of hearing.