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2020 DIGILAW 239 (MP)

Rajendra Pal v. State Of Madhya Pradesh

2020-02-13

PRAKASH SHRIVASTAVA

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JUDGMENT 1. By this revision petition under Section 397 read with Section 401 of the Cr.P.C. petitioner has challenged the concurrent orders of the two Courts below. The petitioner has been convicted by the order of the trial Court dated 26/03/2018 for offence under Section 34(2) of the M.P. Excise Act, 1915 and sentenced to 1 year RI with fine of Rs.30,000/- and further convicted under Section 36 of the Act and sentenced to 6 months RI and fine of Rs.1,000/- and also for offence under Section 36(A) of the Act and sentenced to 1 year RI with fine of Rs.1,000/-. The default sentence of 4-4 months simple imprisonment has been imposed. The learned Additional Sessions Judge by the judgment dated 29/07/2019 by dismissing the appeal has affirmed the judgment of the trial Court. 2. The prosecution case is that on 24/11/2008 at 14:15 oclock, Inspector Gopal Singh of Police Inspector City Kotwali, Mandsaur had received the information from the informant that the petitioner in his Tadka restaurant which is infront of the police line has opened a bar and is managing and controlling the bar through his servants and running the liquor bar. A Panchnama was prepared and information was sent to the CSP and thereafter the team comprising of PSIGeeta, R-Durgashankar, R-Vikrant, R-Vijay Rathore with vediographer had reached the spot. The restaurant was found closed from the front and from the backside it was found that the door was open. The petitioner was sitting in the counter and the liquor was being served through his servants to the customers sitting in the restaurant. It was found that in the guise of the restaurant, the petitioner was running a liquor bar. On asking infront of the witnesses, the petitioner could not produce the liquor license and on searching the counter and store room, the liquor was seized. The sale proceeds bill book etc. were seized and the petitioner along with Dhansingh, Ramesh, Bhupendra Singh, Vinod and other persons were arrested for running the liquor bar and serving the liquor for offence under Section 34(2), 36 and 36(A) of the M.P. Excise Act. Against the persons found to be consuming liquor in the bar, offence under Section 36(B) was registered and after investigation the challan was filed. Against the persons found to be consuming liquor in the bar, offence under Section 36(B) was registered and after investigation the challan was filed. Petitioner had abjured the guilt, therefore, the trial had taken place and the petitioner has been convicted and sentenced in the manner indicated above. The other co-accused persons have been acquitted. 3. Learned counsel appearing for the petitioner submits that all the liquor bottles were not sent to the FSL and only 8 bottles were sent, therefore, there is no proof that the other bottles were containing the liquor. He further submits that there is no evidence that the petitioner is the owner or Manager of the restaurant/bar and that he has already completed more than 6 months in custody. As against this, learned counsel for the respondent has opposed the revision petition. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that both the Courts below have already elaborately examined oral as well as documentary evidence on record. During the raid, 160 bottles including the bottles of English liquor imperial blue, bagpiper, royal stage, McDowell, bitejick ect. and 156 bottles of beer were seized and video recording of the entire incident was done by the Inspector Jeevan Rathore. PW/12 Gopal Singh has disclosed the details of the incident and proved the arrest memo and the documents relating to registration of the offence and relevant Rojnamcha. PW/13 Kushalsingh who had carried out the further investigation had proved the spot map, CD of the incident, Tahrir for examination of the seized liquor Exhibit P/9 and seeking information about the ownership of the premises from the CMO Exhibit P/42. He has also disclosed that the sealed bottles were sent for examination. PW/11 Jeevan Rathore has given the details of the sequence of event before the raid and also the details of seizure of the liquor at the time of the raid and had also stated that the videography of the entire proceedings was done by him and had proved the CD as article P/1. PW/10 Vikrant, the Inspector in the concerned police station who had accompanied the raid party has also disclosed the details of seizure of the liquor and serving of the liquor in the restaurant. He is seizure witness of the CD. PW/2 Ramashankar Shukla has supported the statements of the above witnesses. PW/10 Vikrant, the Inspector in the concerned police station who had accompanied the raid party has also disclosed the details of seizure of the liquor and serving of the liquor in the restaurant. He is seizure witness of the CD. PW/2 Ramashankar Shukla has supported the statements of the above witnesses. PW/4 Vivek Mishra who had examined the samples of the seized liquor and prepared the report Exhibit P/11 has disclosed that in all the samples, foreign liquor and beer was found. PW/5 Mangesh Navle, Assistant Grade-III, In-charge of the mutation branch of the Municipal Corporation had stated that the house No.93/1 was registered in the name of the petitioner. On the basis of his statement, the Courts below have found that Tadka restaurant was running in the premises belonging to the petitioner. From the aforesaid statement of the witnesses, it was clearly established that the petitioner was possessing and selling the liquor more than specified quantity of 50 bulk liter. Hence, had committed the offence under Section 34(2) of the Excise Act. So far as the submission of learned counsel for the petitioner based upon the Single Bench judgment of this Court in the matter of Sunil Tiwari Vs. State of M.P. reported in 2009 1 MPWN 60 is concerned, the petitioner is not entitled to the benefit of the said judgment in view of the earlier judgment of the Supreme Court in the matter of Vijendra Jeet Ayoghya Prasad Goyal Vs. State Bank of Bombay reported in AIR 1953 SC 247 wherein it has been held that it is not wholly necessary to send all the bottles recovered by the presence of Panchas and which contain the same stuff for purpose of analysis. In the case of Jagmohan and another Vs. State of M.P. reported in 2014(4) MPHT 165 , it has been held that Excise Officer by applying physical test can give opinion about seized liquor. Thus, I do not find any merit in the revision petition, which is accordingly dismissed.