JUDGMENT : 1. Heard Mr. Anil Kumar, learned counsel appearing on behalf of the petitioners. 2. Heard Mr. Rajesh Kumar, learned counsel appearing on behalf of the opposite party-State. Arguments of the petitioners 3. The learned counsel for the petitioners submits that this criminal revision application has been filed against the judgment dated 18.08.2014 passed by the learned Principal Sessions Judge, Latehar in Criminal Appeal No. 19 of 2014, whereby the conviction and sentence passed by the learned trial court under Section 47(A) of Bihar Excise Act 1915 stands confirmed and the appeal has been only partly allowed. The petitioners have been convicted and sentenced to undergo simple imprisonment of two years and to pay a fine of Rs. 5000/- each for the offence under Section 47(A) of Excise Act and in default of payment of fine, the petitioners were further sentenced to undergo simple imprisonment for six months for the offence. 4. The appeal was filed against the judgment passed by the learned Chief Judicial Magistrate, Latehar in G.R. Case No. 438/2009 (Trial No. 596/2013) aising out of Latehar P.S. Case No. 110 of 2009, whereby the petitioners were convicted and sentenced to undergo simple imprisonment for six months for offences under Section 273 of IPC, simple imprisonment for six months for offence under Section 274 of IPC and were further sentenced to undergo simple imprisonment for two years and to pay a fine of Rs. 5000/- each for the offence under Section 47(A) of the Excise Act. 5. The learned counsel while assailing the impugned judgments passed by the learned courts below has submitted that the impugned judgments are perverse and are fit to be set aside in view of the fact that the learned courts below have not properly considered the evidence of the seizure list witnesses. He has referred to paras-11 and 12 of the trial court’s judgment which deal with the evidence of the seizure list witness P.W.-2 and he submitted that in cross-examination at para-3, this witness has clearly stated that he had signed on written paper and he does not know how to read, rather he can only make his signature and in para-4 he has stated that no liquor was seized before him. This witness has also stated that no any statement of his was recorded by the police and due to friendship with the accused, he could recognize the accused persons. This witness has also stated that no any statement of his was recorded by the police and due to friendship with the accused, he could recognize the accused persons. The learned counsel has thereafter referred to the evidence of P.W.-6 who is another seizure-list witness and in his cross-examination, he has stated that this witness has clearly stated that the police had taken his signature on the written report, but what was written he cannot say and he had clearly stated in his cross-examination that articles-in-question was not seized before him. The learned counsel submitted that considering the evidence of the seizure-list witnesses, it is clear that the prosecution has not been able to prove the seizure of the incriminating liquor and the materials beyond all reasonable doubts. The learned counsel further submitted that the liquor was not even produced before the learned court below as material exhibit. He further submitted that apart from the merits of the case, the period of custody of the petitioners may also be taken into consideration as the petitioners have remained in custody for a period from 01.08.2009 to 03.08.2009 immediately after filing of the FIR and thereafter for a period from 22.03.2014 to 10.11.2014 at the stage of revision as the petitioners had surrendered on 22.03.2014 and were directed to be released on bail by a Co-ordinate Bench of this Court vide order dated 10.11.2014 and thus the petitioners have remained in custody for a period more than seven and a half months. He submitted that the custody of the petitioners and the fact that the petitioners have faced the rigors of the criminal case for more than 11 years may also be taken into consideration and the sentence be modified. Arguments of the opposite party-State 6. Learned counsel appearing on behalf of the opposite party-State opposed the prayer of the petitioners on the merits of the case and submitted that there are consistent finding of the learned courts below, so far as the offence under Section 47(A) of the Excise Act is concerned. The learned counsel also submitted that for the first offence, the minimum punishment prescribed under the Excise Act is three months and for the second and the subsequent offence, the minimum punishment prescribed under the Excise Act for the offence involved in this case is six months. The learned counsel also submitted that for the first offence, the minimum punishment prescribed under the Excise Act is three months and for the second and the subsequent offence, the minimum punishment prescribed under the Excise Act for the offence involved in this case is six months. The learned counsel also submitted that in case, if this Court is inclined to modify the sentence, then the fine amount should be enhanced and the enhancement may not be for any amount less than Rs. 5000/- considering the facts and circumstances of this Case. Findings of this Court 7. The prosecution case was based on the written application given by the then Sub-inspector, Latehar P.S. (P.W.-1) and the case was registered as Latehar P.S. Case No. 110/2009 dated 31.07.2009 for offence under Sections 273 and 274/34 of Indian Penal Code and Section 47(A) of the Excise Act in which both the petitioners were made accused. As per the prosecution case, on 31.07.2009, a team of officers was constituted by the then officer-in-charge, Latehar and the team reached the Village-Bajkum and got secret information that at the residence of Umesh Bhuiyan (Petitioner No.-2), illegal country made liquor was being prepared. At that place, before two independent witnesses, namely, Ramsahay Oraon and Binod Bhuiyan i.e. P.Ws. 2 and 6 respectively in the morning at 5:00 O’clock, the residence of Umesh Bhuiyan was surrounded by the raiding team and both the petitioners tried to flee, but were caught and on interrogation, they disclosed their names. During course of search, one gallon containing 15 litres of country made liquor and another gallon containing 5 litres of country made liquor were recovered and at the same time, vessel was found which was used for preparing country made liquor and when the raiding team became ready to seize the vessel, it broke and jawa mahua which was present on clay pot also broke when it was being lifted. The further case of the prosecution was that with regard to preparation of country made liquor, the papers were demanded from the petitioners, but no such paper was produced and in presence of two independent witnesses, the raiding team prepared the seizure list of 15 litres and 5 litres of country made liquor on which the independent witnesses put their signatures and a copy of the same was supplied to both the accused and thereafter the accused were arrested. It was also alleged that one of the accused Birendra Oraon was arrested in connection with illegal mahua wine and another case was registered against him. On the basis of the aforesaid allegation, a formal FIR was drawn for offence under Sections 273 and 274/34 of Indian Penal Code and Section 47(A) of the Excise Act against the petitioners. After investigation, the charge-sheet dated 14.09.2009 was submitted against the petitioners under the aforesaid sections and cognizance of the offence was taken on 19.09.2009. The charges were framed against the petitioners on 01.11.2010 which was explained to the petitioners for offence under Sections 273 and 274/34 of Indian Penal Code and Section 47(A) of the Excise Act to which they pleaded not guilty and claimed to be tried and thereafter evidence on behalf of the prosecution was initiated. 8. After completion of the prosecution evidence, the statements of the petitioners were recorded under Section 313 of Code of Criminal Procedure on 08.03.2013 and they denied the allegations made against them and they claimed to be innocent. The petitioners were also given opportunity to lead evidence in their favour, but the learned defence counsel declined to adduce any evidence. 9. In the trial court, as many as 11 witnesses were examined. P.W.-1 is the informant of the case. P.W.-2 and P.W.-6 are the seizure list witnesses. P.W.-8 is the investigating officer of the case. The members of raiding team were also examined. 10. Apart from the oral evidences, the prosecution has also proved documentary evidences. Ext.-1 is the written application of P.W.-1. Ext.-1/1 is endorsement on the written report (FIR). Ext.-2 is the signature of the S.I. on the formal FIR. Ext.-3 is the signature of P.W.-1 on the seizure list. Ext.-3/1 is the signature of P.W.-2 on the seizure list. Ext.-3/2 is the signature of P.W.-6 on the seizure list. Ext.-4 is the requisition for examination of wine and Ext.-4/1 is the examination report of the Excise Inspector. 11. Ext.-2 is the signature of the S.I. on the formal FIR. Ext.-3 is the signature of P.W.-1 on the seizure list. Ext.-3/1 is the signature of P.W.-2 on the seizure list. Ext.-3/2 is the signature of P.W.-6 on the seizure list. Ext.-4 is the requisition for examination of wine and Ext.-4/1 is the examination report of the Excise Inspector. 11. Informant - This Court finds that P.W.-1 who is the informant of the case has fully supported the prosecution case and has exhibited his signature on the seizure list which has been marked as Ext.-3 and it has been recorded in the trial court’s judgment in Para-7 of his deposition that before two independent witnesses, the seizure list was prepared and he recognized both the petitioners as accused who were present in the Court. In para-10 of his cross-examination, he has stated that supplying the copy of seizure list to the accused has not been mentioned, but the copy of the same was delivered to them. Members of raiding party So far as P.W.-3, 4, 5, 7, 10 and 11 who are part of the raiding party are concerned, they have also fully supported the prosecution case and their deposition has been fully discussed in the judgement passed by the learned courts below. The P.Ws. 3, 4 and 5 have identified the petitioners in the court. Investigating officer So far as the investigating officer of the case is concerned, he has been examined as P.W.-8 who has stated that he got the charge of investigation on 31.07.2009 and he had taken the statement of the other witnesses including seizure list witnesses, all of whom had supported the occurrence and the petitioners were arrested on the spot alongwith the seized materials. He has also stated that the country made liquor was sent to Excise Inspector for examination and upon test, the power of seized wine has been shown as 72.1 u.p. The application for sending it to Excise Inspector has been marked as Ext.-4 and the examination report itself has been marked as Ext.-4/1. This witness has also fully supported the prosecution case. Seizure witnesses So far as seizure list witness P.W.-2 is concerned, he has stated that the seizure list bears his signature and the same has been marked as Ext.-3/1 and he identified the petitioners who were present. This witness has also fully supported the prosecution case. Seizure witnesses So far as seizure list witness P.W.-2 is concerned, he has stated that the seizure list bears his signature and the same has been marked as Ext.-3/1 and he identified the petitioners who were present. However, in his cross-examination, he had stated that on written paper, he had made his signature and that he does not know to read, rather he can make only his signature. He has further stated that no article was seized before him and that his statement was not recorded by the police and due to friendship with the petitioners, he recognizes the petitioners. So far as P.W.-6 is concerned, he is also a seizure list witness. He had stated in his deposition that at the time of occurrence, he had gone for his livelihood and when he returned back, he came to know that in the instant case, the petitioners have been caught and remanded to jail. He has further stated that his signature was obtained and the same was marked as Ext.3/2. He has also stated that P.W.-2 had also put his signature. He has stated that he had recognized both the petitioners and that the liquor-in-question was being prepared outside the residence and not inside the residence. However, this witness in his cross-examination has stated that the police had taken his signature, but what was written he could not say and has also stated in cross-examination that the articles in question were not seized in his presence. 12. This Court finds that the learned trial court by a detailed and reasoned judgement convicted the petitioners for offence under Sections 273 and 274/34 of Indian Penal Code as well as Section 47(A) of the Excise Act and punished both the petitioners to undergo simple imprisonment for six months for offence under Section 273 of IPC, simple imprisonment for six months for offence under Section 274 of IPC and simple imprisonment for 2 years and to pay a fine of Rs. 5000/- each for offence under Section 47(A) of Excise Act and in default of payment of fine, they were further sentenced to undergo simple imprisonment for six months for the said offence and all the said offences were directed to run concurrently. 13. 5000/- each for offence under Section 47(A) of Excise Act and in default of payment of fine, they were further sentenced to undergo simple imprisonment for six months for the said offence and all the said offences were directed to run concurrently. 13. This Court finds that the learned lower appellate court vide impugned judgment specifically dealt with the basic ingredients of Section 274 of IPC as well as basic ingredients of offence under Section 273 of IPC and was of the view that it was not clear as to whether seized liquor was dangerous for health of human being and it was also not clear that it was medicinal preparation and competent authority who had examined the same had stated that it was found that it is mahua wine i.e. country made liquor. Accordingly, the learned lower appellate court held that the prosecution has not proved the case under Sections 273 and 274 of Indian Penal Code beyond all reasonable doubts, as the basic ingredients could not be proved and acquitted the petitioners for offences under Sections 273 and 274 of Indian Penal Code. 14. However, so far as the charge under Section 47(A) of Bihar Excise Act, 1915 is concerned, the learned lower appellate court considered the argument of the petitioners and found the petitioners guilty for the offence under Section 47(A) of Bihar Excise Act, 1915 by a speaking order. The relevant portion of the aforesaid judgment passed by the learned lower appellate court confirming the conviction of the petitioners under Section 47(A) of Bihar Excise Act, 1915 and dealing with the evidence of seizure list witnesses is quoted hereinbelow for ready reference: - “from perusal of the evidence of prosecution witnesses as available on the record in which informant Ramsagar Ram (P.W.1) who has proved the F.I.R. and seizure list i.e. Ext. 1, 3 respectively and seizure list witness Ramsahay Oraon and Binod Bhuian have also proved the signature as put on 31.07.09 on seizure list and these are Ext. 1, 3 respectively and seizure list witness Ramsahay Oraon and Binod Bhuian have also proved the signature as put on 31.07.09 on seizure list and these are Ext. 3/1 and 3/2 respectively and they have supported to the extent that 20 Ltrs of country made liquor (Mahua wine) was recovered and the same has been established vide Ext.4/1 and other incriminating article i.e. Deckchi, one gallon was also recovered from the place of occurrence i.e. from the house of accused Umesh Bhuian for which no valid explanation given nor paper produced and P.W.8 Nand Kishore Singh (I.O) has proved the place of occurrence and also recorded the statement of prosecution witnesses i.e. in respect of recovery of 20 Ltrs of country made liquor (Mahua wine) which was prepared by the accused persons i.e. Umesh Bhuian and Birendra Oraon for which no valid explanation was given and other witness P.w.1 Ramsagar Ram, informant, P.w.2 Ramsahay Oraon, P.w.4 Bijay Kant yadav, P.w.5 Binod Panna, P.w.6 Binod Bhuian, P.w.7 Baijnath Yadav, P.w.10 Prasoon Kumar and P.w.11 Daroga singh have also supported to the extent that 20 Ltrs of country made liquor(Mahua wine) was recovered from the house of accused Umesh Bhuian and Birendra Oraon and possession of aforesaid country made wine from the possession of Umesh Bhuian and Birendra Oraon has been proved it has been proved and it was recorded and proved as country made wine and it was found as country made liquor (Mahua wine) (Ext. 4/1) ……………… I find that necessary ingredients of Section 47(a) of Bihar Excise Act, 1915 has been proved i.e. in accordance with law and 20 Ltrs of country made liquor (Mahua wine) was recovered and it was found to be country made liquor (Ext.4/1) and court below has rightly held and found the accused persons guilty holding that they were found in possession of aforesaid 20 Ltrs country made liquor i.e. within his knowledge that they were not granted licence for its preparation and accused persons were caught red handed while they were indulged in preparation of country made liquor(Mahua wine).” 15. This Court finds that all the members of the raiding party as well as the investigating officer of the case have fully supported the prosecution case and they have been thoroughly cross-examined. This Court finds that all the members of the raiding party as well as the investigating officer of the case have fully supported the prosecution case and they have been thoroughly cross-examined. This Court also finds that the seizure list witnesses have not denied their signatures on the seizure list, but they have not supported the prosecution case to the extent that they have deposed that they were not aware as to what was written on the seizure list and further that the seizure was not made in their presence. These two witnesses however have identified the petitioners in the court. This Court also finds that there is no evidence on record to show any kind of animosity between any of the members of the raiding party/investigating officer and the petitioners and there is nothing to disbelieve the consistent evidence of the members of the raiding party as well as the investigating officer of the case. 16. This Court finds that the learned lower appellate court also by a well-reasoned speaking order upheld the conviction of the petitioners under Section 47(A) of Bihar Excise Act, 1915 and so far as the conviction under Section 47(A) of Bihar Excise Act, 1915 is concerned, there is concurrent findings of the learned courts below who have returned findings after due appreciation of the evidences on record and this Court does not find any perversity or illegality with the aforesaid concurrent finding of facts and conviction of the petitioners under Section 47(A) of Bihar Excise Act, 1915. 17. However, on the point of sentence of the petitioners, this Court finds that the case was instituted in the year 2009 and more than 11 years have already elapsed and the petitioners have faced the rigors of criminal case for more than 11 years and have already remained in custody for a period of more than seven and a half months. This Court is of the considered view that the ends of justice would be served, if the sentence of the petitioners is confined to the period already undergone and the fine amount is enhanced by Rs. 5000/- each to be deposited by each of the petitioners before the learned court below within 3 months from the date of communication of this judgement. Thus, the total fine amount to be paid by each of the petitioners is Rs. 5000/- + Rs. 5000/- i.e. Rs. 10,000/- respectively. 5000/- each to be deposited by each of the petitioners before the learned court below within 3 months from the date of communication of this judgement. Thus, the total fine amount to be paid by each of the petitioners is Rs. 5000/- + Rs. 5000/- i.e. Rs. 10,000/- respectively. If the petitioners do not deposit fine amount of total of Rs. 10,000/- as indicated above, the bail bond of the petitioners would be cancelled and the petitioners would serve the sentence already imposed by the learned court below for offence under Section 47(A) of the Excise Act. 18. Accordingly, the present revision application is hereby disposed of with the aforesaid modification of sentence. 19. Interim order, if any, stands vacated. 20. Pending interlocutory applications, if any, are also dismissed as not pressed. 21. Let the lower court records be immediately sent back to the learned court below. 22. Let a copy of this order be communicated to the learned court below through ‘e-mail/FAX’.