Jagmohan and Another Vs. State of M.P. - Court Judgment

Excerpt:
m.p. excise act section 34(1)(a), section 34(2), section 36 conviction trial court convicted accused-applicants for the offence punishable under section 34(1)(a) read with section 34(2) and section 36 of the act hence, this revision court held both the courts found that applicants were in the possession of boxes of foreign liquor who were transporting the same but it was nowhere found that they were in conscious possession of the foreign liquor therefore, only on this findings, applicants cannot be held guilty as the articles were hidden in the heap of products prosecution has not produced any evidence to infer that contraband articles were transported with knowledge of applicants whereas the circumstances shoe that applicants had no knowledge about the liquor in the truck since there is no evidence against the applicants, the view of court is that applicants have been wrongly convicted therefore, nothing illegal is recorded in findings recorded by courts below conviction and sentence of applicants is set aside petition allowed. (paras 10, 11, 12, 13) comparative citation: 2014 (4) mpht 165, this revision has been preferred by the applicant under section 397/401 of the code of criminal procedure being aggrieved by the judgment dated 18-2-2014 passed by additional judge to the court of i asj, jhabua in cr.a.no.16/14 whereby he affirmed the conviction and sentence dated 22-1-2014 passed by cjm, jhabua in cr. case no. 2217/2013 awarded to the applicant as under:- section 34(1) read with section 34(2) of m.p. excise actone year ri with fine of rs.25000/-section 36 of m.p excise actsix months ri with fine of rs.1000/- 2. brief facts of this case are that on 14-11-13 at about 8 a.m. excise sub-inspector, sajendra mori intercepted a truck bearing registration no.hr-46-c-9756 near toll booth of village unnai matapada petlawad road, which was going towards thandla. the accused jagmohan and monu were driver and cleaner in that truck. on checking the excise sub-inspector found that there was discrepancy in the number of the truck and in the invoice-cum-delivery challan. therefore, the seal of truck was broken and on searching, it was found that in the heap of cinthol products, 357 boxes foreign liquor and beer were kept. boxes containing 3440.16 bulk litres liquor were seized and driver and cleaner were arrested. crime no. 200/2013 was registered and thereafter, a complaint filed before cjm, jhabua. 3. cjm stated the particulars of the offence to the accused persons and asked whether they plead guilty or have any defence. they denied the allegation and prayed for trial. 4. prosecution examined three witnesses, whereas applicants did not produce any witness in defence. after hearing learned counsel for the parties, learned cjm found the applicants guilty and convicted them for the offence punishable under section 34(1)(a) read with section 34(2) and section 36 of the m.p. excise act and sentenced as aforesaid. the applicants took the matter to sessions court in appeal but they did not find favour with the learned session court. feeling aggrieved thereby, they have preferred this revision. 5. learned counsel for the applicants raised only two contentions before this court. the first contention is that the alleged liquor was not sent for chemical examination, therefore, it was not proved that the seized articles were liquor. 6. second contention is that there is no evidence to show that the driver and cleaner of the sealed truck were in conscious possession of alleged liquor and moreover they did not tried to escape when the truck was being searched. therefore, findings of the courts below that the liquor was seized from the possession of the applicants is incorrect. 7. on the other hand, learned g.a. supports the order of conviction and sentence passed by the courts below. 8. after hearing learned counsel for both the parties, i have gone through the judgment of courts below. 9. it is true that the seized liquor was not sent for chemical examination but relying upon the evidence to excise sub-inspector sajendra (p.w.1) both the courts below found that the seized were foreign liquor. sajendra (p.w.1) desposed that he is a trained person and has got vast experience to examine the liquor. he stated that he applied the physical test and found that the seized article was foreign liquor. in the aforesaid context, this court in the case of kallu khan vs. state, 1980 jlj 509 and sukhlal vs. state, 1995 mplj 266, held that chemical examination is not the only manner in which the identity of the liquid can be proved. it can be proved by the person having expertise in the field. therefore, i find nothing illegal in the findings recorded by the courts below in this regard. 10. now coming to the second contention with regard to conscious possession of the alleged liquor, both the courts found that the applicants were in the possession of 357 boxes of foreign liquor were transporting the same but it was nowhere found that they were in conscious possession of the foreign liquor. therefore, only on this findings the applicants cannot be held guilty as the articles were hidden in the heap of cinthol products. 11. the prosecution has not produced any evidence to infer that the contraband articles were transported with the knowledge of the applicants whereas the circumstances shoe that the applicants had no knowledge about the liquor in the truck. this court before coming to any conclusion considered the following circumstances:- that the applicants were driver and cleaner of the vehicle and the owner of the vehicle was not present in the truck. that when the truck stopped it was in sealed condition and the seal was broken later nut the driver and cleaner did not try to escape from the place of occurrence but instead co-operated in search. that the export slip and invoice-cum-delivery challan were found in the truck, which were in english language. the applicants were unable to read these papers. that the truck was in the sealed condition and the boxes of liquor were hidden in the heap of cinthol products and hence there was no occasion for the applicants to distort or add any articles in the truck. that the applicants have no criminal antecedents. 12. after having been considered for the aforesaid these circumstances, it cannot be inferred that the applicants were aware of the fact that the liquor boxes were kept in the heap of cinthol products in the truck. since there is no evidence against the applicants, the view of this court is that the applicants have been wrongly convicted. 13. resultantly, this revision succeeds and is hereby allowed. the conviction and sentence of the applicants is set aside. the amount of fine (if deposited) be returned to the applicants. it is report that the applicants are in jail. they be released forthwith if not required in any other case. office is directed to comply the order.

Judgment:

This revision has been preferred by the applicant under Section 397/401 of The Code of Criminal Procedure being aggrieved by the judgment dated 18-2-2014 passed by Additional Judge to the Court of I ASJ, Jhabua in Cr.A.No.16/14 whereby he affirmed the conviction and sentence dated 22-1-2014 passed by CJM, Jhabua in Cr. Case No. 2217/2013 awarded to the applicant as under:-

Section 34(1) read with Section 34(2) of M.P. Excise Act	one year RI with fine of Rs.25000/-
Section 36 of M.P Excise Act	Six months RI with fine of Rs.1000/-

2. Brief facts of this case are that on 14-11-13 at about 8 a.m. Excise Sub-Inspector, Sajendra Mori intercepted a truck bearing registration No.HR-46-C-9756 near Toll Booth of Village Unnai Matapada Petlawad Road, which was going towards Thandla. The accused Jagmohan and Monu were driver and cleaner in that truck. On checking the Excise Sub-Inspector found that there was discrepancy in the number of the truck and in the Invoice-Cum-Delivery Challan. Therefore, the seal of truck was broken and on searching, it was found that in the heap of Cinthol Products, 357 boxes foreign liquor and beer were kept. Boxes containing 3440.16 bulk litres liquor were seized and driver and cleaner were arrested. Crime No. 200/2013 was registered and thereafter, a complaint filed before CJM, Jhabua.

3. CJM stated the particulars of the offence to the accused persons and asked whether they plead guilty or have any defence. They denied the allegation and prayed for trial.

4. Prosecution examined three witnesses, whereas applicants did not produce any witness in defence. After hearing learned Counsel for the parties, learned CJM found the applicants guilty and convicted them for the offence punishable under Section 34(1)(a) read with Section 34(2) and Section 36 of the M.P. Excise Act and sentenced as aforesaid. The applicants took the matter to Sessions Court in appeal but they did not find favour with the learned Session Court. Feeling aggrieved thereby, they have preferred this revision.

5. Learned Counsel for the applicants raised only two contentions before this Court. The first contention is that the alleged liquor was not sent for chemical examination, therefore, it was not proved that the seized articles were liquor.

6. Second contention is that there is no evidence to show that the driver and cleaner of the sealed truck were in conscious possession of alleged liquor and moreover they did not tried to escape when the truck was being searched. Therefore, findings of the Courts below that the liquor was seized from the possession of the applicants is incorrect.

7. On the other hand, learned G.A. supports the order of conviction and sentence passed by the Courts below.

8. After hearing learned Counsel for both the parties, I have gone through the judgment of Courts below.

9. It is true that the seized liquor was not sent for chemical examination but relying upon the evidence to Excise Sub-Inspector Sajendra (P.W.1) both the Courts below found that the seized were foreign liquor. Sajendra (P.W.1) desposed that he is a trained person and has got vast experience to examine the liquor. He stated that he applied the physical test and found that the seized article was foreign liquor. In the aforesaid context, this Court in the case of Kallu Khan Vs. State, 1980 JLJ 509 and Sukhlal Vs. State, 1995 MPLJ 266, held that chemical examination is not the only manner in which the identity of the liquid can be proved. It can be proved by the person having expertise in the field. Therefore, I find nothing illegal in the findings recorded by the Courts below in this regard.

10. Now coming to the second contention with regard to conscious possession of the alleged liquor, both the Courts found that the applicants were in the possession of 357 boxes of foreign liquor were transporting the same but it was nowhere found that they were in conscious possession of the foreign liquor. Therefore, only on this findings the applicants cannot be held guilty as the articles were hidden in the heap of Cinthol Products.

11. The prosecution has not produced any evidence to infer that the contraband articles were transported with the knowledge of the applicants whereas the circumstances shoe that the applicants had no knowledge about the liquor in the truck. This Court before coming to any conclusion considered the following circumstances:-

That the applicants were driver and cleaner of the vehicle and the owner of the vehicle was not present in the truck.

That when the truck stopped it was in sealed condition and the seal was broken later nut the driver and cleaner did not try to escape from the place of occurrence but instead co-operated in search.

That the export slip and invoice-cum-delivery challan were found in the truck, which were in English language. The applicants were unable to read these papers.

That the truck was in the sealed condition and the boxes of liquor were hidden in the heap of Cinthol products and hence there was no occasion for the applicants to distort or add any articles in the truck.

That the applicants have no criminal antecedents.

12. After having been considered for the aforesaid these circumstances, it cannot be inferred that the applicants were aware of the fact that the liquor boxes were kept in the heap of Cinthol Products in the truck. Since there is no evidence against the applicants, the view of this Court is that the applicants have been wrongly convicted.

13. Resultantly, this Revision succeeds and is hereby allowed. The conviction and sentence of the applicants is set aside. The amount of fine (if deposited) be returned to the applicants.

It is report that the applicants are in jail. They be released forthwith if not required in any other case.

Office is directed to comply the order.