IN THE COURT OF CHATTISGARH AT BILASPUR
Criminal Revision No.231 of 2005
Manoj Tiwari
...Petitioners
VERSUS
State of Chhattisgarh
...Respondents
! Shri C.R. Sahu, counsel for the applicant.
^ Shri D.K. Gwalre Panel Lawyer for the State.
Hon'ble Justice SUNIL KUMAR SINHA
Dated: 12/12/2005
: J U D G M E N T
(12.12.2005)
(1) This revision has been directed against the
impugned judgment dated 07.5.2005 passed in Criminal
Appeal No.102/2005 by the 11th Addl. Sessions Judge,
(F.T.C), Raipur (C.G) arising out of the judgment dated
31.3.2005 passed in Criminal Case no.602/2005 by the
C.J.M., Raipur, whereby the appeal preferred by the
appellant against the conviction and sentence awarded by
the trial Court, under section 34(1) & (2) of Excise
Act, has been dismissed by the appellate Court.
(2) The facts of the case are that on 26.2.2004, an
information was received by Assistant Sub-Inspector Shri
Ramesh Manjhi (P.W.2), that some illicit liquor is being
transported in an Auto Rickshaw bearing Regn.No. C.G.04
ZA 5580 from Gudhiyari to Teldhani Naka. On receipt of
this information, he made contact with the other
patrolling party and got them accompanied with him and
ultimately the aforesaid Rickshaw was located near
Teldhani Naka, Raipur. The Rickshaw was being driven by
accused Pyarelal and present applicant/accused was
sitting in it. When the vehicle was searched, it was
found that there were 144 quarter bottles of Indian Made
Goa English Liquor containing 180 Ml. in each bottle in
Rickshaw. After the seizure, two notices were given
vide Ex.P.3 & P-4 to the accused persons for producing
the documents in relation to ownership/legal
transportation of the aforesaid liquor u/s 91 of Cr.P.C.
but the accused persons could not produce any document
and made endorsement to this effect in the notice Ex.P.3
& P-4 by their own hand-writing putting their
signatures. The seizure of the aforesaid liquor was
made vide Ex.P.2 and the Auto Rickshaw was also seized
vide Ex.P.1. At the trial, two punch witnesses namely
Rajendra Singh (P.W.3) and Daulal (PW.5) turned hostile
and had not supported the case of prosecution. The
learned trial Judge, believing on the testimony of the
Investigating officer, Ramesh Kumar Manjhi (P.W.2), and
further believing the testimony of another member of
the patrolling party, Head Constable Radhe Shyam
(P.W.1), held the accused persons guilty of the offence
punishable u/s 34(1) & (2) of the Excise Act and
sentenced them to undergo R.I. for one year and to pay
fine of Rs.25,000/- – 25,000/- each, in default of
payment of fine, to under go additional R.I. for 9
months -9 months each.
(3) Against the aforesaid judgment and order passed by
the trial Court, the accused persons preferred an appeal
before the Sessions Court but the Sessions Court
dismissed their appeal and confirmed the conviction and
sentence passed by the trial Court. It is against this
judgment of the appellate court, this revision has been
filed by one of the accused persons namely Manoj Tiwari.
(4) Referring to a decision rendered in the matter of
Nandu @ Nandkishore -Vs- State of M.P. (2002) (2)
C.Cr.J. 712 (M.P), learned counsel for the applicant
argued that since both the witnesses of seizure have
turned hostile and the version of the investigating
officer is not supported by the other independent
witnesses, therefore, the conviction and sentence
awarded to the applicant is not proper. He relies on
para 11 of the aforesaid judgment.
(5) On the other hand, learned State Counsel argued
that the conviction can be based on the sole testimony
of the investigating officer, if the same is wholly
reliable and dependable. He also argued that in the
present case, the testimony of the Investigating Officer
is fully corroborated by another member of the
patrolling party namely Radhe Shyam (P.W.1).
(6) I have heard learned counsel for the parties at
length and have also perused the records of the two
courts below.
(7) There is no doubt in the mind of this Court that if
the evidence of the investigating officer is found to be
trustworthy and dependable and nothing material has been
brought to discredit his evidence in the cross
examination or his evidence is otherwise not unreliable,
the Criminal Court would be justified in convicting the
accused on the sole testimony of the investigating
officer. I am fortified in my views by a decision of
the Supreme Court rendered in the matter of Lopchand
Naruji Jat and another -Vs- State of Gujarat (2004) 7
SCC 566. Normally in cases where the evidence led by
the prosecution as to a fact depends solely on the
police witnesses, the courts seek corroboration as a
matter of caution and not as a matter of a rule. Thus,
it is only a rule of prudence, which makes the court to
seek corroboration from an independent source, in such
cases while assessing the evidence of the police. But in
cases where the court is satisfied that the evidence of
the police can be independently relied upon then in such
cases, there is no prohibition in law that the same
cannot be accepted without an independent corroboration.
(Please see Praveen Kumar -Vs- State of Karnataka,
(2003) 12 SCC 199). In the present case, nothing has
been brought on record as to why the investigating
officer should be disbelieved. A very short cross
examination has been done in which nothing has come to
cause shadow on the testimony of the investigating
officer Shri Ramesh Kumar Manjhi (P.W.2). On the
contrary, his statement is fully corroborated by the
statement of Head Constable Radhe Shyam (P.W.1), who
says that when he was doing the patrolling duty with
another party he was contacted by the investigating
officer after receipt of the information about the
transportation of illicit liquor and then only his party
accompanied the investigating officer and all of them
went to the spot and stopped the Auto Rickshaw and made
search thereof leading to the seizure of the aforesaid
liquor. Therefore, in the facts and circumstances of
this case, I am not inclined to accept that since the
version of the I.O. is not supported by the independent
witnesses of seizure, his testimony should be thrown out
and conviction based upon his testimony should be set
aside. In the facts and circumstances of the case, the
law cited by the learned counsel for the applicant will
not be applicable because in the aforesaid judgment,
nothing has been said about the testimony of the I.O.
That is to say as to whether his testimony was
trustworthy or untrustworthy. The aforesaid judgment
does not help the applicant and the same is
distinguishable. It is also distinguishable on the
point that in the present case the version of the
investigating officer is corroborated by P.W. 1 Radhe
Shyam.
(8) Another point has been raised that all the bottles
seized from the possession of the applicant was not sent
for chemical examination, therefore, it cannot be said
that the applicant was carrying illicit liquor to the
tune of 25 bulk litres. P.W.4 namely J.K. Arora has
been examined as a witness who performed the test of
liquor and submitted his report in this regard. In his
report Ex.P.12, he stated that 5 quarter bottles
containing 180 ml. liquor in each were brought before
him in sealed condition and he performed test by
observation by smell and by taste and he also performed
the blue litmus test as well as the test through
Hydrometer and aforesaid report Ex.P.12 was submitted
saying that the substance sent for examination was an
Indian made foreign liquor whisky. The argument
advanced is that the entire bottles were not sent for
examination, therefore, it has not been established that
the entire seized property was liquor. In this regard,
if we look into the notices given by the Investigating
Officer u/s 91 of Cr.P.C. for production of the
documents regarding the validity of the liquor (Ex.P.3 &
P-4), it would appear that in the aforesaid notices, it
has been mentioned that the articles seized were the
quarter bottles of Indian Made Foreign Liquor and the
documents of those liquor were demanded. In reply to
the above notice u/s 91 Cr.P.C., the accused persons had
written in their own hand writing that they were having
no valid papers to transport the aforesaid liquor with
them. This goes to show that the seized article was
admitted to be the liquor by the accused persons before
the Police Officer and the denial was only to the extent
that they were having no legal papers regarding
possession/transportation of the aforesaid liquor.
Therefore, the arguments advanced that the prosecution
could not establish that the entire bottles (including
the bottles not sent for chemical examination) were
containing liquor cannot be sustained.
(9) Now the main question arises as to what should be
the offence under which the applicant should be
convicted. If we examine the contents of the charges
framed against the applicant and the co-accused it would
appear that the accused persons were charged for
carrying 25 bulk litres of aforesaid liquor. The entire
trial was conducted for illegal transportation of 25
bulk litres of liquor. The order sheet of the J.M.F.C.,
dated 18.3.2005 would also show that since the
allegations were in relation to transportation of 25
bulk litres, therefore, on the basis of certain
amendment, the Court of J.M.F.C. was having no
jurisdiction and the matter was sent for trial to the
C.J.M. The trial Court in the first part of its
judgment has also mentioned about the quantity in bulk
litres which is expressed as 25 bulk litres, but
ultimately in the concluding para of judgment (Para 11)
it has recorded a finding that the accused persons were
found transporting more than 25 bulk litres of liquor
and then only a conviction and sentence u/s 34(1) & (2)
of the Excise Act has been awarded and for this a
minimum punishment vide sub-section (2) that is R.I.
for one year and fine of Rs.25,000/- has been awarded.
(10) So far as holding the applicant guilty of the
offence under section 34 {substantially under section 34
(1) (a)} is concerned, the judgment is sustainable, but
imposing the sentence as aforementioned with the aid of
sub-section (2) of section 34 holding the quantity of
liquor to be more than 25 bulk litres cannot be
sustained as according to the judgment of the trial
Court, the quantity of liquor transported was shown to
be 25 bulk litres and the aforesaid punishment has been
awarded as if the quantity was “exceeding” 25 bulk
litres and the appellate court also lost sight of this
fact. Unless the quantity is proved to be “exceeding”
25 bulk litres, the aforesaid sentences holding the case
of exceeding quantity of 25 bulk litres cannot be
imposed.
(11) The word `exceeds’ engrafted by the legislature in
sub Section (2) of Section 34 of the Excise Act has got
a great significance. The said word is a legislative
command given by the legislature for imposing punishment
in case of an offence punishable under Clause (a) or (b)
of sub Section (1) of Section 34 of the Excise Act when
the case relates to the liquor, and is based upon the
gravity of the offence which has been determined by the
legislature on the basis of quantity of the liquor for
which the offence is said to have been committed. The
word “exceeds” has to be given an ordinary meaning and
the same must be intended to be the quantity “more than”
25 bulk litres and the Courts are required to construe
the meaning of word `exceeds’ in its strict sense with
reference to the scale of measurement of liquor in
litres/bulk litres.
(12) The conviction and sentence awarded to the
applicant holding the liquor to be exceeding 25 bulk
litres is set aside. Instead the applicant is convicted
for illegally transporting 25 bulk litres of liquor (not
exceeding 25 bulk litres) and his punishment is
modified. He is convicted u/s 34(1)(a) of the Excise
Act and is sentenced to the period already undergone
(which comes about 8 months 24 days as stated by counsel
for the applicant that he could not avail the facility
of bail granted by this Court) and a fine of Rs.5000/-
in default of payment of fine of Rs. 5,000/-, he will
undergo R.I. for 1 month more. The conviction and
sentence are modified to the extent indicated above.
The revision is partly allowed.
JUDGE
12.12.2005
Rao