IMPORTANT POINT
No prohibition on conviction being recorded on basis of testimony of official witnesses if they were found to be trustworthy.

JUDGMENT

Arijit Pasayat, J. — Leave granted.

2. Appellant was convicted for alleged commission of offence punishable under Section 46A(a)(ii) of the Bengal Excise Act, 1909 (in short the 'Act'). According to the prosecution he was in unlawful possession of 40 litres of illicit distilled liquor.

3. The trial found him guilty and convicted him in terms of Section 46A(a)(ii) and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.500/- with default stipulation.

4. The said order of the learned Judicial Magistrate, 1st Court at Diamond Harbour, 24 Parganas (South) was maintained by learned Additional Sessions Judge, 6th Court, Alipore, 24 Parganas (South). The High Court also did not find any substance in the revision filed before it and dismissed the same.

5. The background facts leading to prosecution and culminating in conviction essentially are as follows:

6. On 17.01.1996 at about 10.30 A.M the present appellant was apprehended on Falta Road near Fatehpur market for unlawful possession of 40 litres of illicit distilled liquor in a polythene jar. He was arrested and the article was seized after observing formalities followed by taking sample in a separate bottle which was forwarded to the chemical examiner. The analysis report is in the positive with the finding that the liquid contained 61.22 alcohol which is of illicit origin. The Government suffered a loss of Rs.1400/- toward revenue.

7. Four witnesses on behalf of the prosecution while five witnesses on behalf of the defence were examined, and after considering the facts, circumstances and materials on record, the trial Court found the appellant guilty under Section 46A (a)(ii) of the Act, convicted him there under and sentenced him to suffer Rigorous Imprisonment for three years and to pay fine of Rs.500/- in default to R.I. for one month which was affirmed as stated supra by the First Appellate Court and in revision petition before the High Court was dismissed.

8. Learned counsel for the appellant submitted that no independent witness was examined and, therefore, the conviction is per se unsustainable. It is also submitted that the conviction in terms of Section 46A(a)(ii) is uncalled for and at the most the same could be in terms of Section 46A(a)(i) of the Act. It is also submitted that the sentence imposed is high, beyond the limit prescribed by the statute and, therefore, are unsustainable.

9. Learned counsel for the State, supported the order.

10. The first issue relates to non-examination of independent witnesses. The courts below analysed in detail the factual position and came to hold as to why it was not possible for the prosecution to examine any independent witness. There is no prohibition on a conviction being recorded on the basis of the testimony of official witnesses if they are found to be trustworthy.

11. Coming to the question about the applicable provision, the provision itself needs to be noted. The same reads as follows:

"46A. Penalty for unlawful manufacture of spirit or transport etc., of intoxicating drug, cultivation of hemp, use and possession of materials for manufacture of spirit and intoxicating drug. – Whoever in contravention of this Act or of any rule, notification or order made, issued or given, or a license, permit or pass granted under this Act,–

(a)manufactures any spirit or intoxicating drug other than bakhar or cultivates hemp plant (Cannabis sativa L.) or; (from which an intoxicating drug can be manufactured for produced), or

(b)uses, keeps or has in his possession any material, still, utensils, implements or apparatus whatsoever for the purpose mentioned in clause (a), or

(c)imports, exports, transports, possesses or sells spirit or intoxicating drug other than bakhar, or;

(cc)bottles spirit for the purpose of sale, or;

(d)works any distillery or brewery, or

(e)establishes any distillery or brewery, or warehouse,

(f)collects or sells any portion of hemp plant (Cannabis sativa L.) from which an intox