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2022 Supreme(Pat) 565
IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and KHATIM REZA, JJ.
Criminal Appeal (DB) No.565 of 2021
(2.9.2022)
Munna Sao ... Appellant
vs.
State of Bihar ... Respondent
For the Appellant : M/s Vikram Deo Singh, Rabindra Prasad Singh.
For the Respondent: Mr. Abhimanyu Sharma.
Headnote:
Bihar Prohibition and Excise Act, 2016 – Sections 30(a), 74 and 82 – Seizure of liquor – Conviction and sentence – Place where appellant was arrested is different from place where recovery of illicit IMFL was made – In F.I.R., it is specifically mentioned that appellant disclosed to police when he was apprehended that he was coming from his house and thereafter, police party proceeded towards his house – It was not the case of prosecution, as disclosed in F.I.R. that Police Officer had gone to house of appellant where illicit IMFL was handed over to him – There has been no compliance of requirement under Section 74(2) of Act, which requires every arrest made under Section 74 of Act to be reported to Collector forthwith – Mere non-communication of factum of arrest, particularly, when no prejudice has been shown to have been caused to appellant because of non-compliance of requirement under Section 74(2) of Act, cannot be sole basis for this Court to upset finding recorded by trial court – Requirement of reporting of arrest under Section 74(2) of Act is directory and not mandatory – Finding of conviction recorded by Trial Court deserves interference in view of apparent consistencies in evidence of prosecution witnesses – Impugned judgment of conviction and order of sentence set aside. (Paras 15, 16, 26, 27, 29, 30 and 32)
Bihar Prohibition and Excise Act, 2016 – Section 74(2) – If there is difference between English version and Hindi version of a statutory provision enacted by State legislature, Hindi version shall prevail. (Para 28)
Chakradhari Sharan Singh, J.—By a judgment and an order dated 11.08.2021/18.08.2021 passed by learned Additional District and Sessions Judge, in G.R. No. 816 of 2017, arising out of Nalanda, Rahui P.S. Case No. 283 of 2017, the appellant has been convicted and sentenced as under:
| Appellant Name | Conviction under Section | Sentence | ||
| Imprisonment | Fine (Rs.) | In default of fine | ||
| Munna Sao | 30(a) of the I.P.C. | Rigorous Imprisonment for 11 years | 1,50,000/- | R.I. for 3 months. |
2. The said judgment and order of the trial court is under challenge in the present Criminal Appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C. for brevity).
3. We have heard Mr. Vikram Deo Singh, learned counsel for the appellant and Mr. Abhimanyu Sharma, learned Additional Public Prosecutor for the State.
4. The prosecution's case as disclosed in the First Information Report (F.I.R., for brevity), based on the self-statement of Sub-Inspector of Police Sunil Kumar Nirjhar (PW-7) on 13.10.2017 is that on receipt of a secret information at 03.20 pm on 13.10.2017 to the effect that some persons were engaged in illicit trade of Indian Made Foreign Liquor (IMFL), a team was constituted and an Assistant Sub-Inspector of police, Ram Dev Mandal (PW-1) was sent in civil dress to the concerned place, feigning to be a customer. The informant and other police officials were, in the meanwhile, watching from a close distance the movements. At 03.30 pm, the appellant came with IMFL (Whiskey) and gave it to PW-1, set up by the police as a customer to trap the offender. The moment the appellant handed over the IMFL to PW-1 i.e. the police personnel feigning to be the customer, P.W.-1 and other policemen apprehended him. Thereafter, the informant and others also reached there and started making inquiries. The appellant upon interrogation disclosed his name. On further enquiry about the illicit liquor, the appellant disclosed that he was coming from his house. Thereafter, the police personnel went along with the appellant to his house and recovered 160 bottles of Royal Stag Deluxe whiskey in 750 ml. bottles kept in 14 cartons. Further, 72 bottles of 375 ml of Royal Stag Deluxe whiskey in three cartons were also recovered in presence of seizure list witnesses namely Santosh Kumar and Rajsahi Yadav, both residents of the same Rahui Bazar, under Rahui police station, where the raid was conducted. The seizure list was prepared in the presence of the said seizure list witnesses, who willingly put their signatures on the seizure list memo. Based on the aforesaid accusation, the concerned Rahui P.S. Case No. 283 of 2017 came to be registered disclosing commission of offences punishable under Section 30(a) of the Bihar Prohibition and Excise Act, 2016.
5. The police upon completion of investigation submitted charge-sheet. Cognizance was taken based on the said charge-sheet. The Special Court, Excise framed charge on 02.02.2018 as under:—
“That you on or about the 13th dated October 2017 at village-Rahui, P.S. Rahui, Distt.-Nalanda, in contravention of the Provision of Bihar Prohibition and Excise Act, 2016, you had in your possession of 160 bottles Royal Stag Whisky of 750 ml contained in 14 cartoons, 72 bottles Royal Stag Whisky of 375 ml contained in 3 cartoons kept in your house and also a mobile of Samsung Co. for the purpose of sell and thereby committed an offence under Section punishable 30(a) of the Bihar Prohibition and Excise Act, 2016 and within my cognizance.”
6. As the appellant denied the charge, he was put on trial.
7. At the trial, altogether eight witnesses came to be examined as P.Ws 1 to 8, all of whom were members of the same police party which had conducted the trap and raid of the appellant's house and caused seizure of the illicit IMFL. The seizure list was exhibited as exhibit No. 1. The signatures of th
