JUDGMENT :

1. Heard Mr. Saurav Kumar, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Arup Kumar Dey, learned counsel appearing on behalf of the opposite party-State.

3. Present revision application has been filed against the judgment dated 28.02.2012, passed by learned Sessions Judge-I, Jamshedpur in Cr. Appeal No. 241 of 2009, whereby the appeal filed by the petitioner has been dismissed.

4. The petitioner has been convicted vide judgment dated 02.09.2009, passed by learned Judicial Magistrate, 1st Class, Jamshedpur, in G.R. Case No. 2541 of 2001, arising out of Sidgora P.S. Case No. 145 of 2001, corresponding to T.R. No. 372 of 2009, whereby the petitioner has been convicted for the offence under Section 47 (a) of the Excise Act and has been sentenced to undergo rigorous imprisonment for two years with fine of Rs. 1,000/- and in default of payment of fine, he has been directed to undergo further imprisonment for one month.

5. Learned counsel for the petitioner while assailing the impugned judgments has submitted that informant of the case has not been examined and even the seizure list witnesses has not been examined in the present case. He submits that no independent witness has been examined, although P.W. 2 has clearly deposed that seizure was made in presence of two independent witnesses. Learned counsel has also submitted that although the vessels/tube in which the liquor was allegedly kept at the time of seizure have been produced before the learned court below as material exhibits, but they were found empty and accordingly seizure of liquor from the vessel/tube has not been proved. He has further submitted that no enquiry was made regarding the ownership of the house where the seized liquor was kept and it has been alleged that the petitioner was found running away from the place of occurrence along with the co-accused. The learned counsel submits that the prosecution has not been able to prove the case beyond all reasonable doubt and therefore the conviction of the petitioner calls for interference in revisional jurisdiction. Without prejudice to the aforesaid submission, the learned counsel has submitted that incident is of 20.12.2001 and about 20 years have elapsed from the date of the incident. Though the petitioner has been sentenced for a period of two years, but there is minimum sentence of three months only as per the provisions of Section 47 (a) of the Excise Act. This is the first offence of the petitioner. He has also submitted that the petitioner has remained in custody for some period during trial i.e. from 20.12.2001 to 24.12.2001 and thereafter during the pendency of the present case during the period from 5.6.2012 to 15.06.2012. The learned counsel submits that considering the facts and circumstances of the case and without prejudice to the arguments of the petitioner on merit, the sentence of the petitioner be modified and limited to the period already undergone by him in custody.

6. The learned counsel appearing on behalf of the opposite party on the other hand has submitted that both the learned courts below have convicted the petitioner after considering the materials on record and no case for interference is made out as there is no illegality or perversity in the impugned judgments. He submits that non-examination of the Investigating Officer of the case is not fatal to the prosecution case and the sample of seized articles were sent for examination by the Excise Inspector whose report has been exhibited as exhibit-5 which is a chemical report and it supports the prosecution case. Learned counsel has also submitted that the reason for the vessel/tube becoming empty has also been duly explained. The learned counsel submits that other witnesses including the investigating officer of the case have fully supported the prosecution case. So far as sentence is concerned, the learned counsel has submitted that the sentence passed by the learned courts below is adequate and the same does not