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2006(1) JLJ 405
W.A. Shah, J.
Babulal V. State of M.P.
Criminal Revision No. 655 of 2001: against the judgment
passed by Sessions Judge, Shajapur in Criminal Appeal No. 149 of 2001;
Decided on 6.12.2005.
According to prosecution, on 6.6.2001, PSI Vivek Chauhan PW5 along with his associates had gone to village Hajipur with a view to execute arrest warrant of a warrantee. There an informant gave him information that a person was looking for conveyance to transport liquor illegally, therefore, he went to the place said to have been occupied by the delinquent. As he reached there with his companions the delinquent. along with one container started running. He also left behind some containers. They chased and apprehended him. His identity was discovered as the accused applicant and the material with him appeared to be liquor hence he was asked by PSI Vivek Chauhan about the licence to which he replied in the negative. Accordingly, seizure proceedings were undertaken. In the presence of two panch vide Ex.P-2-C, 288 quarter bottles of Whisky, 350 quarter bottles of plain liquor as also 20 bottles of plain liquor, in all 129 bulk liters placed in different (Kattis) were seized from the accused-applicant. He was also attested vide Ex.P-3. He was taken to Police Station Sarangpur and FIR Ex.P-4 was reduced to writing. As the seized material was opined by Excise Sub-Inspector PW 1 G.L. Jonvar to be liquor, the accused was challenged in the Court of Judicial Magistrate First Class, Sarangpur, for offence of section 34(1)(a), (2) M.P. Excise Act ("Act" hereafter). He having abjured his guilt, case went to trial.
At the conclusion of the trial, the learned Magistrate held the accused-applicant guilty. Since sub-section (2) of section 34 required minimum fine of Rs. 25.000/- to be imposed for the offence under section 34(1)(a) of the Act along with jail sentence and the learned Magistrate was of the view that he not being competent to impose that much fine in view of the provisions of section 29(2) of the Code, he made a reference under section 325 to the Chief Judicial Magistrate vide order dated 24.9.2001 passed in Criminal Case No. 445/2001. The learned Chief Judicial Magistrate, Shajapur, consequently passed judgment dated 10.10.2001 in Criminal Case No. 1610/2001 holding the applicant-accused guilty under section 34(1)(a) of the Act, sentenced him under section 34(2) of the Act to RI for one year and fine of Rs. 25,000/- with a direction that default would entail further one year incarceration. The accused-applicant took the matter to Sessions Court in appeal. He did not find favour with the learned Sessions Court. Feeling aggrieved thereby, he has preferred this revision application.
The first contention of the learned counsel for the accused-applicant is that the learned trial Magistrate lacked initial jurisdiction, therefore, the conviction in question is liable to be struck down. [Paras 2 to 4
Held : Combined reading of section 26 with the above second entry of schedule first reveals that for determination of jurisdiction competence, jail sentencing empowerment of Judical Magistrate First Class is the determining factor. A Judical Magistrate First Class being competent to award jail sentence up to three years the trail of the case at hand, therefore, did not fall outside the jurisdiction of concerned Judical Magistrate First Class as it could fetch the maximum of three years of jail sentence. [Para 9
(2) Excise Act, 1915-S.34-entire seized liquor or sufficient quantity thereof-should be sent for analysis.
PW1 G.L. Jonvar the Excise SI as per his assertion in his statement, had received one-bottle of plan liquor and three or four quarter bottles of English and plain liquor. On their test he opined them as liquor vide report Ex.P-1 and Ex.P-2, As per statement of PW5 Vivek Chauhan and the seizure memo Ex.P-2-C total quantity of material in question is 129 bulk liters, therefore, the quantity put to test out of the above being comparatively very meagre the above reports can not be attached any conclusiveness. They being the only basis for proving the liqour in question to be liquor when under the circumstances they are bereft of probative value, the Courts below went perverse to find the accused-applicant guilty of illegally possessing liquor not understanding the direction of the Hon‘ble apex Court laid down in Gaunter Edwin Kircher v. State of Goa [1993 CrLJ 1485] in this respect, though with reference to narcotic law, the concerned authorities must send entire of seized quantity or sufficient quantity therefrom by way of samples of analysis. 1993 CrLJ 1485 (SC) followed. [Paras 10
¼1½ naM çfØ;k lafgrk] 1973& &/kkjk 29 ¼2½] 26 ¼[k½ (ii) rFkk vuqlwph ,d& &e-ç- vkcdkjh vf/kfu;e] 1975& &/kkjk 34¼2½& &vf/kfu;e dh /kkjk 34 ¼2½ ds v/khu vijk/k& &Ukf;d eftLVªsV dks fopkj.k dh vf/kdkfjrk gS& &vo/kkjd dkjd tsy naMkns‘k dh vof/k gSA
vfHk;kstu ds vuqlkj] 6-6-2001 dks iqfyl mifujh{kd foosd pkSgku v lk 5 ,d okjaVh ds fxjrkjh okjaV ds fu"iknu dh n`f"V ls vius lg;ksfx;ksa ds lkFk gkthiqj xzke x;k FkkA ogk¡ ,d bfÙkyk nsus okys us mls bfÙkyk nh fd ,d O;fDr ‘kjkc dk voS/k :i ls ifjogu djus ds fy, okgu ryk‘k jgk Fkk] blfy, og ml LFkku ij x;k tks vipkjh ds n[ky esa gksuk crk;k x;k FkkA tSls&gh og vius lg;ksfx;ksa ds lkFk ogka igq¡pk] vipkjh ,d dV~Vh ysdj Hkkxus yxkA dqN dfV~V;ksa ihNs NwV Hkh xbZA mUgksaus ihNk fd;k vkSj mls fxjrkj dj fy;kA mldh ‘kuk[r vfHk;qDr&vkosnd ds :i ls çdV gqbZ vkSj mlds ikl dh lkexzh ‘kjkc çrhr gqbZ blfy, iqfyl mifujh{kd foosd pkSgku }kjk mls vuqKfIr ds ckjs esa iwNk x;k ftldk mÙkj udkjkRed fn;kA rnuqlkj] vfHkxzg.k dk;Zokgh dh xbZA nks iapksa dh mifLFkfr esa çn‘kZ ih&2&lh }kjk 288 DokVZj cksrysa fOgLdh dh] 350 DokVZj cksrysa lknk ‘kjkc dh rFkk 20 cksrysa lknk ‘kjkc dh FkhA fofHkUu dfV~V;ksa esa j[kk dqy feykdj 129 cYd yhVj dh ek=k vfHk;qDr&vkosnd ls vfHkx`ghr lkexzh vkcdkjh mifujh{kd v lk 2 th-,y- tksaoj dh jk; esa ‘kjkc crkbZ xbZ Fkh] vfHk;qDr dk pkyku U;kf;d eftLVªsV çFke Js.kh lkjaxiqj ds U;k;ky; esa e-ç- vkcdkjh vf/kfu;e ¼,rfLeu i‘pkr ^vf/kfu;e*½ dh /kkjk 34¼1½ ¼d½ ds vijk/k ds fy, fd;k x;kA
fopkj.k dh lekfIr ij fo}ku eftLVªsV us vfHk;qDr vkosnd dk nks"kh vfHkfu/kkZfjr fd;k D;ksafd /kkjk 34 dh mi/kkjk ¼2½ }kjk vf/kfu;e dh /kkjk 34 ¼1½¼d½ ds v/khu vijk/k ds fy, tsy naMkns‘k ds vfrfjDr #-25]000@& dk U;wure tqekZuk vf/kjksfir fd;k tkuk visf{kr gS vkSj fo}ku eftLVªsV dh jk; Fkh fd lafgrk dh /kkjk 29 ¼2½ dh n`f"V ls og bruk vf/kd tqekZuk vf/kjksfir djus ds fy, l{ke ugha Fks] mUgksaus nkafMd ekeyk Ø-445@2001 esa ikfjr vkns‘k fnukad 24-9-2001 }kjk /kkjk 325 ds v/khu eq[; U;kf;d eftLVªsV dks funsZ‘k dj fn;kA eq[; U;kf;d eftLVªsV] ‘kktkiqj us varr% nkafMd ekeyk Ø-1610@2001 esa vkosnd&vfHkqDr dks vf/kfu;e dh /kkjk 34¼1½¼d½ ds v/khu nks"kh vfHkfu/kkZfjr djrs gq, vkns‘k fnukad 10-10-2001 ikfjr dj fn;k] vf/kfu;e dh /kkjk 34¼2½ ds v/khu ,d o"kZ ds dBksj dkjkokl vkSj #- 25]000@& ds tqekZus ls bl funs‘k ds lkFk naMkfn"V fd;k fd O;fDrØe esa ,d o"kZ dk vfrfjDr dkjkokl Hkksxuk gksxkA vfHk;qDr&vkosnd ekeyk vihy esa ls‘ku U;k;ky; ys x;kA ls‘ku U;k;ky; ls mls lgk;rk çkIr ugha gqbZA mlls O;fFkr gksdj mlus ;g iqujh{k.k vkosnu çLrqr fd;k gSA
vfHk;qDr&vkosnd dh vksj ls fo}ku dkmUlsy dk çFke ladFku ;g gS fd fo}ku fopkj.k eftLVªsV dks çkjafHkd vf/kdkfjrk ugha Fkh blfy, ç‘uxr nks"kflf) [kkfjt fd, tkus ;ksX; gSA ¼iSjk 2 ls 4½
vfHkfu/kkZfjr % çFke vuqlwph dh mi;qZDr nwljh çfof"V ds lkFk /kkjk 26 ds la;qDr ikB ls Li"V gksrk gS fd vf/kdkfjrk dh l{kerk ds vo/kkj.k ds fy,] U;kf;d eftLVªsV çFke dk Js.kh tsy naMkns‘k dk l‘kDrhdj.k] vo/kkjd dkjd gSA U;kf;d eftLVªsV çFke Js.kh rhu o"kZ rd dk tsy naMkns‘k vf/kfu.khZr djus esa l{ke gksus ds dkj.k çLrqr ekeys dk fopkj.k lacaf/kr U;kf;d eftLVªsV çFke Js.kh dh vf/kdkfjrk ds ckgj ugha Fkk D;ksafd og rhu o"kZ dk vf/kdre naMkns‘k ns ldrk FkkA ¼iSjk 9½
¼2½ vkcdkjh vf/kfu;e] 1915 ¼e-ç-½& &/kkjk 34& &laiw.kZ vfHkx`ghr ‘kjkc vFkok mldh i;kZIr ;k=k& &fo‘ys"k.k ds fy, Hksth tkuk pkfg,A
v lk 1 vkcdkjh mifujh{kd th-,y- tksaoj us mlds dFku esa çdFku ds vuqlkj ,d cksry lknk ‘kjkc dh vkSj rhu ;k pkj DokVZj cksrysa v¡xjsth vkSj lknk ‘kjkc dks çkIr dh FkhA muds ijh{k.k ij ls mlus fjiksVZ çn‘kZ ih&1 rFkk ih&2 }kjk muds ‘kjkc gksus dh jk; nhA v lk 5 foosd pkSgku vkSj vfHkxzg.k Kkiu çn‘kZ ih&2 lh ds vuqlkj ç‘uxr lkexzh dh ek=k 129 cYd yhVj gS blfy,] mi;qZDr esa ls vuqikrr% vR;Yi gksus ls mi;qZDr fjiksVZ fu‘pk;d ugha dgh tk ldrhA ç‘uxr ‘kjkc dks ‘kjkc lkfcr fd, tkus ls ;g fjiksVZ ,dek= vk/kkj gSa tcfd bu ifjfLFkfr;ksa esa muesa laçek.kd ewY; dk furkar vHkko gS rc fupys U;k;ky;ksa dk vfHk;qDr vkosnd dks voS/k :i ls ‘kjkc dk dCtk j[kus dk nks"kh gksus dk fu"d"kZ fii;ZLr Fkk& &ekuuh loksZPp U;k;ky; }kjk bl ckjs esa xkSaVj ,Mfou fdpZj fo- xksok jkT; ¿1993 lhvkj ,y ts 1485À esa vf/kdfFkr funs‘k ij /;ku ugha fn;k] ;|fi og Lokid fof/k ds funsZ‘k ls gS fd lacaf/kr çkf/kdkjh vko‘;d :i ls leLr vfHkx`ghr ek=k vFkok mlesa ls i;kZIr ek=k uewus ds :i esa fo‘ys"k.k ds fy, HkstsaxsaA 1993 lhvkj ,y ts 1485 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 10½
1. This revision under section 397/401 of the Code of Criminal Procedure ("Code" hereafter) by the accused-applicant is against the judgment dated 16.10.2001 passed by learned Sessions Judge, Shajapur, in Criminal Appeal No. 149/2001 confirming the conviction under section 34(l)(a) M.P. Excise Act and sentence under sub-section (2) thereunder (as amended from 4.8.2000) to RI for one year and fine of Rs.25,000/- with usual default clause.
2. According to prosecution, on 6.6.2001, PSI Vivek Chauhan PW5 along with his associates had gone to village Hajipur with a view to execute arrest warrant of a warrantee. There an informant gave him information that a person was looking for conveyance to transport liquor illegally, therefore he went to the place said to have been occupied by the delinquent. As he reached there with his companions, the delinquent, along with one container, started running. He also left behind some containers. They chased and apprehended him. His identity was discovered as the accused-applicant and the material with him appeared to he liquor hence he was asked by PSI Vivek Chauhan about the license to which he replied in the negative. Accordingly, seizure proceedings were undertaken. In the presence of two panch vide Ex.P-2-C, 288 quarter bottles of Whisky, 350 quarter bottles of plain liquor as also 20 bottles of plain liquor, in all 129 hulk liters placed in different (Kattis) were seized from the accused-applicant. He was also arrested Ex.P-3. He was taken to Police Station Sarangpur and FIR Ex.P-4 was reduced to writing. As the seized material was opined by Excise Sun-Inspector PW 1 G.L. Jonvar to he liquor, the accused was challenged in the Court of Judicial Magistrate First Class, Sarangpur, for offence of section 34(1)(a). (2) M.P. Excise Act ("Act" hereafter). He having abjured his guilt, case went to trial.
3. At the conclusion of the trial, the learned Magistrate held the accused applicant guilty. Since sub-section (2) of section 34 required minimum fine of Rs. 25,000/- to be imposed for the offence under section 34(1)(a) of the Act along with jail sentence and the learned Magistrate was of the view that he not being competent to impose that much fine in view of the provisions of section 29(2) of the Code, he made a reference under section 325 to the Chief Judicial Magistrate vide order dated 24.9.2001 passed in Criminal Case No. 445/2001. The learned Chief Judicial Magistrate, Shajapur, consequently passed judgment dated 10.10.2001 in Criminal Case No.1610/2001 holding the applicant-accused guilty under section 34(1)(a) of the Act, sentenced him under section 34(2) of the Act to RI for one year and fine of Rs. 25,000/- with a direction that default would entail further one year incarceration. The accused-applicant took the matter to Sessions Court in appeal. He did not find favour with the learned Sessions Court. Feeling aggrieved thereby, he has preferred this revision application.
4. The first contention of the learned counsel for the accused-applicant is that the learned trial Magistrate lacked initial jurisdiction, therefore, the conviction in question is liable to be struck down.
5. For appreciating the above argument, it is necessary to have a look of the relevant provisions of law. First of all I would like to quote section 34 of the Act, which reads as under :
"34. Penalty for unlawful manufacturer, transport, possession, sale etc.
(1) Whoever, in contravention of any provision of this Act, or of any rule, notification or order made or issued thereunder, or of any condition of a license permit or pass granted under this Act:
` (a) Manufactures, transports, imports, exports collects or possesses any intoxicant; or
(b) save in the cases provided for in section 38, sells any intoxicant; or
(c) cultivates bhang; or
(d) taps any toddy producing tree/or draws toddy therefrom; or
(e) constructs, or works any distillery, brewery or vintnery: or (1) uses, keeps or has in his possession any material, stil
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