Decided on November 23,1970

Makhan Chandra Sen Appellant
STATE, Respondents


K.V.RATHNAM, J. - (1.) ONE Makhan Chandra Sen, the accused in C. R. case 476 of 63 on the file of 1st Class Magistrate, Sadar is the revision petitioner. He is convicted by the trial court under Section 46(a) of the Bengal Excise Act and sentenced to pay a fine of Rs. 100/ - in default to undergo rigorous imprisonment for 15 days. His appeal 96 of 1963 was dismissed by the Addl. Sessions Judge, Tripura confirming the conviction and sentence passed by the trial court.
(2.) BRIEFLY stated, the case of the prosecution is that at about 8 p.m. on 20th August, 1963, the accused Makhan Chandra Sen was found coming towards his shop on a cycle carrying two packets covered with gunny bags. Kalidas Deb Barma, the Inspector of Excise, who along with his excise guard was keeping watch on the Maharajganj Bazar Road, stopped the accused. Thereupon the accused attempted to destroy the articles which he was carrying and had actually broken one bottle alleged to contain liquor. The Excise Inspector (P.W. 1) seized the gunny bag and found therein two bottles and on examination he found the bottles to contain 1.300 M. L. and 1.500 M. L. of illicit liquor. In the presence of witnesses, P.W. 1 recovered the two bottles, the gunny bags, the broken bottle and the cycle under Ext. P -1. As the accused failed to produce a licence for carrying the liquor he was arrested and subsequently prosecuted for an offence punishable under Section 46(a) of the Bengal Excise Act. In support of the prosecution case, 4 witnesses are examined of whom P.W. 1 is the Excise Inspector. P.Ws. 2 and 3 are the Jamadar and guard in the Excise Department while P.W. 4 is one Kamini Debnath, a person dealing in fuel. The accused pleaded that the prosecution case is false and that he has not committed any offence. The learned trial Magistrate finding that there is nothing to disbelieve the prosecution case and that the evidence of the prosecution witness remained unimpeached, found the accused guilty for an offence punishable under Section 46(a) of the Bengal Excise Act for carrying contraband liquor without a licence and sentenced him to pay fine of Rs. 100/ - in default to undergo R.I. for 15 days. Observing that the cycle is liable for confiscation under Section 63 of the Bengal Excise Act, the learned Magistrate ordered the same to be returned to the accused on payment of further fine of Rs. 50/ -. On appeal, the learned Addl. Sessions Judge by his Judgement dated 30.11.1966 confirmed the conviction and sentence passed by the trial court. Hence the accused has come up to this court in revision.
(3.) AS Shri N.N. Dasgupta, Advocate who filed this criminal revision petition had died and as the accused had not engaged any other Advocate, on 21st October, 1970 a notice was issued to the accused that his revision petition would be taken up for hearing on 6th November, 1970. The said notice was served on the accused on 27.10.1970, but he has not chosen to take any steps to engage any lawyer nor has he appeared in this court to argue his case in person. However, the learned Govt. Advocate has taken me through the records and advanced arguments. The finding of fact arrived at by both the courts below is that on 20th August, 1963 at about 8 p.m. the accused was found coming on a cycle bringing along with him 3 bottles and 2 tins kept in gunny bags and that on seeing the Excise Inspector he attempted to destroy the said articles and had actually broken one bottle and that P.W. 1 seized all the articles and that two bottles were found to contain illicit liquor. It is true, the revisional jurisdiction conferred on this court under Section 439, Criminal Procedure Code is not to be lightly exercised. However, it could be exercised in exceptional cases where the interests of public justice require for the correction of a manifest illegality or the prevention of gross miscarriage of justice. In the instant case out of 4 witnesses examined, P.W. 2 and P.W. 3 who were examined on 20.6.1964, were not cross -examined as the advocate for the accused was absent on that day and as the accused expressed his inability to cross -examine them. As such the observation of the trial court that their testimony remained unimpeached cannot be accepted. It may be stated here that on 1.7.1964 the accused has put in an application in the trial court for recalling those 2 witnesses for cross -examination, but the trial court dismissed that application observing that on 20.6.1964 on which date those 2 witnesses were examined, the accused did not file any application for adjournment. When this aspect was brought to the notice of the lower appellate court, the learned Addl. Sessions Judge held that the trial court was justified in refusing to recall the 2 witnesses. I find myself unable to agree with the reasoning given by the courts below on this aspect. When the evidence of P.Ws. 2 and 3 was not at all tested in cross -examination the trial court ought not have placed reliance on their evidence particularly having refused an opportunity to the accused to cross -examine them. The procedure adopted in that regard has certainly caused prejudice to the accused resulting in gross miscarriage of justice. Learned Govt. Advocate while conceding the same, stated that the case may be sent back to the trial court for fresh trial to enable the accused to cross -examine P.Ws. 2 and 3, but considering the long lapse of time and the view I take on the merits of the case, I find it unnecessary to order a retrial as suggested by the learned Govt. Advocate.;

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