S. C. AGRAWAL, J. - (1.) THIS reference has been made by the Judicial Magistrate First Class, No. 2 Sriganganagar, under section 318 of the Code of Criminal Procedure, 1973.
(2.) ACCUSED Bhanwar the opposite party in this reference, alongwith accused Maniram, was prosecuted before the Judicial Magistrate in respect of offence under section 19/54 of the Rajasthan Excise Act, 1950, (hereinafter referred to as "the Act. " ). The case of the prosecution was that on February 9, 1978, at about 11. 40 a. m. Shri Dwarka Prasad, (PW 4), Excise Inspector, Shri Ganganagar, made a search of a house in Ward No. 27/28, Shaktinagar, in Shri Ganganagar, and on entering into the said house they found a gunny bag containing 22 bottles containing a liquid in one room. The said bottles were seized and the sample of the liquid contained in the said bottles was taken from four bottles and the said samples on chemical examination were found to contain alcohol. The aforesaid 22 bottles were recovered in the presence of accused Bhanwar. After investigation the police filed a challan against the accused persons, viz. Bhanwar and Maniram. Accused Bhanwar is deaf and dumb and at the time of framing of the charge the judicial Magistrate recorded that the said accused is unable to hear and understand the proceedings because he is deaf and dumb. The charge was therefore, framed through his advocate Shri Bhagirath Singh, who pleaded not guilty. The prosecution, in support of its case examined four witnesses viz. Kishan Lal (PW1), Ram Narain (PW 2), Ram Singh (PW 3), and Dwarka Prasad (PW 4 ). Kishan Lal (PW 1) and Ramnarain (PW 2) are the witnesses of the recovery of the 22 bottles from the house. Premsingh (PW 3) was posted as Jamadar with the Excise Preventive Force and had accompanied Shri Dwarka Prasad (PW 4) Excise Inspector, at the time when the search was conducted in the house and the 22 bottles containing illicit liquor were recovered. While examining accused Bhanwar under section 313 Cr. P. C. the Judicial Magistrate has recorded that accused Bhanwar is deaf and dumb and does not understand anything and therefore, statement on his behalf was given by his advocate.
(3.) THE Judicial Magistrate, by his judgment dated May 3, 1982, acquitted accused Maniram on the ground that accused Maniram was not present in the house at the time when the search was made and the possibility could not be excluded that the liquor was brought in the house during the absence of accused Maniram. According to Judicial Magistrate there was no evidence to connect accused Maniram with the illicit liquor that was recovered from the house and it cannot be said that accused Maniram was aware of the presence of the 22 bottles of liquor in the house. THE Judicial Magistrate, has, however, convicted accused Bhanwar of the offence under section 54 (a) of the Act on the view that accused Bhanwar was present at the time when the search of the house was made and 22 bottles containing illicit liquor were recovered and that from the aforesaid circumstance it is established that accused Bhanwar was in conscious possession of the aforesaid 22 bottles containing illicit liquor. After recording the aforesaid conviction the Judicial Magistrate has made this reference to this Court under section 318 Cr. P. C. on the ground that accused Bhanwar, being deaf and dumb, was unable to understand the proceedings. I have heard the learned Public Prosecutor and Shri B. R. Arora, the learned counsel for the accused. Section 318 Cr. P. C. provides as under: - "if the accused, though not of unsound mind, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial, and in the case of a Court other than a High Court, if such proceedings result in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit. " ;