Prashant Kumar Agarwal, J. - (1.) Heard learned counsel for the parties. The accused -petitioner has filed this criminal misc. petition under Sec. 482 Cr.P.C. against the order dt. 9.11.2010 passed by the Additional Sessions Judge, Ramganj Mandi, District Kota in Criminal Revision Petition No. 8/2010 whereby the learned Revisional Court by dismissing the revision petition filed by the petitioner upheld and affirmed the order dt. 3.3.2010 passed by the Judicial Magistrate, Ramganjmandi, Kota in Criminal Case No. 89/2010 whereby the learned trial Court took cognizance against the petitioner for the offence under Sec. 19/54 of the Rajasthan Excise Act, 1956 (hereinafter referred to as the Act).
(2.) Brief relevant facts for the disposal of this petition are that F.I.R. No. 89/2009 for the aforesaid offence came to be registered against the petitioner at Police Station Morak, District Kota on 6.5.2009 on the premise that huge quantity of illicit liquor was recovered from a house belonging to father of the petitioner and just before aforesaid house was raided by the police party petitioner was standing outside it and he fled away from there as soon as he saw the police party. It is an admitted fact that the liquor in question was recovered and seized in absence of the petitioner. Although initially involvement of the petitioner was found in the incident, but during the course of further investigation it was found that at the relevant time the aforesaid house was in the possession of co -accused -Shri Mukesh Bairwa as a tenant from father of petitioner on the basis of a rent deed dt. 13.11.2008. On the basis of this finding, petitioner was exonerated by the Investigating Agency itself and charge -sheet for the aforesaid offence was filed only against Shri Mukesh Bairwa, but learned trial Court disagreeing with the conclusion of the Investigating Agency vide impugned order dt. 3.3.2010 took cognizance against petitioner also, which was challenged by way of the aforesaid revision petition but without any success.
(3.) It was submitted on behalf of the petitioner that even if for the sake of arguments the allegations levelled in the F.I.R. and the evidence collected during investigation is taken at its face value and treated to be true and correct in entirety even then at the most it is revealed that just before aforesaid house was raided and recovery of liquor was made, petitioner was standing outside the house and he fled away from there on seeing the raiding party, but merely by that reason even prima facie it cannot be said that the petitioner was in conscious possession or even possession of the recovered liquor. It was further submitted that for an offence to be made out under Sec. 19/54 of the Act, it is to be shown that the illicit liquor was found in possession of the accused, but in the present case the most essential ingredient to constitute the aforesaid offence is completely absent. It was also submitted that when Investigating Agency on the basis of evidence collected during investigation has specifically found that at the relevant time aforesaid house was in possession of co -accused -Shri Mukesh Bairwa as a tenant, there was no question of possession on the part of the petitioner but the learned trial Court merely on the basis of presence of the petitioner outside the house just before the house was raided and recovery was made, has taken cognizance against him and learned Revisional Court also did not consider the question of possession in a correct perspective.;