- (1.) THE petitioner Nathulal and one Manmohan were tried before Assistant Collector and Magistrate, First Class, Ajmer under sec. 54 of the Rajasthan Excise Act, 1950 (herein after referred to as 'the Act'). THE third accused Kanhaiyalal was also tried along with them under section 54/65 of the Act, but he was acquitted.
(2.) THE gist of the offences charged was that they transported 30 bottles of liquor without any licence or permit. THE prosecution case was mainly supprior ted by P.W.9 Hari Singh, whose statement was corroborated by ocular and other documentary evidence. THE learned Magistrate convicted the accused-petitioner Nathulal and co-accused Manmohan under section 54 of the Act and sentenced each of them to one month's simple imprisonment and to pay a fine of Rs. 200/-, in default of payment of which to undergo farther simple imprisonment far a period of two months each. THE third co-accused, namely, Kanhaiyalal' father of Manmohan and father in-law of the accused-petitioner, was acquitted by the learned Magistrate, since the evidence did not established beyond doubt the offence of abetment against him. THE Petitioner and Manmohan preferred an appeal to the court of Sessions Judge, Ajmer, against their conviction and sentence. THE learned Sessions Judge after reappeciation of evidence held both the accused guilty of the charge framed against them. He, however, extended the benefit of section 6 of the probation of Offenders Act to accused Manmohan. THE conviction and sentence recorded by the trial court against the accused-petitioner was maintained. THE accused-petitioner thereupon preferred the present revision petition. 2. Tersely speaking, shorn of all unnecessary details the prosecution case as disclosed at the trial is that on receiving a secret information that liquor was being transported and smuggled, P.W. 9 Harisingh and his party stood ready at the octroi out post Mirshali, Ajmer, on August 16, 1968, to check and apprehend the smugglers. THE accused petitioner and his brother in-law Manmohan came on a Motor cycle No. RJZ-3924 at nearly 4.30, p.m., on August 16, 1968. At that time they were carrying liquor in a bag and a, 'katta' : At the relevant time the petitioner was driving the motor cycle. THE petitioner and the co-accused Man Mohan singh the excise party turned back the motor cycle No. RJ 2 3924 and the excise party chased them in two jeeps After going for little distance accused Man Mohan alignted from the motor cycle near the culvert with the bag and the 'katta' containing the liquor and the petitioner drove away the motor cycle. THE petitioner was chased by the members of the party sitting in jeep No. 109, but he could make good his escape. P.W.9 Harisingh and his associates apprehended Man Mohan, but in the intervening time he engaged himself in breaking the liquor bottles and the container. From the possession of accused Man Mohan a bag. containing seven bottles of liquor intact and 13 broken bottles, were recovered Besides that a plastic container measuring nearly ten bottles of liquor wrapped in a gunny bag, was also seized. Sample of the liquor for analysis, was taken on the spot. THE sample and the seized bottles were sealed on the spot in the presence of the 'motbirs'. THE seizure memo is Ex P/l, which bears the signatures of P.W. 9 Hari Singh and other persons who witnessed the seizure of the articles. THE site plan Ex. P/2 was also prepared. THE sample of the liquor was sent to the Chemical Examiner and Chief Public Analyst, Rajasthan, Jaipur, for analysis. THE report is Ex. P/9 After usual investigation a complaint was filed against three persons, namely, Kanhaiya Lal (acquitted by the trial court), Man Mohan (released by the appellate court on executing the bond under the provisions of the Probation of Offenders Act, 1958) and the petitioner Nathulal. THE petitioner Nathulal, in his statement under sec. 342, Cr.P.C , pleaded ignorance stated that he did not know as to how to drive the motor cycle. He further stated that a false case was foisted against him. The trial court, after scrutinizing, the evidence in detail, observed that there was no reason for not believing the statement of P.W.9 Harisingh The learned Magistrate sought corroboration of the statement of Hari Singh from the statement of other witnesses and held that the prosecution had succeeded in proving that accused Man Mohan and Nathulal transported 30 bottles of liquor from Jaipur side towards Ajmer and they were transporting the same without any authority or permit. He convicted and sentenced both the accused, as mentioned above. The order of conviction and sentence recorded against the accused-petitioner was affirmed in appeal. Hence this revision petition. On behalf of the petitioner Mr. S. N. Bhargava, learned counsel, has raised the following contentions: - (1) that the entire prosecution case is sought to be proved by partisan, professional and interested witnesses. Their evidence is highly discrepant, unreliable and no reliance can be placed on such evidence. In support of his first contention he referred the following cases: - Bhagwan Dayal Piarey Lal vs. The State(l); and Hira Lal vs. State of Haryana (2); (2) that neither the trial court nor the appellate court has considered the vital question, viz., whether the evidence establishes that the Petitioner was in conscious possession of the liquor seized from Man Mohan? The Possibility of Man Mohan transporting the liquor without the knowledge of the petitioner, cannot be ruled out. In support of this contention he has placed reliance on, - Gurdayal Singh vs. State of Rajasthan (3); Maharaj Prithvisinghji Bhimsinghji vs. State of Bombay (now Rajasthan (4). Regarding the first contention the learned counsel is correct in saying that out of 9 witnesses examined by the prosecution P.W 3 Bhawanisingh, PW 6 Jograj, P.W. 7 Girirajsingh and PW. 8 Charansingh ate not eye witnesses of the occurrence. Out of the remaining witnesses P.W. 2 Jwalaprasad did not support the prosecution case and he was declared hostile in the trial court. P.W. 5 Banswarup is a previous convict under section 307, IPC, and ha 1 appeared as witness in 8 or 10 excise cases. Similarly P.W. 1 Lal singh is also a previous convict, though sentenced to pay a fine of Rs. 50/- only, but this witness had also appeared as witness in 25 or 26 excise cases Due to the infirmities noted above in the statements of these three witnesses, none of them can be relied upon to convict the accused-petitioner. Reference may be made to Hira Lal vs. State of Haryana (2). In that cafe, while allowing the appeal preferred by the accused against his conviction under section 165-A, IPC, their Lordships of the Supreme Court laid down the law as under: - "The other two witnesses examined are Amir Singh and Ram Rang. Amir Singh, on his own admission, has appeared as a pro- secution witness four or five times in police cases pertaining to this police station. The evidence of such a witness can hardly carry any value in Court." Discarding the staff ments of the above mentioned seven witnesses do not mean that the prosecution case will collapse on that score alone. Even if there evidence is not taken into consideration, then also the evidence of PW 9 Hari Singh, corroborated by other evidence, as I shall discussed shortly, would be sufficient to support the findings of the courts below. As regards the remaining witness, PW. 9 Hari Singh, it was urged that he is an eye witness arid an investigating officer of the case, and, as such, implicit reliance cannot be placed on his statement. Reliance was placed on Bhagwan Dayal Piarey Lal vs. The State (1). The relevant observations made in that case are as under: - "The practice of investigation being conducted by the same officer, who happens to be an ocular witness, has been looked with disfavour by this Court." This case cannot be said to be of much avail to the defence, because the observa-tions made therein are of general nature. The statement of the investigating officer and the other witnesses were disbelieved by the Allahabad High Court because they made false and improbable statements regarding the injuries caused to the accused by merciless beating and the decision of that case did not turn up only on the point that the eye witness was also an investigating officer. I have carefully gone through the statement of PW. 9 Hari Singh. He has given a forth right straight forward detailed statement. Simply because he is an excise officer, is not enough to discard his statement in the absence of his hostility to the accused-petitioner. Reference may be made to Nathusingh vs. The State of Madhya Pradesh (5) and Prem Ballab vs. The State (Delhi Administration) (6). In the later case Hon'ble Bhagwati, J , speaking for the Court, laid down the law as under: - "There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. It is only out of a sense of caution that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law; if it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the device of bringing punch witnesses. The conviction of the appellants cannot, therefore, be assailed as infirm on the ground that rested merely on the evidence of Mr. Bhanot and Mr. Bhatnagar." Inspite of the searching cross-examination nothing has been brought out in the statement of this witness, so as to doubt the veracity of his statement. His statement stands corroborated by the seizure memo Ex P/l wherein it has been specifically mentioned that the accused-petitioner Nathulal was driving the motor cycle and Man Mohan was sitting behind, while they were transporting the liquor. His statement also stands corroborated by the evidence of P.W. 4 Panna Singh. No doubt due to long lapse of time he made a mistake as to who out of the two accused, was sitting in the front seat and who in the back seat of the vehicle at the time when they came towards the octroi out post, nevertheless be was certain that both Man Mohan and Nathulal were on the motor cycle No. RJZ- 3924 while transporting the liquor, The two courts below have held P.W. 9 Harisingh as reliable witness and I have no reason to hold otherwise. I uphold the concurrent view of the two courts below that the accused-petitioner was driving the motor cycle No RJZ- 3924 on August 16, 1968, at 4 30, p,m at the time when liquor was being transported from Jaipur side towards Ajmer and seeing the raiding party he turned back the vehicle and after alighting Man Mohan (co-accused) from the vehicle with the bag and 'katta' made good his escape. Transportation of liquor does include the element of possession. Before dealing with the second contention, I shall read the relevant portions of sections 54 and 68 of the Act, which are necessary for the decision of this case : "54 Penalty for unlawful import, export, transport, manufacture, possession, etc. - Whoever, in contravention of this Act or of any rule, or order made or of any licence, permit or pass granted, thereunder - (a) imports, exports, transport, manufaotnres, collects, sells or possesses any excisable article; or (b) xxx (c) xxx (d) xxx (e) xxx (f) xxx (g) xxx. Shall be punishable with imprisonment for a term which may extend to two years with fine which may extend to two thousand rupees. Provided that if a person is so found in possession of a workable still for the manufacture of any excisable article he shall be punished with the minimum sentence of imprisonment for six months and fine of two hundred rupees. "68. Presumption as to commission of offence in certain cases, - In every prosecution for any offence punishable under this Act, it shall be presumed without further evidence untill the contrary is proved, that the accused person has committed such offence in respect of - (a) any excisable article, or (b) xxx (c) xxx. I am unable to agree to the second contention of the learned counsel for the petitioner that petitioner was not in conscious possession of the liquor, while driving the motor cycle No RJZ- 3924 on Jaipur Ajmer route on 16 8 68 at 4 30 p.m. Acceptance of the contention of the learned counsel for the petitioner that accused Man Mohan might have demanded a lift and Nathulal petitioner might have given him a lift without knowing anything about the contents of the articles carried by Man Mohan, will amount to chasing bare possibilities of doubt. Neither mere possibility, nor remote probabilities, nor mere vague doubts" which are not reasonable, can, without danger to the administration of justice' be the foundation of discrediting reliable and cogent evidence. Carrying of such a large quantity of liquor measuring nearly 30 bottles was not possible without each of them taking the other in confidence. The facts of the case are squarely covered by the ratio-decendi of the Supreme Court case Ashiq Miyan V. State of Madhya Pradesh (7). The raiding party in that case seized opium from the court yard of the accused of that case. That house was occupied by more than one person and the plea of the accused was that each of them was living separately in the house and that they were not present at the time of recovery and that it was possible, for some outsider, to have thrown the opium recovered, into the court-yard of the house. Their Lordship of the Supreme Court repelling the above contention, observed as under : - "The further finding is that the presence of such a large quantity of opium could not have been possible without each of them, taking other, into confidence. These findings have been accepted, by the High Court, and we are satisfied that there is no legal error, or infirmity, committed by any of the Courts, in arriving at that conclusion. Therefore, the two contentions noted above, will have to be rejected." In the statement under sec. 342, Cr.P.C., the petitioner totally denied having anything to do with the transportation of the liquor. He went to the extent of saying that he did not know as to how to drive the motor-cycle He never put forward the case that the bag and the 'katta' later on seized by the excise inspector belonged to the co-accused Man Mohan and the petitioner knew nothing about their contents. The act of turning back the motor cycle No. R.J Z. 3924 at the sight of the excise staff and making good his escape is a circumstance, which in the absence of any plausible explanation, can be taken into consideration against the petitioner to show his mens rea. This fact by itself does not inevitably lead to the inference of guilt, but can certainly be considered a very useful corroborative peace of evidence, if there is other evidence to connect the accused with the crime, as we have in the case on hand. The scheme of the Rajasthan Excise Act is to prohibit possession and transportation of liquor without permit issued under sec. 5 of the Act. The State Government has prescribed the quantity of retail sale of country liquor as 2 25 liters, by notification No. F. 1(87) E. & T/59J dated 30-11-1961, published in Rajasthan Government Gazette part IV C dated 28-12-1961. Section 19 of the Act provides that no person not being licensed to manufacture, cultivate or sell any excisable article, shall have in his possession any quantity of such article in excess of such quantity, as the State Government has under sec. 5 declared to be the limit of sale by retail A close reading of the above mentioned notification issued under sec. 5 with sec. 19 of the Act reveals that the accused petitioner could possess only 2.25 liters of country liquor. Admittedly the article alleged to have been recovered from the possession of the accused, is country liquor and the quantity exceed much above the prescribed limit. No doubt strictly speaking there is no evidence as to whether both the accused Man Mohan and the petitioner started together from the same place or one met the other in the way, but it does not mean that prosecution must collapse on this count. I find considerable force in the contention of the learned counsel Mr. Bhansali, appearing on behalf of the State, that in most cases of unauthorised possession and transportation of liquor the prosecution will never be able to prove that the accused was knowingly in pose-ssion of liquor and that the burden to prove that he was not in conscious possession is upon the accused by virtue of sec.68 of the Act. This section seems to be provided with the assumption that if the accused had something to do with the article regarding which he is being prosecuted in that situation the law will presume him to be guilty. In other words once it is proved that the accused had something to do with the import, export, transport, manufacture, sell or possession of excisable article, it is for him to prove satisfactorily that he has not knowingly done so. In my humble opinion Sec. 68 of the Act will become otiose if it were held that the prosecution must prove the conscious possession before it can take resort to sec. 68. As already stated by me above, sec. 68 proceeds on the assumption that a person who is in any way concerned with the excisable article, as mentioned under Section 54(a) of the Act, he must be presumed to have committed the offence charged. The practical difficulty of the prosecution to prove something which is exclusively within the knowledge of the accused has persuaded the legislature to consider that if the onus is placed on the prosecution, the object of the Act would be frustrated. By enacting sec. 68 of the Act the legislature has manifested its intention that an antisocial adventurer cannot claim for his injurious activities larger regard than for the defence of the society itself.
(3.) MR. S. N. Bhargava, learned counsel for the petitioner, placed strong reliance on Gurdayal Singh vs. State of Rajasthan (3) and Maharaja Prithvi Singhji Bhimsinghji vs. State of Bombay (now Rajasthan) (4). The decision of these cases were rendered on the peculiar facts and circumstances of those cases which are not similar to the facts and circumstances of the present case, as such, these cases are also of no avail to the accused-petitioner. The jurisdiction of this Court in exercise of revisional powers is highly restricted. It is not required to reappraise the evidence The jurisdiction under section 439, Cr.P.C., is normally required to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. I find to reason to take a different view of the evidence than taken by the two courts below. Now remains the question of sentence imposed upon the accused-petitioner. The learned counsel for the accused petitioner has urged that the occurrence is of the year 1968 and a period of more than eight years has elapsed in between the date of the commission of the offence and hearing of this revision petition and the accused-petitioner has served the sentence for a period of eleven days, and it would not be in the interest of justice to send him back to the Jail. The circumstances urged by the counsel for the accused petitioner can be validly taken into consideration as extenuating circumstances for reducing the sentence. In view of the fact that the petitioner has already undergone a part of the sentence of imprisonment for a period of 11 days out of the short term of Sentence of one month imposed on him, and sending him to jail back to undergo the remaining period of sentence after so long a time of his release on bail by this Court is not likely to have any reformative effect upon him, I consider it proper to reduce the substantive sentence of imprisonment awarded to him to the period of sentence of imprisonment already undergone by him and enhance the sentence of fine in lieu of the reduction of sentence of imprisonment from Rs. 200/- to Rs. 1000/- (one thousand). In default of payment of fine the petitioner will undergo simple imprisonment for a period of two months. The revision petition is partly allowed as indicated above. ;