Khalek Shaikh Vs. State of West Bengal  Insc
553 (31 August 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP (Crl.) No. 2282 of 2006) ARIJIT PASAYAT, J.
was convicted for alleged commission of offence punishable under Section 46A(a)(ii)
of the Bengal Excise Act, 1909 (in short the 'Act'). According to the
prosecution he was in unlawful possession of 40 litres of illicit distilled
trial found him guilty and convicted him in terms of Section 46A(a)(ii) and
sentenced to suffer rigorous imprisonment for three years and to pay a fine of
Rs.500/- with default stipulation.
said order of the learned Judicial Magistrate, 1st Court at Diamond Harbour, 24
Parganas (South) was maintained by learned Additional Sessions Judge, 6th
Court, Alipore, 24 Parganas (South). The High Court also did not find any
substance in the revision filed before it and dismissed the same.
background facts leading to prosecution and culminating in conviction
essentially are as follows:
17.01.1996 at about 10.30
A.M the present
appellant was apprehended on Falta Road
near Fatehpur market for unlawful possession of 40 litres of illicit distilled
liquor in a polythene jar. He was arrested and the article was seized after observing
formalities followed by taking sample in a separate bottle which was forwarded
to the chemical examiner. The analysis report is in the positive with the
finding that the liquid contained 61.22 alcohol which is of illicit origin. The
Government suffered a loss of Rs.1400/- toward revenue.
witnesses on behalf of the prosecution while five witnesses on behalf of the defence
were examined, and after considering the facts, circumstances and materials on
record, the trial Court found the appellant guilty under Section 46A (a)(ii) of
the Act, convicted him there under and sentenced him to suffer Rigorous
Imprisonment for three years and to pay fine of Rs.500/- in default to R.I. for
one month which was affirmed as stated supra by the First Appellate Court and
in revision petition before the High Court was dismissed.
counsel for the appellant submitted that no independent witness was examined
and, therefore, the conviction is per se unsustainable. It is also submitted
that the conviction in terms of Section 46A(a)(ii) is uncalled for and at the
most the same could be in terms of Section 46A(a)(i) of the Act. It is also
submitted that the sentence imposed is high, beyond the limit prescribed by the
statute and, therefore, are unsustainable.
counsel for the State, supported the order.
first issue relates to non-examination of independent witnesses. The courts
below analysed in detail the factual position and came to hold as to why it was
not possible for the prosecution to examine any independent witness. There is
no prohibition on a conviction being recorded on the basis of the testimony of
official witnesses if they are found to be trustworthy.
to the question about the applicable provision, the provision itself needs to
be noted. The same reads as follows:
unlawful manufacture of spirit or transport etc., of intoxicating drug,
cultivation of hemp, use and possession of materials for manufacture of spirit
and intoxicating drug. - Whoever in contravention of this Act or of any rule,
notification or order made, issued or given, or a license, permit or pass
granted under this Act, -
spirit or intoxicating drug other than bakhar or cultivates hemp plant
(Cannabis sativa L.) or; (from which an intoxicating drug can be manufactured
for produced), or
uses, keeps or
has in his possession any material, still, utensils, implements or apparatus
whatsoever for the purpose mentioned in clause (a), or (c) imports, exports,
transports, possesses or sells spirit or intoxicating drug other than bakhar,
for the purpose of sale, or;
distillery or brewery, or
distillery or brewery, or warehouse,
sells any portion of hemp plant (Cannabis sativa L.) from which an intoxicating
drug may be manufactured or produced.
In the case of
an offence under clause (c) or clause (f), when the value of the spirit,
intoxicating drug or hemp plant (Connabis sativa L.) from which an intoxicating
drug can be manufactured or produced is less than two thousand rupees, with
imprisonment for a term which may extend to two years and with fine:
that in the absence of special and adequate reasons to the contrary to be
recorded in the judgment of the court, such imprisonment shall not be:-
for the first
offence, for less than one month and
for the second
and for every subsequent offence, for less than three months;
in any other
case, with imprisonment for a term which may extend to five years (but shall
not be for less than six months) and with fine:
that for special and adequate reasons to be recorded in the judgment of the
court, such imprisonment may be for less than six months but shall not be for
less than three months.]"
reading of the provision makes it clear that separate punishments are provided.
First part relates to offences under Clause (c) or Clause (f) as the case may
be, when the value of the spirit, intoxicating drug or hemp plant is less than
Rs.2,000/-, and for these cases the maximum imprisonment is two years with
fine. Second part is in the nature of a residuary provision and relates to
cases not covered by clauses (c) or (f) within the value of Rs.2,000/-. If the
value of the contraband article is more than Rs.2,000/- the second part will be
applicable, even if the case is covered by clause (c) or (f). This is clear
from the expression used "in any other case".
proviso permits the court to reduce the sentence below the prescribed minimum
but it shall be only for special and adequate reasons to be recorded in the
judgment. In the instant case though no special or adequate reason has been
indicated to reduce the sentence, the courts below proceeded on the basis as if
it is covered by alleged offence is covered by Section 46A(a)(ii).
is no dispute and in fact the courts below have proceeded as if the offence
committed by the accused related to "possession". Clause (a) relates
in this case do not relate to "manufacture". That being so Section
46A(a)(ii) had no application and on the other hand the applicable provision is
Section 46A(a)(i) of the Act.
conviction is accordingly altered. The sentence which can be imposed for the
said offence is maximum two years with fine. Considering the quantum of illicit
distillery liquor seized, in our considered view five months rigorous
imprisonment would meet the ends of justice.
appeal is allowed to the aforesaid extent.