Chand Gupta &
Ors. Vs. State of H.P. [2009] INSC 989 (8 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 202 OF 2002 Chand
Gupta and Ors. ......Appellants Versus State of Himachal Pradesh
.......Respondent
Dr. ARIJIT PASAYAT, J
1.
Challenge
in this appeal is to the judgment of a learned Single Judge of Himachal Pradesh
High Court upholding the conviction of the appellants for offence punishable
under Section 61(1)(a) of the Punjab Excise Act, 1914 (in short the `Act') as
applicable to the State of Punjab and the sentence of imprisonment for three
years and a fine of Rs.2,000/- with default stipulation.
2.
The
Judicial Magistrate, Ist Class, Solan recorded the conviction as noted above
and in appeal, learned Additional Sessions Judge, Solan confirmed the judgment
and order of the trial Court. A revision petition was filed before the High
Court which dismissed the same by the impugned order.
3.
Background
facts as noted by the High Court are as follows:
In the year 1992
accused Chand Gupta was the owner of M/s Shiva Enterprises, Solan dealing in
L-2 and L-14 liquor business. Accused Kashmir Singh was the Salesman of the
Firm, whereas accused Jagdish Chander was the supervisor looking after the
godowns of the concern located at Solan. On 6.6.1992 at about 1.00 p.m. Shri
Harbhajan Singh, Deputy Superintendent of Police, Enforcement, South Zone,
Shimla alongwith Om Parkash Sharma, Excise and Taxation Officer (P.W.-1),
Jagdish Raj Punj, Excise and Taxation Inspector [P.W.8), Mangat Ram, Sub
Inspector [P.W.-9] and other police staff officials were on special checking
when they received a secret information that in the godowns of M/s Shiva
Enterprises at Solan a large quantity of liquor was concealed without valid
permit and pass. On the basis of the said information the godowns of M/s Shiv
Enterprises were checked by the raiding party where accused Kashmir Singh,
Salesman and accused Jagdish Chander, Supervisor, were present. Accused Kashmir
Singh handed over the keys of five godowns to the raiding party and on checking
the godowns in the presence of both the accused persons, large quantity of
liquor was found concealed by the accused without permit, in excess of the
quality of liquor authorised by the competent authority under the permit. It
was also the case of the prosecution that on checking the sale and stock
register for the year 1992-93, 17 boxes of DM XXX Rum, 21 boxes of Bison XXX
Rum, 2 bottles and 7 boxes of half bottles and 17 boxes of Old Taren whisky
along with 18 Nips were not entered in the register after 3.6.1997. Harbhajan
Singh, Deputy Superintendent of Police, sent Ruqua Ext. PW-9/B to the Station
House Officer, Police Station, Enforcement, South Zone, Shimla, on the basis of
which F.I.R. Ex.PW-5/B came to be registered by Ram Rattan, Station House
Officer. The investigation of the case was conducted by Shri Mangat Ram,
Inspector Enforcement (PW-9) who took into possession the seized bottles of
liquor vide recovery memo Ext. PW-3/A.
Licence of the liquor
vend Ext. PW-6/A was also taken into possession. He prepared site map Ext.
PW-9/C. Statements of the witnesses were recorded by him and on receipt of the
report of the Chemical Analyser Ext.PW-9/E 3 the Police Report under Section
173 of the Code of Criminal Procedure, 1973 (in short the `Code') was filed
before the learned trial Magistrate against the accused persons for commission
of offence punishable under Section 61(1)(a) of the Act. The learned trial
Magistrate charged the accused for the commission of the alleged offence. Since
the accused pleaded not guilty, the trial was held. In trial, the trial Court
convicted the appellant. Appeal was dismissed.
The appellant No.1
admitted before the High Court that he was owner of M/s Shiva Enterprises in
L-2 and L-14 liquor business. Liquor found in the godown by the raiding party
in excess of authorized quantity of liquor was meant for transportation to
Dhabota Vend and the consignment could not be transported due to some agitation
in that area and, therefore, was unloaded in the godown at Solan. It was also
submitted that appellant No.1 was not present at the spot when the raiding
party conducted raid of his godown and seized the excess quantity of liquor.
The accused appellant Jagdish Chander admitted his engagement as Supervisor. He
admitted the checking of the godowns by the raiding party. Similar stand as
that of Accused No.1 was taken by accused Jagdish Chander. Accused Kashmir Singh
admitted his engagement as a Salesman. He admitted checking of the godown by
the raiding party.
Basic stand of the
appellant is that the omission to cancel permit under Section 65 (c) of the Act
was not unlawful possession of liquor under Section 61 of the Act. With
reference to Section 65 (c) of the Act it is submitted that if a valid holder
of a license, permit or pass, as granted under the Act willfully breaches or
omits to abide by any of the conditions in such license, permit or pass such
holder of the permit will be punishable with such fine as extendible to an
amount of Rs.5,000/-. It was submitted that appellants have improperly omitted
to cancel the pass for the transport of liquor from their licensed premises
over to the Vend at Dhabota within a reasonable period of time. Such technical
omission as understood under Section 65 (c) of the Act is further established
from a perusal of the statement by the prosecution witnesses. It was submitted
that at the most the appellants are liable for conviction under Section 65 (c)
relating to minor offence as it was established that the appellants have
improperly omitted to cancel their transport permit for a consignment of liquor
not transported. It is also submitted that the Sections 4 and 6 of Probation of
Offenders Act, 1958 (in short the `Probation Act') or in any event Section 360
and Section 361 of the Code have clear application to the facts of the case.
4.
Therefore
it is submitted that the explanation appended to Section 65 (c) is applicable
and not Section 61(1)(a).
5.
Learned
counsel for the respondent-State on the other hand supported the judgment of
the High Court.
6.
Sections
61 and 65 so far as relevant reads as follows:
"61. Penalty for
unlawful import, export, transport, manufacture, possession, etc.-- (1)
Whoever, in contravention of any section of this Act or of any rule,
notification issued or given thereunder or order made, or of any license,
permit or pass granted under this Act-- (a) imports, exports, transports,
manufactures, collects, or possesses any intoxicant; or (b) constructs or works
any distillery or brewery; or (c) uses, keeps or has in his possession any
material still, utensils, implement or apparatus whatsoever for the purpose of
manufacturing any [intoxicant] other than tari;
shall be punishable
for every such offence with imprisonment for a term which may extend to three
years and with fine upto two thousand rupees and if found in possession of a
working still for the manufacture of any intoxicant, shall be punishable with
minimum sentence of six month's imprisonment and fine of two hundred rupees
....."
6 "65. Penalty
for certain acts by licensee or his servant.-- Whoever, being the holder of a
license, permit or pass granted under this Act, or being in the employ of such
holder or acting on his behalf:- (a) fails wilfully to produce such license,
permit or pass on the demand of any excise officer or of any other officer duly
empowered to make such demand; or (b) in any case not provided for in section
61 wilfully contravenes any rule made under section 58 or section 59; or (c)
wilfully does or omits to do anything in breach of any of the conditions of the
license, permit or pass not otherwise provided for in this Act; shall be
punishable in case (a) with fine which may extend to two hundred rupees, and in
case (b) or case (c) with fine which may extend to five hundred rupees."
7.
The
factual position needs to be noted. The date of occurrence is 6.6.1992. The
pass was issued on 30.3.1992. It is submitted that the appellants were not in
any unlawful possession as stated in Section 61(1)(a) and there was merely a
default of irregularity as provided in Section 65 (c) of the Act. Additionally,
it is submitted that the sentence is severe and the Probation Act can be made
applicable. The permit or pass was issued for the period from 4.6.1992 to
6.6.1992. The accused appellants were in possession of unauthorized quantity of
liquor in the godown at Solan.
Section 65 prescribes
punishment for failing to produce license, permit or pass on demand of any
excise officer or of any other officer duly empowered to make such demand, on
contravention of any rules framed under Section 58 or Section 59 in any case
not provided for in Section 61 of the Act or breach of any conditions of the
license, permit or pass not otherwise provided for in the Act. Undisputedly,
PWs 1, 8 and 9 i.e. officials found when the godowns of the accused appellant
No.1 was raided by them seized bottles of liquor were found in possession of
the accused in excess of the prescribed quantity of liquor authorized by the
department under the permit granted to the lessee. The benefit of Probation Act
was denied as huge quantity of liquor was kept in the godown without any
permit. A minimum sentence is provided in Section 61. Considering the nature of
the accusations, the High Court has rightly held that the Probation Act has no
application. That being so, there is no merit in this appeal which is
accordingly dismissed.
........................................J.
(Dr. ARIJIT PASAYAT)
.........................................J.
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