CHAND GUPTA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(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, 1st 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 along with 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 quantity 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 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 Sec. 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 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.