NANHEY LAL Vs. STATE OF U P

JUDGEMENT

(1.) THE applicant was convicted under Section 60 (1) of U. P. Excise Act (in short the Act) and was sentenced to R. I. for a period of six months and a fine of Rs. 200(0/, in default of payment of fine he was ordered to undergo R. I. for further period of six months, by Additional Munsif Magistrate, Haldwani on 15-11-1980, in Criminal case No. 1333 of 1980. THE Magistrate also passed an order under sub-section (e) of Section 72 of the Act, confiscating the Ambassador Car No. USR 5969. He filed the appeal before the Sessions Judge, Nainital, who dismissed the same by judgment and order dated 1st February, 1982 affirming the conviction of the applicant and also confiscation of the Car. He, however, set aside the order regarding imposition of fine of Rs. 2000/- under Section 60 (1) the Act. Hence this revision.

(2.) THE material facts giving rise to this revision are these ; according to prosecution on 20-11-1978 at about 10.15 P. M., Nanhey, the applicant, owner and driver of ambassador Car No. USR 5969, was found carrying 144 bottles of country made liquors at Mohalla Dharampura, Haldwani, District Nainital, where prohibition was on force during that period. THE prosecution examined five witnesses in support of the case PW 1 P. D. Malik, Excise Inspector, and PW 3 Krishna Kumar, Excise; Constable, are the witnesses of fact and it is on their testimony that the applicant was convicted. Two other witnesses are formal viz., Head Moharrir Gopal Datt and Shiv Singh, who were called as Court witnesses to prove certain papers.

(3.) THE facts of the case are almost admitted. It is admitted that during the year in question or on the relevant date i.e. 20-11-1978, there was complete prohibition in the district of Naiaital. It is also admitted by the applicant that 144 country liquor bottels were recovered from his taxi at 10.15 P. M. His version is that the same belonged to the passengers which has not been believed by the two courts below. His stand was falsified by DW 2, Shyamlal, who deposed that he was travelling in the taxi and stated that in the taxi nothing incriminating was found. Regarding the testimony of DW 1 that the permit of the taxi was for Kumaon region only, is not in question, inasmuch as it is not the case of the prosecution that the bottles of country made liquor were imported from Bareilly. Lal Kunwa is in district Nainital, on way to Bareilly and the name of the road, is Bareilly Road, which does not mean that the liquor in question was being brought fr?m Bareilly. In fact learned counsel for the applicant did not raise any objection on the question of facts. He has placed reliance on two authorities of the Supreme Court and contended that the whole trial being illegal, as the procedure laid down was not followed and so his client should be acquitted.