SHANKER GHEESA RAJPUT Vs. STATE

JUDGEMENT

(1.) THE applicant was convicted by the learned Magistrate, First Class, Indore under Section 34 -A of the Madhya Pradesh Excise Act for the possession of forty bottles of illicit distilled liquor, which he was taking with him on his bicycle in a motor -wheel tube kept on the carrier. He was sentenced to rigorous imprisonment for six months, but on appeal, to the Sessions Judge, it was reduced to rigorous imprisonment for three months. He has come up in revision urging that the judgments of the lower Courts have been vitiated by a number of irregularities and has prayed that the conviction and sentence should be set aside.

(2.) THE facts found by the lower Courts are that some time on the evening of 28th August 1959, the applicant was at or near a paan -shop run by Kallu in a village called Badi Gwal Toli on the outskirts of the city of Indore. Two Chowkidare, who were on patrol duty, arrested him as they suspected, from the smell, that a motor -wheel tube taken by him on his cycle carrier, was full of illicit distilled liquor. They marched him to the police station and a case was started. The tube contained the large quantity of forty bottles of illicit liquor. But the defence, as ultimately given in the examination under Section 342, Criminal Procedure Code, was that the cycle was not in the hands of the accused, but was stood on the ground a few paces away from where he was at the moment of his arrest. Thus he was not in possession of the liquor and in fact did Dot know what the tube contained. The learned Magistrate accepted the evidence of chowkidars that the cycle was of the applicant, and he was actually holding it when he was arrested by them. This is a plain finding of fact.

(3.) THE next alleged irregularity is the question under Section 242, Criminal Procedure , where the date of offence given is 29 -8 -1959 whereas the real date was 28 -0 -1959. Question - "The witnesses Bhagirath and Deogiraingh state that on 29 -8 -1959 at 7 or 8 P. M., you were standing at the shop of Kallu near the Bam Mandir and on the back of your cycle was tied a motor tube which was found to contain forty bottles of illicit distilled liquor." Answer - "Yes, this is correct. The cycle was four paces away from me and I was eating paan.