RAMESH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) APPLICANT Ramesh, non -applicant no. 2 Jaswant Singh and non -applicant no. 3, Lachhman, were discharged by the Judicial Magistrate First Class Mungaoli (Camp Chanderi) in Criminal Case No. 98/81 (State through Chanderi Police v. Jaswant Singh and others) instituted on a charge -sheet filed by the Police. According to the charge -sheet and the connected papers, the accused had been transporting amongst other things 130 bags of Mahua. In passing, I am not referring to the other articles seized in the case because they are not material for the purposes of the present revision proceeding. The charge -sheet alleged that the offence was punishable under Section 36 of the M. P. Excise Act, 1915. The learned Magistrate held that the papers disclosed an offence made up a breach of Rule 4 (2) of the Mahua Rules punishable under Section 37 of the M. P. Excise Act, and not any offence punishable under Section 36 of the M. P Excise Act. It was further held that the accused could not be charged under Section 37 of the M. P. Excise Act as well, because the prosecution for that offence has to be made subject to the limitations contained in subsection (1) of 61 of the M. P. Excise Act, 1915. Accordingly, the learned Magistrate discharged the three accused persons. The aggrieved State filed a revision against the impugned order. The learned Additional Session Judge, Ashok Nagar allowed the revision. 9/22) by his order dated 7 -3 -1982. The learned Additional Sessions Judge dealt with the matter in a most perfunctory manner. All that he said in support of his order was as follows : The learned Addl. Sessions Judge disposed of the learned trial Magistrate's finding about the applicability of the Section 37 of the M. P. Excise Act by making a similar assertion J

(2.) NOW , Section 36 of the M. P. Excice Act, 1915, runs as follows; 36. Penalty for illegal possession. - -Whoever, without lawful authority, has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected knowing the prescribed; duty not to have been paid thereon, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both. (Emphasis supplied.)

(3.) SUB -rule (2) of Rule 4 of the Madhya Pradesh Mahua Rules, 1959, says that no person or head of household on his behalf or on behalf of the members of his household shall in aggregate transport or sell or buy or have in his possession mahua exceeding five kilogram in weight except under the authority and subject to the conditions of a licence, permit or pass granted by or an authorised officer. According to the learned Magistrate there was a breach of Rule 4 of the M. P. Mahua Rules. 1959, punishable under Section 37 of the M. P. Excice Act, 1915 However, he was of the view that the accused could not be charged even in respect of this breach in the light of the provisions of Section 61 of the M. P. Excise Act, 1915. Clause (a) of sub -section (1) of Section 61 runs as follows :