KHANNU Vs. STATE

JUDGEMENT

(1.) ON 28 -7 -1954 at 5 -30 P.M., the Excise Officer Indore raided the house of the petitioners Khannu and his son Hiralal, which is in Raoji Bazar House No. 217, Juni Indore. The petitioners were absent but it is alleged by the prosecution that Rampyari W/O Hiralal was present in the house. In the search that followed the raid, the prosecution have alleged that they recovered country liquor in bottles and petrol tin. The liquor was seized and a Panchnama was drawn up which is produced at Ex. P/1 in this case.

(2.) THE two petitioners along with Rampyari were prosecuted before the Additional City Magistrate, Indore for offence under Section 33 (a) of the Madhya Bharat Excise Act. The learned Magistrate found Rampyari not guilty and acquitted her. He however found the petitioners guilty and convicted and sentenced Khannu to pay a fine of Rs. 30/ - and Hira to pay a fine of Rs. 20/ -. Aggrieved by their conviction and sentence the two petitioners preferred a revision -application before the Sessions Judge, Indore. The learned Additional Sessions -Judge who heard the revision -application has preferred the matter to this Court under Section 438 Criminal Procedure Code, as he is of opinion that the conviction of the accused -petitioners cannot be upheld on the evidence on record.

(3.) I do not find any substance in the first point raised by Mr. Khanwilkar. It has all along been the case of the prosecution that the accused were residing in House No. 217 Raoji Bazar, Indore which was searched on 28 -7 -1954; but it was never suggested by the accused that it was not so. In the question put to the accused it was specifically asked whether his residential house i.e. House No. 217 Raoji Bazar, Indore, was raided and searched by the Police. The accused in their reply did not contend that the said house was not their residential house. They replied that they did not know. The petitioner No. 2 Hiralal further added that he was not present in the house. P.W. 4 Rajendraprasad Jain has stated that he knew the accused No. 1, and he resided in Raoji Bazar Indore. This statement has not been challenged in cross -examination. It is further significant to note that the petitioners had not only not raised this contention before the Sessions Judge but in the petition for revision filed in that Court they stated that their house was occupied by six or eight other persons besides themselves; that they were absent from the house at the time of search; that the lower Court was therefore not right in holding that the liquor was seized from their possession. Under the circumstances the petitioners cannot be allowed to urge now that they are not residing in House No. 217 Raoji Bazar Indore and it was not proved that they occupied the house at the material time.