ALLA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner was convicted under section 61(1)(a) of the Excise Act by Judicial Magistrate Ist Class, Ludhiana and sentenced to undergo rigorous imprisonment for a period of 3 months and to pay a fine of Rs. 500/ -. Rigorous imprisonment in default of payment of fine was also awarded. The petitioner filed appeal which was heard by the Additional Sessions Judge, Ludhiana. He did not find any merit in the appeal and dismissed the same. Feeling dissatisfied the petitioner has come to this Court in revision.

(2.) THE prosecution story in brief is that on 5th April, 1979 A.S.I. Dalip Singh apprehended the petitioner while he was carrying tin Exhibit P. 1 which contained illicit liquor. Sample was separated from the contents of the tin. The remaining contents were transferred to bottles Exhibits P. 2 to P. 5. The samples and the bottles were separately sealed. A.S.I. Dalip Singh sent ruqa Exhibit PB to Police Station Saddar, Ludhiana, and on its basis formal First Information Report Exhibit PB/1 was recorded. The sample was sent to the Chemical Examiner who vide report Exhibit PD opined the contents to be illicit liquor. After necessary investigation the accused was charge -sheeted. When examined under section 313 of the Code of Criminal Procedure the petitioner denied the prosecution allegations.

(3.) THE learned counsel for the petitioner tried to take me through the evidence. I am of the opinion that the evidence cannot be re -appraised at this stage. In this respect reference can be made to State of Orissa v. Nakula Sahu and others, AIR 1979 Supreme Court 663, wherein it was remarked : - "So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under Section 439 read with Section 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of appeal under Section 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose (1973) 4 SCC 10 : (AIR 1973 SC 799) and Akalu Ahir v. Ramdeo (1973) 2 SCC 583 : (AIR 1973 SC 2145). In the latter case viz. Akalu Ahir v. Ramdeo Ram (supra) this Court following its earlier decision in Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of Section 435 of the Code of Criminal Procedure, 1898 which empowered it to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed by any inferior Court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court and in spite of that fact that under Section 439 of the Code it can exercise inter alia the power conferred on a court of appeal under Section 423 of the Code the High Court is not expected to act under Section 435 or 439 as if it is hearing an appeal. The power being discretionary it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, means a discretion which is informed by tradition, menthodised by analogy and disciplined by system." Both the learned courts below have given concurrent finding about the guilt of the petitioner. I do not find that there has been any miscarriage of justice. Therefore, the evidence cannot be appraised again in this Court.