SUBHASH Vs. STATE OF HP

JUDGEMENT

(1.) Instant criminal revision petition filed under Section 397 of Cr.PC, is directed against the judgment dated 11.11.2009, passed by the learned Sessions Judge, Sirmaur District at Nahan, H.P., in criminal appeal No. 5-Cr.A/10 of 2005, affirming judgment of conviction dated 21.4.2005, recorded by the learned Additional Chief Judicial Magistrate Rajgarh, District Sirmaur, H.P., in Cr. Case No. 3/2 of 2002, whereby the learned court below while holding the accused guilty of having committed offences punishable under Section 61 (1) (a) of Punjab Excise Act, as applicable to the State of HP, sentenced the accused to undergo simple imprisonment for a period of one year and to pay fine of Rs. 5000/- and in default of payment of fine, to further undergo simple imprisonment for three months.

(2.) In nutshell case of the prosecution is that on 13.4.2001, flying squad headed by Kuldeep Kumar Thakur, Excise and Taxation Inspector, apprehended a truck bearing No. HP-18- 4524, being driven by the petitioner-accused and recovered 600 boxes of country made liquor of make "Sirmaur No.1". Since driver was unable to produce valid licence/permit to possess/retain the aforesaid boxes, he was taken into custody alongwith 600 boxes of country made liquor. Though petitioner accused produced permit with regard to 325 boxes of country made liquor but entire bulk of 600 boxes containing country made liquor was taken into custody by the police. Subsequently, on the complaint of Exercise and Taxation Inspector, FIR bearing No. 23/2001 under Section 61 of the Act ibid, came to be registered against the accused. Police after having taken into possession 600 boxes of liquor, drew samples only out of six boxes of 750 ml pouches of country made liquor make Sirmaur No.1 and sealed the same with seal impression "T". Remaining boxes i.e. 519 of 750 ml. and 75 boxes of 375 ml. were released on sapurdari to Shri Palash Ram, ETI Sarahan. Subsequently, on 14.4.2001, one Bhim Singh & Co. Solan along with Sada Nand Chauhan, moved an application to the police for release of liquor allegedly recovered by the police from the vehicle being driven by the petitioner-accused, however fact remains that the police rejected the application filed by the above named persons and as such, they moved an application before the Court concerned, who vide order dated 19.7.2001, ordered the Excise officer to release the liquor after imposing fine. Since above named persons had moved an application to get their liquor released by producing permit No.4/2001 and Pass No. 208201, they were also challaned under Section 61 (1) of Act ibid and Sections 467, 468, 471 and 120-B IPC.

(3.) After completion of investigation, police presented challan in the competent Court of law i.e. Additional Chief Judicial Magistrate, Rajgarh, District Sirmaur, HP, who on being satisfied that prima-facie case exists against the accused, charged Subhash Chand and Mukul Kumar under Section 61 (1) (a) of the Act ibid whereas accused Sadanand Chauhan and Bhim Singh came to be charged under Section 61 (1) (a) of the Act ibid and Sections 467, 468, 471 and 120-B of IPC, to which they pleaded not guilty and claimed trial.