DHANI RAM Vs. STATE

JUDGEMENT

(1.) DHANI Ram was convicted under Section 48 of the Excise Act by the Special Magistrate, first class, Jammu and sentenced to six months rigorous imprisonment with a fine of Rs. 200 and in default of payment of fine to undergo two months further rigorous imprisonment. On appeal the Sessions Judge affirmed the conviction under Section 48 and also the sentence passed thereunder. The accused has come up in revision to this Court,

(2.) THE case for the prosecution as disclosed by the evidence is that Order 9 -5 -1957 Mangat Singh Sub -Inspector of Police Bishnah on getting information that the accused was working still and preparing illicit liquor raided the house of the accused in presence of Munshi Singh and Dina Nath and recovered (1) Sagla Patila containing refuse of Lahan which was placed on a Choola out of which illicit liquor was being distilled, (2) an earthen pot which was pasted with earth on the face of Sagla, (3) a Degcha in which fresh distilled liquor was lying and (4) a bamboo pipe instrument used for distillation. These articles were sealed and the seal was kept with Dina Nath on Sapurdnama. A recovery list was also prepared which was signed by the witnesses, The matter was reported to the Excise Inspector Jammu and the accused, after investigation, was prosecuted.

(3.) IN the present case the articles recovered were never produced before the Magistrate at the time of recovery but later on were produced before the trial Magistrate. After the articles were sealed, the seal was handed over to one of the prosecution witnesses Dina Nath and the seal remained with him till the articles of recovery were produced before the trial Magistrate. It is argued that the mandatory provisions of Section 46 were not complied with and, therefore, the trial is vitiated.