ASHOK KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revision petition is directed against the judgment of learned Addl. Dist. and Sessions Judge, Raisinghnagar dated 13.5.1982 he has confirmed the order of learned Judicial Magistrate, 1st Class, Raisinghnagar dated 21.8 81.

(2.) Brief facts which give rise to this petition are that on 30.3.78 one Baney Singh, Excise Inspector along with Harisingh and Excise Party was going towards Jaitsar. They saw a jeep RJR 7565 coming from Jaitsar. On suspicion the jeep was stopped, which was driven by the petitioner and Hansraj and Gurucharan Singh were sitting on the wrong seats. On search 16 bags containing 380 bottles of liquor made by Rajasthan Excise Department were found. After making search memo, all the three persons were arrested and samples from 4 bottles were taken separately. They committed an offence under section 54(a) of the Rajasthan Excise Act as they did not possess valid licence or permit and the jeep was confiscated. After due investigation, the department submitted a challan against all the three persons. The accused persons pleaded not guilty and denied the recovery of liquor. During trial Baney Singh P.W.l, Hari Singh, Jamadar P.W.3, and Chananmal P.W.2, who took the samples, were examined. The learned trial court after conclusion of the trial found all the persons guilty under section 54 (a) of the Rajasthan Excise Act and sentenced them to 1 years rigorous imprisonment and a fine of Rs. 2000.00 each and in default of the payment of fine to undergo further rigorous imprisonment tor three months. Aggrieved by this order, the petitioner has preferred this petition.

(3.) Mr. Manoj Garg, learned counsel for the petitioner has submitted that out of 384 bottles samples from only four bottles were taken. He has also submitted that Ramnath Malkhana Incharge was not examined by the prosecution to prove that sample in custody remained intact and the same were not tempered. He has further submitted that without giving any finding that the seized goods were in physical and conscious possession, particularly when the other two accused persons were acquitted by the same learned Judge on same date though by a separate order, so, petitioners conviction cannot be sustained. He has placed reliance on Babulal Vs. State of Rajasthan (Cr.L.R. (Raj.) 1980-509) and Shanker Vs. State of Rajasthan (Cr.L.R. 1985-600) .