STATE OF RAJASTHAN Vs. UTTAMCHAND

JUDGEMENT

(1.) This appeal is directed against the judgment dated June 10, 1980, passed by the Munsif and Judicial Magistrate, First Class, Sangaria, whereby the respondents were acquitted of the offence under Section 34 of the Rajasthan Excise Act, on merits.

(2.) In this appeal Mr. H. S. Sindhu, learned counsel for the accused respondents raised an objection that the State sought leave on the ground that the Excise Inspector had no authority to file the challan in view of the Division Bench decision of this Court in State of Rajasthan v. Laxmansingh1, and leave was not sought on merits. There was no ground challenging the acquittal on merits, in the petition for leave to appeal. Hence the appellant State of Rajasthan cannot be allowed to challenge the acquittal in appeal on merits. The respondents were acquitted, firstly, on ground that the identification of the respondents is doubtful, as the occurrence took place at about 2-15 a.m., in the night when it was dark and the accused persons has escaped and, secondly, on the ground that there was third boarder of the Jeep, who was concealing his identity and was sitting pear the 13 Kattas of liquor. It was this third boarder of the Jeep, who was found to be in conscious possession of the bottles. Mr. Sandhu placed reliance on a Division Bench decision of the Madhya Pradesh High Court in Parasram Shivlal Tara Sewania v. Laxminarayan and others2, wherein it was observed that where leave has been granted on a particular question, then the scope of the appeal would be limited to that question.

(3.) Dr. Bhandawat, learned Public Prosecutor, on behalf of the State of Rajasthan submitted that it is true that the leave was sought on the basis of the Division Bench judgment, as contended by Shri Sandhu, but when leave had once been granted, then it is open to the State to challenge the appeal on merits.