s* llc - excise

of 9

I 1s96-(O)-DLTRJ-1003-HC lEourvnlenr cITATIoN(s) :r gige- (o ) - o urRl- 1 oo3- Hc1997-(1)-RLW-0514-HC1997-(0) -cRU-1390-HC1996-(2) -wLN-0495-HC1996-(1) -RLR-0s23-HC1997-(1) -wLc-0370-Hc

DATE OF DECISION : 17/t2/1996

CORAM :HON'BLE MOHAMMED ASGAR ALI KHAN

TEXT :

CHARAN SINGH VS. STATE OF MJASTHAN

CASE NO : S.B. CRIMINAL REVISION PETITION17TH DECEMBER, 1996

COUNSEL :Biri Singh, for Petit ioner S.S' Rathore, P'P'

JUDGMENT :

NO. 278 OF L992, DECIDED ON

Se,c tLfs+

S* llc-----

Hon .b |eKHAN,J ' - I n t h i s caseCha ranS ingh ,pe t i t i one rwascaugh t redhanded;; M.y 23, 19BB at 6 P.M. by PW, 3, om Prakash Yadav, Excise Inspector and PW

i. euii aui-r, Constable while he was manufacturing i l l icit l iquor, an excisable

u.ti. l . , on a working sti l l at the bank of a river near a hil lock situated at about 1

K.M. away from vil l ige Baghoda under police Station Ghoda, Distt. Alwar. He was

tried for having committed-the offence Under Segllon-!.!Q/54 of the Raiasthan

irii". a"t, t550 (hereinafter referred to as the Act). The learned trial Magistrate

6*-O tn" p.t i t ioner guilty for the said offence and convicted him as such. Thep"iit ion.r was accori ingly sentenced to six months R.I. and a f ine of Rs' 500/- or

in default to further undergo R.I. for two months more. In appeal the learned

Addl. Sessions Judge Kishingarh Bas, Alwar confirmed the conviction and

sentence of the petit ioner as recorded by the learned trial Magistrate' Hence, thispetit ion Under Section 397 Criminal Procedure Code

(2). Mr. Biri singh, the learned counsel for the petit ioner vehemently urged thatirre rinoings recorded by the two courts below about the guilt of the petit ioner

were perv-erse in as much as no independent witness has suppofted theprosecution case, The learned counsel further submitted that since the sampleiiquor *ur forwarded to the chemical analyst as late as after 20 days of the

This copy of "Rajasthan E Law Library" is licensed to "DAYA SHANKAR"

Se i zu re the reo f , t he tes t imonyo fPW.3omPrakashYadav ,Exc i se l nspec to randn i , p . o n P W . 2 R a t i R a m s h o u l d n o t h a v e b e e n b e | i e v e d a n d r e | i e d u p o n f o rconv i c t i ono f t hepe t i t i one ras theywe re i n te res tedpe rsons ' I f i ndno fo r ce i n th i sargument .

(3) . I t is t rue that PW. 4 Ja imal S ingh who was examined as an independent

*i in"r, in the present case had turned hosti le and had not supported the

pror"irt ion case. But that hardly affect the worth and value of the sworn

testimonies of pW 2 Rati Ram, Constable and PW. 3 Om Prakash Yadav, Excise

inspector. Both these witnesses had stated that on May 23,1988 when they were

on bat rot t ing dut ies they had seen smoke coming up f rom behind a h i l lock and

when they, _with

their team, had reached there they noticed the petit ioner

manufacturing i l l icit l iquor on a working sti l l . They clearly stated that a drum full

of l iquor, wash was placed on a "chulhi" under which fire was burning and with

the help of a plastic tube which was fixed with the help of "Babri Mitt i" the l iquor

was being taken to a rubber tube. The witnesses further told that they had

apprehen-ded the petit ioner on the spot and seized all the relevant articles of the

**ring sti l l . pw i om prakash yadav has proved the drum as Afticle 1, Babri

tt l i t t i as"Rrticte -2, Degchi Silver as Article-3, rubber tube as Article 4, the l iquor

bottle as Article 5, the wash bottle as Article 6, a piece of Bhatti as Article 7 and

the piece of burnt wood as Article 8. No material contradiction could be extracted

in their statements on their cross-examination. Both these witnesses had no

enmity with the petit ioner. PW 3 om Prakash Yadav, Excise Inspector, had even

stated'that he did not know the petit ioner from before' He futher stated that

since he had remained busy in other off icial work he could send the sample of

l iouor and the wash, seized from the possession of the petit ioner, only after about

Zd days. The evidence led by both these witnesses was quite consistent andinspired confidence. Their being on their off icial duties of patroll ing was not

unnatural or abnormal. They had felt attracted towards the place of occurrence on

seeing the smoke r is ing in the sky ' They had found i l l i c i t l iquor be ingmanuiactured on a workable sti l l . They had seized all the relevant articles on the

spot and such articles were also produced in the court. There is thus nothing intheir testimonies to disbelieve them. Unlike some of the enactments under theEnglish law where a particular number of witnesses is required to prove theu*iit"nc" of a fact Indian law of evidence does not insist upon the quantity ofevidence to prove a fact. Quality and not quantity of evidence is required to prove

the existence of fact under our laws, This principle has been given a statutoryrecognit ion under the Indian Evidence Act, LB72 in section 134 which says thatno pirt icular number of witnesses shall, in any case, be required for the proof ofany fact. That being the posit ion of the requirement of evidence to prove all factsunder our laws, conviction may safely be based on the testimony of a singlewitness if such testimony is found of sterl ing worth, i f in the facts andcircumstances of a given case, the evidence of a solitary witness is acceptableand reliable the conviction of an accused may be based on the testimony of suchs ing le wi tness.

(4). In the instant case PW. 2 Rati Ram and PW' 3 Om Prakash Yadav, Excise

Of 9

This copy of "Rajasthan E Law Library" is l icensed to "DAYA SHANKAR"

I n spec to rdono t cease tobe theWi tnesseswo r th re | i ancemere | ybecause they-n .pp " . t obe theo f f i ce r so f t heExc i seDepa r tmen t .P reven t i ono f c r ime in

rJl[ ion to excisable articles and bringing the offenders of the Act to books were

their off icial duties. In the course of discharging their duties, i f they become

*itn.rr., of the commission of certain offences against the Act, their testimonies

cannot be discarded on the sole ground that they were interested in-the success

of the result of the discharge of their off icial duties. Their testimonies shall have

to be approached with carJ and caution and if on such scrutiny their evidence is

f ound tobe re | i ab |e thecou r t cana |waysac tupon the i r t es t imon ies .Ass ta ted.i i f i .r, there is nothing in the testimonies of these two witnesses which may

discredit them and help the court to declare them un-reliable witnesses. PW' 3

omPrakashYadav ,Exc i se l nspec to r , hassa t i s f ac to r i | yp roved thede |ay i nsend ing thesamp |e l i quo r f o r chem ica Iexam ina t i onandsuchexp |ana t i onhasbeen , i " nmyop in i on , r i gh t l yaccep tedby theCou r t sbe |owasp |aus i b | e . I nmyopinion Uofn tfre witneises were certainly reliable and have rightly been relied

,b." OV the Courts, below for holding petit ioner guilty of the offence Under

Section 16/54 of the Act'

( 5 ) .TheSend ingo f t hesamp |e | i quo randsamp |ewash fo r chem ica Iexam ina t i oniter a aetay of-about 20 days does not adversely affect the worth and value of

the evidence of PW 3 Om Prakash Yadav, Excise Inspector for the simpl_e.reason

that PW 1 Jai Prakash, Excise Guard, has stated on oath that on 13.6.88 he had

received the sample l iquor and the sample wash in sealed condit ion and had

Oli ivereO the same to ihe Chemical Examiner on 14.6.88 in sealed condit ion No

40 cross-examination was made on this witness. It is thus proved that the

s a m p | e s o f | i q u o r a n d t h e W a s h | a s h a d b e e n p r e p a r e d b y S h . o m P r a k a s h Y a d a v ,Excise Inspector, were kept in sealed condit ion t i l l they were received by the

Chemical ixaminer. The argument advanced by the learned counsel thus has no

force and is herebY rejected.

( 6 ) ' I t w a s n e x t u r g e d b y M r . B i n S i n g h t h a t t h e o f f e n c e i n t h e p r e s e n t c a s e w a siommitted in the year 19BB and almost B years have passed by now' It was

submitted that after the lapse of so long a t ime it would not be worthwhile to

send the petit ioner to jai l to undergo the imprisonment awarded to him by thetrial court. It was submitted that the petit ioner may be placed on probation for a

specif ied period or in any case the sentence already undergone by him may beconsidered sufficient in the facts and circumstances of the present case' In thisbehalf the learned counsel relied upon the decision of this court is the case ofMadniya vs. State of Raj' (1) and Sona Singh & Ors. vs' State of Raj' (2)' Afterhaving considered the prayer made by Mr. Biri singh in the l ight of the decisionscited bV him I am of the opinion that in the facts and circumstances of the caseand the law made in Proviso to section 54 of the Act and laid down by the Apexcourt from time to t ime it would not be proper on the part of this court to ignorethe nature and gravity of the offence and its impact and affect on the economy ofthe State and health of the PeoPle.

(7). On facts it is established that the petit ioner was found manufacturing i l l icit

Of 9


l iquor on a working sti l l in a place away from a vil lage. The l iquor being somanufactured waJbeing stoied in a rubber tube. The mode of manufacture of theliouor and the manner of i ts storage clearly indicate that the l iquor manufacturedby the petit ioner could have proved harmful to the health of the consumersthereof. The quality of the l iquor manufactured by the petit ioner may, therefore,well remind a person of i ts l ikely fatal consequences also, which results fromconsumption of such l iquor, day in and day out' The act committed by thepetitioner, therefore, clearly attracted the provisions of Section 54(d) of the Act.ihe relevant part of Section 54 alongwith the Proviso there under reads asfo l lows:-

, 'Penalty for unlawful import. Export, transport manufacture, possession, etc. -

whoever, in contravention of this Act or any rule, or order made or of any l icence,permit or pass granted, there under:

(a) impofts, export, transport, manufactures, collects, sells or possesses anyexcisable aticle : or

(b) :

(c) :

(d) uses, keeps or has in his possession any materials, sti l l , utensil, implementsor-apparatus whatsoever for the purpose of manufacturing any excisable articleother that or

(e) :

Of 9

(s) :

Shall be punishable with imprisonment for a term which may extend to threeyears and with f ine which may extend to two thousand rupees.

,provided that if a person is so found in possession of a workable sti l l for themanufacture of any excisable article or is found to be guilty of sell ing orpossessing for sale any excisable article in contravention of the provisions of thisAct or of any rule or order made or of any l icence, permit or pass grantedthereunder, he shall be punished with the minimum Sentence of imprisonment forsix months and fine of two hundred rupees."

(8). A plain reading of the above provision clearly says that if a person is found inpossession of a workable sti l l for the manufacture of any excisable article or isfound to be guilty of sell ing or possessing for sale any excisable article incontravention of the provision of this Act or of any rule or order made or of any

(f)


Of 9

l icence, permit or pass granted thereunder he shall be punished with theminimum sentence of imprisonment for six months and fine of two hundredrupees. The proviso to Section 54 thus creates a bar to the discretion of the couftto be lenient in awarding punishment less than the minimum prescribed by thestatute. It may further be noted that the provisions made in the proviso do notgive any discretion to the court to impose a punishment less than the minimumprescribed thereunder even for any reasons whatsoever. The object of prescribingminimum sentence for the offence Under Section 54(d), which has been foundproved against the petit ioner in the present case, is not far' away to f ind' Itadmits no controversy that l iquor which is an intoxicant is injurious to publichealth, morality and wealth of the people. The State has to power, may a duty, toprohibit the trade in l iquor which is harmful to the public health, morality andwelfare and, therefore, no person can claim an absolute right to deal in l iquor.The purpose of the Act is to control and restrict not only i l legal trade in l iquor butalso restrict the consumption of intoxicating l iquor particularly those which aremanufactured in non-hygienic condit ions. This object of the Act makes themanufacture of i l l icit l iquor in non-hygienic condit ions a grave crime against thepeople at large. It is, therefore, for such reasons that the legislature appears tohave prescribed a minimum sentence of six months and a f ine of Rs. 200/- foroffences fall ing under the purview of the proviso to Section 54 of the Act.

(9). The Apex Court appears to have time and again considered the sentencingpractice for socio economic crimes. Dealing with a case under the Prevention ofFood Adulteration Act, 1954 in the case of Pyarali K. Tejani vs' MahadeoRamchandra Dange & Ors.(3), the Apex Court observed in para 31 as under '

"The Court has jurisdiction to bring down the sentence to less than the minimumprescribed in Section 16(1) provided there are adequate and special reasons inthat behalf. The normal minimum is six months in jai l and a thousand rupees fine.We find no good reason to depart from the proposit ion that generally foodoffences must be determinately dealt with. The High Court under the erroneousimpression that the offence fell under Section 7(i) read with Section 16( 1) (a) (i)actually it comes Under Section 7(v) read with Section 16(1) (a) (i i) - did notaddress itself to the quantum of sentence. Even so the punishment f i ts the crimeand the criminal." Their lordships further observed in para 32 as under:

"We are not unmindful of the possibil i t ies of vi l lage victuallers and tiny grocersbeing victimized by dubious enforcement off icials which may exacerbate whenpunishments become harsher, and the marginal hardships caused by stemsentences on unsophisticated small dealers. Every cause has its martyr andParliament and Government - not the Court - must be disturbed over the searchfor solutions of these problems. Savage severity may not always prove effectiveand may be cruel on petty and marginal offences."

(10). Their lordships cautioned the Magistracy of the country while awardingsentence involving socio economic offences and observed as under:


"The learned Magistrate, we are constrained to observe' has completely fai led to

uppr.."tu tn. giauity oi food offences when he imposed a naively negligible

i"nt.n." of onJ hundred rupees fine. In a country where consumerism as a

movement has not developed, the common man is at the mercy of the vicious

dea |e r ,Andwhen thep r ima rynecessa r i eso f | i f ea reso |dw i t hspu r i ousadm ix tu res fo rmak ingp ro f i t , h i son | yp ro tec t i on i s t heP reven t i ono fFoodAdulteration Act and the Court. If offenders can get away with it by payment of

tr ivial f ines, as in the present case, it brings the law into contempt and its

enforcement a mockery. In this context, i t is opposite to draw attention to

measures taken ln many advanced countries for the evolution of a rational and

loniirt"nt policy of seniencing. Conferences between Judges' Magistrates andpenal Administrators, are beirig organized with increasing frequency in England

and in the United States. fne 4Zt[Report of the Law Commission has stressed

the need for the programme because of the sentencing, vagaries witnessed in our

iountry, Indeed, thJeducation of the sentencing Judge, particularly. in the context

of economic offences, is a yawning gap in our criminal system and the near-

"scupe of the accused before the ir 'nt 'Court in this case, prevented only by the

criminal Revision to the High court, permits us to observe that the magistracy in

the country has yet to realise that ' there are occasions when an offender is so

anti-social that his immediate and some times prolonged confinement is the

best assurance of society's physical protection' Or, we may add, even in less

severe situation heavy enough fine to drive him out of the trade if he tried the

trick again. There is injustice to the community-the invisible but immense victim

of the ir ime in the Court 's misplaced sympathy for the culprit "

(11). Deprecating the practice of extending the benefit of the provision ofprobation of offenders Act, 1958 l iberally in such cases their Lordships observed

as under in Paft 27 and 28 of the report:

"The retaliatory purpose of the Probation of offenders Act, 1958, is pervasive

enough technicaily to take within its wings an offence even under the Act. The

ruling'ln Ishar Das vs. state of Punjab is authority for this posit ion' certainly, ' i ts

bene?icial provisions should receive wide interpretation and should not be read in

a restricted sense.' But in the very same decision this Court indicated one serious

l imi ta t ion:

"Adulteration of food is a menace to public health. The Prevention of FoodAdulteration Act has been enacted with the aim of eradicating that anti social eviland for ensuring purity in the articles of food. In view of the above object of theAct and the intention of the Legislature as revealed by the facts that a minimumsentence of imprisonment for a period of six months and a f ine of rupees onethousand has been prescribed, the courts should not l ightly resort to theorovisions of the Probation of Offenders Act in the case of persons above 21 years

of age found guilty of offences under the Prevention of Food Adulteration ActThe kindly application of the probation principles is negative by the

imperatives of social defence and the improbabil i t ies of moral proselytizing. Nochance can be taken by society with a man whose anti social operations,

of 9


disguised as a respectable trade, imperil numerous innocents' He is a security

risk. Secondly, tnese economic offences, committed by white-collar criminals are

;; l i i ; ; ; # dissuaded bv the gentle probationarv process' Neither casual

provocation nor motive against particuiar persons but planned profit-making from

;r;i l ; of .onrr*.r, fuinishes the incentive - not easily humanized by the

therapeut icprobat ionarymeasure. I t isnotWi thouts ign i f icancethat therecenti"p"ri t+if n'neport) of ih" Lu* commission of India has recommended the

exc |us i ono f t heAc t t osoc i a | andeconom ico f f encesbysu i t ab |eamendmen ts . I tobserved:

, ,Weapp rec i a ted tha t t heSugges tedamendmen twou Idbeappa ren t con f | i c tW i t h

current trends in sentencing. But ult imately, the justif ication of al l sentencing is

ihe protection of society. Tflere are occasions when an offender is so anti-social

that his immediate and sometimes prolonged confinement is the best assurance

or ,ol i"ty,, protection. The consideration of rehabil i tation has to give way, be

iause of'the paramount need for the protection of society' We are' therefore'

iecommending suitable amendment in all the Acts, to exclude probation in the

above case. "

( 12 ) .TheApexCou r t r e i t e ra ted thesamep ropos i t i on i n t hecaseo fDhanan joybnult"t i"" vs. State of West Bengal (4), where their Lordships observed as under

in oara 14 and 15 of the report:

, . I n recen t yea rs , t he r i s i ngc r ime ra tepa r t i cu |a r | yV io | en t c r imeaga ins tWomen

has made the criminal seritencing by the courts a subject of concern. Today there

are admitted disparit ies. some ciiminals get very harsh sentences while many

receive grossly different sentence for an essential ly equivalent crime and.a

,r,oir. indrv large number even go unpunished thereby encouraging the criminal

."a i. tn-j ult i-mate making justice suffer by weakening the system's credibil i ty' Of

iourr", i t is not possible to iay down any cut and dry formula relating.toi-porit ion of sentence but the object of sentencing should be to see that the

crime does not go unpunished and the victims of crime as also the society has the

satisfaction that justice has been done to it. In imposing sentences in the absence

of specif ic legislal ion, Judges must consider variety of factors and after .considering Jtt those factors and taking an overall view of the situation, impose

sentence rini.n tf 'ey consider to be an appropriate one. Aggravating factors

cannot be ignored and similarly mitigating circumstances have also to be taken

into consideration.

In our opinion, the measure of punishment in a given case must depend upon theatrocity of the crime; the conduct of the criminal and the defenseless andunprotected state of the victim. Imposit ion of appropriate punishment is themanner in which the courts respond to the society's cry for justice against the

criminals. Justice demands that courts should impose punishment befitt ing the

crime so that the courts reflect public abhorrence of the crime. The courts must

not only keep in view the rights of the criminal but also the rights of the victim ofcrime and tl.re society at large while considering imposit ion of appropriate

Of 9

This copy of "Rajasthan E Law Library" is licensed to'DAYA SHANKAR

Dunishment . "

(13). Speaking in the same tone the Apex Court-again reminded and stressed

,poii ti" auth-orities dealing with the offences of grave nature in the case of Ravji

vs, State of Raj, (5), in the following words:

,, i t is the nature and gravity of the crime but not the criminal, which are germane

for consideration of appropriate punishment in a criminal tr ial. The court wil l be

fail ing in its duty if appropriate punishment is not awarded for a crime which has

been-committed not only against the individual victim but also against the society

to which the criminal and victim belong. The punishment to be awarded for a

crime-must not be irrelevant but it should conform to and be consistent with the

atrocity and brutality with which the crime has been perpetrated, the enormity of

the crime warranting public abhorrence and it should "respond to the society's cry

for jus t ice against the cr imina l . "

(14). In the same context it may be recalled that way back in 1982 the Apexbourt while dealing with a case under the Andhra Pradesh Excise Act, 1968, State

of Andhra Pradesh vs. s.R. Rangadamappa (5), had expounded the law on the

subject in the following words :

,,The statute prescribed a minimum sentence. It does not provide for anyexceptions and does not vest the court with any discretion to award a sentencebelow the prescribed minimum under any special circumstances. The learnedJudge has himself noticed that the sentence imposed is the statutory minimum.Having noticed that the statute prescribes a minimum sentence for the offence,the High Court has understandably reduced the sentence of imprisonment to less

than the minimum permissible, The High couft was clearly in error in doing so.we think we have said enough to correct the error. It is unnecessary to pursue

the matter further by granting special leave' ' '

( 15). It may thus be noted that all along the Apex court has viewed the offencesinuotuing tl 'Le national economy and the national health very strongly' It has beenstressed time and again that where the statute prescribes a minimum sentencefor an offence the Court must administer the law in letter and spirit unless somediscretion has been given to the court to become lenient in the matter ofawarding sentence. It is a well known fact that misplaced sympathy shown by the

court to the offenders against socio-economic laws, more often then not,encourages the breach of such laws. That is not a happy state for any civi l izedsociety as it compels the Legislature to come out with stringent and harsher lawsfor the people depriving at the same time the court of i ts discretion to becomelenient in the matter of awarding sentence. As stressed by the Apex Court in thecase of Ravji vs. state of Raj. (supra) it is the nature and gravity of the crime but

not the criminal, which are germane for consideration of appropriate punishment

in a criminal tr ial. Undoubtedly the courts wil l be fail ing in their duty ifappropriate punishment is not awarded for a crime which has been committed notoniy against the individual victims but also against the society at large to which

Page B Of 9


Of 9

the criminal as well as the victims of his crime belong. Deterrent theory ofpunishment shall have, therefore, be applied in the cases of offences againstnational economy and public health in the larger interest of our society. In theinstant case the offence which the petit ioner was convicted of less thin thedomain of anti-social and- anti economic offences against the society at largeand, therefore, cannot be l ightly viewed at. For these reasons/ therefore, and inview of the law repeatedly stressed by the Apex couft on the subject I am unableto treat the petit ioner leniently by either reducing his sentence or dealing with hiscase according to the benevolent provisions of the probation of offenders Act,1958' That being so I hold that the decisions relied upon by the learned Advocatedoes not afford any help to him. In the result the petit ion fails and is herebydismissed.

CASES REFERRED :1. Madniya vs. State of Raj. (985 RCC 131)

2. Sona Singh & Ors. vs. State of Raj. (1990 RCC 596)

3. Pyara l i K. Te jan i vs . Mahadeo Ramchandra Dange & Orc. (1974 (1) SCC 167)

4. Dhananjoy Chatterjee vs. State ofWest Bengal (1994 (2) SCC 220)

5. Ravj i vs . State of Raj . (1996 (2) SCC 175)

5. State ofAndhra Pradesh vs. S.R. Rangadamappa (AIR 1982 SC 1492)

ACT & SECTTON REFERENCE(S) :Rajasthan Excise Act, 1950 - Sections 7, 76, 16(I) and 54;Evidence Act, tB72 - Section 134;Prevention of Food Adulteration Act, 1954;Probation of Offenders Act, 1958;Andhra Pradesh Excise Act, 1968;Criminal Procedure Code (CrPC) - Section 397

This copy of "Rajasthan E Layv Library" is l lcensed to "DAYA SHANKAR

s* llc - excise

Documents