Allowed

Pawan Kumar v. the State of Jharkhand

Jharkhand HC8 Apr 2022Cr.Rev./95/2015

Case brief

AI extract

What is this about?

The High Court of Jharkhand quashed the conviction in a criminal case for possession of liquor. It held that without a Government notification under the Bihar Excise Act, 1915, prohibiting the specific quantity of beer, the prosecution could not establish that the possession was illegal. The defect gap in the prosecution case warranted quashing the impugned judgment.

What did the court decide?

The conviction under Section 47(a) of the Bihar Excise Act and the sentence of one year RI with fine were set aside; the criminal case was dismissed, and the liability of bail bonds was discharged.

Pawan Kumar Vs the State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Revisional Jurisdiction)

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Criminal Revision No.95 of 2015

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Pawan Kumar, s/o late Sitaram Sharma, r/o village-Mohitpur Sini, PO & PS-Seraikella, District-Seraikella Kharsawan. ... Petitioner

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Versus

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The State of Jharkhand ... Opposite Party (Through V.C)

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

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For the Petitioner : Mr. Vikram Shahdeo, Advocate For the State : Mr. Santosh Kumar Shukla, APP

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Order No.4/Dated: 8th April 2022

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The petitioner was put on trial in C3-Case No.17 of 2009 to face the trial under section 47(a) of the Bihar Excise Act. By judgment dated 10^th February 2012, the petitioner has been convicted and sentenced to RI for one year with fine of Rs.1000/for the said offence with a default stipulation to undergo SI for one month.

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2. The appeal preferred by the petitioner was dismissed by judgment dated 24^th November 2014 passed in Criminal Appeal No. 36 of 2012.

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3. Mr. Santosh Kumar Shukla, the learned APP, appears for the State.

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4. Mr. Vikram Shahdeo, the learned counsel for the petitioner, has raised two-fold contentions (i) on the independent witness not supporting seizure of 96 beer bottles the accused could not have been convicted for the possession of intoxicant/liquor as defined under Bihar Excise Act, 1915 and (ii) without establishing that possession of a particular quantity of intoxicant/liquor is prohibited by a Government notification as required under sub-section (12a) to section 2 of the Bihar Excise Act, 1915 the accused cannot be convicted.

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5. In C3-Case No.17 of 2009, the prosecution examined four witnesses to prove the charge under section 47(a) of the Bihar Excise Act, 1915 (as adopted by the State of Jharkhand) for

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2 Criminal Revision No.95 of 2015

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possession of 62.400 litre illegitimate liquor in 96 beer bottles. In the trial, the informant stated in his evidence that at the time of raid at the line hotel at Sini More 12-13 other persons were present who all on inquiry revealed that Pawan Kumar is the owner of the line hotel. From the judgment in C3-Case No.17 of 2009, it appears that evidence in this regard was quite discrepant as witnesses gave different version of the occurrence. PW4 in his cross-examination stated that no seizure was made in his presence and at the instance of the police he put his signature on the memo. The evidence of PW4 has been discussed by the learned Judicial Magistrate in the following manner:

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“The said statement of an independent witness may be very well understood because, in normal course independent seizure list witnesses speaks such types of sentences. In chief examination, this witness identified his sign and date of making of seizure list was 01.04.2009 whereas date of examination of this witness was 03.08.2011. Obviously the said seizure list witness was examined approximately after two years of the preparation of seizure list and during this period, he did not file any complaint before any authority in regard to take of his sign by pressure or by advise by the police. Conduct of independent seizure list witness is very normal in the present society.”

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6. The aforesaid reasons recorded by the learned Judicial Magistrate in the judgment dated 10^th February 2012 is not supported by any rule of law. There is no law of universal application that it is quite normal for a witness who is examined in the Court after about two years to deny everything about the prosecution case. The learned Judicial Magistrate rendered an outstanding opinion in so far as conduct of an independent witnesses is concerned. I further find that the appellate Court has also not adverted to the relevant issues which arise in the case and ignored the deficiency in the prosecution case in as much as the only independent witness did not support the prosecution case in the Court.

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7. Section 2(12a) defines intoxicant to mean any liquor or any substance from which liquor may be distilled and which is declared by the State Government by notification in the Official Gazette to be an intoxicant for the purpose of this Act. Sub-section (14) to section 2 provides that the expression “liquor” would include all liquids consisting of or containing alcohol, such

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3 Criminal Revision No.95 of 2015

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as spirits of wine, spirit, wine, fermented tari , pachwai and beer, and also unfermented tari , and also any other substance which the State Government may, by notification, declare to be liquor for the purposes of this Act.

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8. There is no dispute that no notification by the State Government prohibiting possession of 96 bottles of beer was issued and published in the Official Gazette. The Court assumes that such a notification is in place but then a trial in a criminal case cannot proceed on assumptions. Without producing a notification as envisaged under section 2(12a) (i) and (ii) of the Bihar Excise Act, 1915 the prosecution cannot establish that recovery of 96 beer bottles from the line hotel, Sini More which allegedly belonged to the petitioner was in contravention to the provisions of Bihar Excise Act, 1915.

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9. The powers of the revisional Court in a petition under section 397 read with section 401 of the Code of Criminal Procedure to interfere with the findings recorded by the Courts below are very limited and the Court would not enter into the realm of evidence through a minute examination but the glaring deficiency in the prosecution case as has been noticed in the present case cannot be ignored and the Court is required to exercise its revisional powers in such situation.

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10. In view of the aforesaid discussions, the judgment of conviction under section 47(a) of the Bihar Excise Act and the order of sentence of RI for one year and fine of Rs.1000/- against the petitioner as upheld by the learned appellate Court in Criminal Appeal No. 36 of 2014 dated 24^th November 2014 are set-aside and consequently C3-Case No.17 of 2009 is dismissed.

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11. The liability of bail-bonds furnished by the petitioner pursuant to the order dated 27^th February 2015 passed by this Court granting him bail in C3-Case No.17 of 2009 is discharged. 12. Criminal Revision No.95 of 2015 is allowed.

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(Shree Chandrashekhar, J.)

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Amit/

Pawan Kumar v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

Pawan Kumar v. the State of Jharkhand

Case brief

What is this about?

What did the court decide?

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