Full Judgment Text
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CASE NO.:
Appeal (crl.) 905 of 2006
PETITIONER:
Khalek Shaikh
RESPONDENT:
State of West Bengal
DATE OF JUDGMENT: 31/08/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 2282 of 2006)
ARIJIT PASAYAT, J.
Leave granted.
Appellant was convicted for alleged commission of offence
punishable under Section 46A(a)(ii) of the Bengal Excise Act,
1909 (in short the ’Act’). According to the prosecution he was
in unlawful possession of 40 litres of illicit distilled liquor.
The trial found him guilty and convicted him in terms of
Section 46A(a)(ii) and sentenced to suffer rigorous
imprisonment for three years and to pay a fine of Rs.500/-
with default stipulation.
The said order of the learned Judicial Magistrate, 1st
Court at Diamond Harbour, 24 Parganas (South) was
maintained by learned Additional Sessions Judge, 6th Court,
Alipore, 24 Parganas (South). The High Court also did not find
any substance in the revision filed before it and dismissed the
same.
The background facts leading to prosecution and
culminating in conviction essentially are as follows:
On 17.01.1996 at about 10.30 A.M the present appellant
was apprehended on Falta Road near Fatehpur market for
unlawful possession of 40 litres of illicit distilled liquor in a
polythene jar. He was arrested and the article was seized after
observing formalities followed by taking sample in a separate
bottle which was forwarded to the chemical examiner. The
analysis report is in the positive with the finding that the
liquid contained 61.22 alcohol which is of illicit origin. The
Government suffered a loss of Rs.1400/- toward revenue.
Four witnesses on behalf of the prosecution while five
witnesses on behalf of the defence were examined, and after
considering the facts, circumstances and materials on record,
the trial Court found the appellant guilty under Section 46A
(a)(ii) of the Act, convicted him there under and sentenced him
to suffer Rigorous Imprisonment for three years and to pay
fine of Rs.500/- in default to R.I. for one month which was
affirmed as stated supra by the First Appellate Court and in
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revision petition before the High Court was dismissed.
Learned counsel for the appellant submitted that no
independent witness was examined and, therefore, the
conviction is per se unsustainable. It is also submitted that
the conviction in terms of Section 46A(a)(ii) is uncalled for
and at the most the same could be in terms of Section 46A(a)(i)
of the Act. It is also submitted that the sentence imposed is
high, beyond the limit prescribed by the statute and, therefore,
are unsustainable.
Learned counsel for the State, supported the order.
The first issue relates to non-examination of independent
witnesses. The courts below analysed in detail the factual
position and came to hold as to why it was not possible for the
prosecution to examine any independent witness. There is no
prohibition on a conviction being recorded on the basis of the
testimony of official witnesses if they are found to be
trustworthy.
Coming to the question about the applicable provision,
the provision itself needs to be noted. The same reads as
follows:
"46A. Penalty for unlawful manufacture
of spirit or transport etc., of intoxicating drug,
cultivation of hemp, use and possession of
materials for manufacture of spirit and
intoxicating drug. - Whoever in contravention
of this Act or of any rule, notification or order
made, issued or given, or a license, permit or
pass granted under this Act, -
(a) manufactures any spirit or intoxicating
drug other than bakhar or cultivates hemp
plant (Cannabis sativa L.) or; (from which an
intoxicating drug can be manufactured for
produced), or
(b) uses, keeps or has in his possession any
material, still, utensils, implements or
apparatus whatsoever for the purpose
mentioned in clause (a), or
(c) imports, exports, transports, possesses or
sells spirit or intoxicating drug other than
bakhar, or;
(cc) bottles spirit for the purpose of sale, or;
(d) works any distillery or brewery, or
(e) establishes any distillery or brewery, or
warehouse,
(f) collects or sells any portion of hemp plant
(Cannabis sativa L.) from which an intoxicating
drug may be manufactured or produced.
[shall be punishable,-
(i) In the case of an offence under clause (c) or
clause (f), when the value of the spirit,
intoxicating drug or hemp plant (Connabis
sativa L.) from which an intoxicating drug can
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be manufactured or produced is less than two
thousand rupees, with imprisonment for a
term which may extend to two years and with
fine:
Provided that in the absence of special
and adequate reasons to the contrary to be
recorded in the judgment of the court, such
imprisonment shall not be:-
(1) for the first offence, for less than one month
and
(2) for the second and for every subsequent
offence, for less than three months;
(ii) in any other case, with imprisonment for a
term which may extend to five years (but shall
not be for less than six months) and with fine:
Provided that for special and adequate
reasons to be recorded in the judgment of the
court, such imprisonment may be for less than
six months but shall not be for less than three
months.]"
A bare reading of the provision makes it clear that
separate punishments are provided. First part relates to
offences under Clause (c) or Clause (f) as the case may be,
when the value of the spirit, intoxicating drug or hemp plant is
less than Rs.2,000/-, and for these cases the maximum
imprisonment is two years with fine. Second part is in the
nature of a residuary provision and relates to cases not
covered by clauses (c) or (f) within the value of Rs.2,000/-. If
the value of the contraband article is more than Rs.2,000/-
the second part will be applicable, even if the case is covered
by clause (c) or (f). This is clear from the expression used "in
any other case".
The proviso permits the court to reduce the sentence
below the prescribed minimum but it shall be only for special
and adequate reasons to be recorded in the judgment. In the
instant case though no special or adequate reason has been
indicated to reduce the sentence, the courts below proceeded
on the basis as if it is covered by alleged offence is covered by
Section 46A(a)(ii).
There is no dispute and in fact the courts below have
proceeded as if the offence committed by the accused related
to "possession". Clause (a) relates to "manufacture".
Allegations in this case do not relate to "manufacture". That
being so Section 46A(a)(ii) had no application and on the other
hand the applicable provision is Section 46A(a)(i) of the Act.
The conviction is accordingly altered. The sentence which can
be imposed for the said offence is maximum two years with
fine. Considering the quantum of illicit distillery liquor seized,
in our considered view five months rigorous imprisonment
would meet the ends of justice.
The appeal is allowed to the aforesaid extent.