CHAND GUPTA AND ORS.versusSTATE OF HIMACHAL PRADESH

                             [2009] 8 S.C.R. 285


                         CHAND GUPTA AND ORS.                             A
                                       v.
                     STATE OF HIMACHAL PRADESH
                     (Criminal Appeal No. 202 of 2002)

                                MAY 8, 2009
                                                                          B
            [OR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
i                          SHARMA, JJ.)

              Punjab Excise Act, 1914 - s. 61 (1) (a) - Prosecution
        under~ For unlawful possession of liquor - Recovery in raid,      c
        of liquot in excess of the authorized quantity - Explanation
        bf the accused that the liquor was meant for transportation of
        a aonsignment- Conviction by courts below uls. 61 (1) (a) -
•       Plea of accused thats. 61 (1) (a) not applicable and their act!
        omission was covered u/s. 65 (c) for omission to cancel their D
        transport permit for a consignment - Held: Accused was
        liable to be convicted u/s. 61 (1) (a) - In view of nature of
        offence; not entitled to benefit under probation of Offenders
        Act - Probation of Offenders Act, 1958 - ss. 4 and 6.
                                                                          E
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
        No. 202 of 2002.
~
    I

             From the Judgment & Order dated 24.09.2001 of the High
        Court of Himachal Pradesh at Shimla in Crl. Revision No. 19
        of 2000.                                                          F

            U.U. Lalit, Manu Nair, Kirat Singh Nagra, Saanjh N. Purohit
        and Suresh A. Shroff & Co. for the Appellants.

            Naresh K. Sharma and Meenakshi Arora for the
        Respondent.                                      G

            The Judgment of the Court was delivered by

            DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
                                     285                                  H
    286     SUPREME COURT REPORTS                   [2009] 8 S.C.R.


A to the judgment of a learned Single Judge of Himachal Pradesh
  High Court upholding the conviction of the appellants for offence
  punishable under Section 61 (1 )(a) of the Punjab Excise Act,
  1914 (in short the 'Act') as applicable to the State of Punjab
  and the sentence of imprisonment for three years and a fine of
B Rs.2,000/- with default stipulation.

        2. The Judicial Magistrate, 1st Class, Solan recorded the
  conviction as noted above and in appeal, learned Additional            ..
                                                                         j

  Sessions Judge, Solan confirmed the judgment and order of
  the trial Court. A revision petition was filed before the High Court
C which dismissed the same by the impugned order.

          3. Background facts as noted by the High Court are as
    follows:

         In the year 1992 accused Chand Gupta was the owner of
0
    M/s Shiva Enterprises, Solan dealing in L-2 and L-14 liquor
    business. Accused Kashmir Singh was the Salesman of the
    Firm, whereas accused Jagdish Chander was the supervisor
    looking after the godowns of the concern located at Solan. On
   6.6.1992 at about 1.00 p.m. Shri Harbhajan Singh, Deputy
E Superintendent of Police, Enforcement, South Zone, Shimla
    alongwith Om Parkash Sharma, Excise and Taxation Officer
    (P.W.-1), Jagdish Raj Punj, Excise and Taxation Inspector
                                                                         t
    [P.W.8), Mangat Ram, Sub Inspector [P.W.-9] and other police         '
    staff officials were on special checking when they received a
F secret information that in the godowns of Mis Shiva Enterprises
    at Solan a large quantity of liquor was concealed without valid
    permit and pass. On the basis of the said information the
    godowns of Mis Shiv Enterprises were checked by the raiding
    party where accused Kashmir Singh, Salesman and accused
G Jagdish Chander, Supervisor, were present. Accused Kashmir
    Singh handed over the keys of five godowns to the raiding party
    and on checking the godowns in the presence of both the
  . accused persons, large quantity of liquor was found concealed
    by the accused without permit, in excess of the quality of liquor
H authorised by the competent authority under the permit. It was
        CHAND GUPTA AND ORS. v. STATE OF HIMACHAL 287

-             PRADESH [DR. ARIJIT PASAYAT, J.]

        also the case of the prosecution that on checking the sale and A
        stock register for the year 1992-93, 17 boxes of OM XXX Rum,
        21 boxes of Bison XXX Rum, 2 bottles and 7 boxes of half
        bottles and 17 boxes of Old Taren whisky along with 18 Nips
        were not entered in the register after 3.6.1997. Harbhajan Singh,
        Deputy Superintendent of Police, sent Ruqua Ext. PW-9/B to B
        the Station House Officer, Police Station, Enforcement, South
!       Zone, Shim la, on the basis of which F.1.R. Ex.PW-5/B came to
        be registered by Ram Rattan, Station House Officer. The
        investigation of the case was conducted by Shri Mangat Ram,
        Inspector Enforcement (PW-9) who took into possession the C
        seized bottles of liquor vide recovery memo Ext.. PW-3/A.
        Licence of the liquor vend Ext. PW-6/A was also taken into
        possession. He prepared site map Ext. PW-9/C. Statements
        of the witnesses were recorded by him and on receipt of the
        report of the Chemical Analyser Ext.PW-9/E the Police Report
                                                                            0
        under Section 173 of the Code of Criminal Procedure, 1973
        (in short the 'Code') was filed before the learned trial Magistrate
        against the accused persons for commission of offence
        punishable under Section 61 (1 )(a) of the Act. The learned trial
        Magistrate charged the accused for the commission of the
        alleged offence. Since the accused pleaded not guilty, the trial E
        was held. In trial, the trial Court convicted the appellant. Appeal
    \   was dismissed.

             The appellant No.1 admitted before the High Court that he
        was owner of M/s Shiva Enterprises in L-2 and L-14 liquor          F
        business. Liquor found in the godown by the raiding party in
        excess of authorized quantity of liquor was meant for
        transportation to Dhabota Vend and the consignment could not
        be transported due to some agitation in that area and,
    ~   therefore, was unloaded in the godown at Solan. It was also        G "
        submitted that appellant No.1 was not present at the spot when
        the raiding party conducted raid of his godown and seized the
        excess quantity of liquor. The accused appellant Jagdish
        Chander admitted his engagement as Supervisor. He admitted
        the checking of the godowns by the raiding party. Similar stand    H
    288       SUPREME COURT REPORTS                 [2009) 8 S.C.R.


A as that of Accused No.1 was taken by accused Jagdish
  Chander. Accused Kashmir Singh admitted his engagement
  as a Salesman. He admitted checking of the godown by the
  raiding party.

        Basic stand of the appellant is that the omission to cancel
8
  permit under Section 65 (c) of the Act was not unlawful
  possession of liquor under Section 61 of the Act. With reference
  to Section 65 (c) of the Act it is submitted that if a valid holder       r
                                                                            '
  of a license, permit or pass, as granted under the Act willfully
  breaches or omits to abide by any of the conditions in such
C license, permit or pass such holder of the permit will be
  punishable with such fine as extendible to an amoLtnt of
  Rs.5,000/-. It was submitted that appellants have improperly
  omitted to cancel the pass for the transport of liquor from their
  licensed premises over to the Vend at Dhabota within a                    .,
                                                                            .

D reasonable period of time. Such technical omission as
  understood under Section 65 (c) of the Act is further established
  from a perusal of the statement by the prosecution witnesses.
  It was submitted that at the most the appellants are liable for
  conviction under Section 65 (c) relating to minor offence as it
E was established that the appellants have improperly omitted to
  cancel their transport permit for a consignment of liquor not
  transported. It is also submitted that the Sections 4 and 6 of
  Probation of Offenders Act, 1958 (in short the 'Probation Act')       l
  or in any event Section 360 and Section 361 of the Code have
F clear application to the facts of the case.

        4. Therefore it is submitted that the explanation appended
    to Section 65 (c) is applicable and not Section 61(1)(a).

      5. Learned counsel for the respondent-State on the other
G hand supported the judgment of the High Court.

          6. Sections 61 and 65 so far as relevant reads as follows:

          "61. Penalty for unlawful import, export, transport,
          manufacture, possession, etc.- (1) Whoever, in
H
          CHAND GUPTA AND ORS. v. STATE OF HIMACHAL 289
                PRADESH [DR. ARIJIT PASAYAT, J.]
             contravention of any section of this Act or of any rule,       A
             notification issued or given thereunder or order made, or
             of any license, permit or pass granted under this Act-

             (a) imports, exports, transports, manufactures, collects, or
             possesses any intoxicant; or
                                                                            B
           · (b) constructs or works any distillery or brewery; or
  .
  '
             (c) uses, keeps or has in his possession any material still,
             utensils, implement or apparatus whatsoever for the
            'purpose of manufacturing any [intoxicant] other than tari;     c
                                                               \)   ~


            shall be punishable for every such offence with
            imprisonment for a term which may extend to three years
            and with fine upto two thousand rupees and if found in
'I.         possession of a working still for the manufacture of any
            intoxicant, shall be punishable with minimum sentence of        D
            six month's imprisonment and fine of two hundred rupees
                "

             "65. Penalty for certain acts by licensee or his servant.-
           · Whoever, being the holder of a license, permit or pass         E
             granted under this Act, or being in the employ of such
             holder or acting on his behalf:-
  ~
      •
            (a) fails wilfully to produce such license, permit or pass on
            the demand of any excise officer or of any other officer duly
                                                                            F
            empowered to make such demand; or

            (b) in any case not provided for in section 61 wilfully
            contravenes any rule made under section 58 or section 59;
            or
                                                                            G
            (c) wilfully does or omits to do anything in breach of any of
            the conditions of the license, permit or pass not otherwise
            provided for in this Act;

            shall be punishable in case (a) with fine which may extend
                                                                            H
    290       SUPREME COURT REPORTS                   [2009] 8 S.C.R.


A         to two hundred rupees, and in case (b) or case (c) with
          fine which may extend to five hundred rupees."

           7. The factual position needs to be noted. The date of
     occurrence is 6.6.1992. The pass was issued on 30.3.1992. It
     is submitted that the appellants were not in any unlawful
8
     possession as stated in Section 61 (1 )(a) and there was merely
     a default of irregularity as provided in Section 65 (c) of the Act.
     Additionally, it is submitted that the sentence is severe and the
     Probation Act can be made applicable. The permit or pass was
     issued for the period from 4.6.1992 to 6.6.1992. The accused
C    appellants were in possession of unauthorized quantity of liquor
     in the godown at Solan. Section 65. prescribes punishment for
     failing to produce license, permit or pass on demand of any
     excise officer or of any other officer duly empowered to make
     such demand, on contravention of any rules framed under
D    Section 58 or Section 59 in any case not provided for in
     Section 61 of the Act or breach of any conditions of the license,
    permit or pass not otherwise provided for in the Act.
     Undisputedly, PWs 1, 8 and 9 i.e. officials found when the
    godowns of the accused appellant No.1 was raided by them
E   seized bottles of liquor were found in possession of the
    accused in excess of the prescribed quantity of liquor
    authorized by the department under the permit granted to the
    lessee. The benefit of Probation Act was denied as huge                .>
    quantity of liquor was kept in the godown without any permit. A
F   minimum sentence is provided in Section 61. Considering the
    nature of the accusations, the High Court has rightly held that
    the Probation Act has no application. That being so, there is
    no merit in this appeal which is accordingly dismissed.

    K.K.T.                                        Appeal dismissed.