iT HIGH COURT OF CHHAniSGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 332 of 2001. APPELLANT RESPONDENT VERSUS State of Chhattisgarh. Bahadur son of Lalmani Chouhan. Post for pronouncementofjudgmenton& -1-2010 Sd/- Pritinker Diwaker Judge 1811 '^•^^S^M::^.,:[-:..^:.:.^::^'^ i ...(.•^•'.^•:-';- ' .^'..i^.:^;l'..i^i.i m 1 :!1 l': ;: i; '•'•^ ^ ^ HIGH COURTOFCHHATTtSGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 332 of 2001. APPELLANT State of Chhattisgarh. RESPONDENT APPELLANT RESPONDENT APPELLANT RESPONDENT APPELLANT RESPONDENT APPELLANT RESPONDENT VERSUS Bahadur son of Lalmani Chouhan. CriminalAppealNo. 335 of2001. VERSUS State of Ghhattisgarh. Romi Savaria sonof Rassih . Criminal Appeal Np. 341 of 2001. VERSUS State of Chhattisgarh. Dil Badru son of Kondaram. Criminat Appeal No. 339 of 2001 . VERSUS Stateof Ctihattisgarh. Dulamanison ofKartik. Criminal Appeal No.338 of2001. VERSUS StateofChhattisgarh. MehattarYadavsonofRgtiral .1H 1 i 1 Criminal Appeal No. 336 of2001. APPELLANT RESPONDENT VERSUS State of Chhattisgarh. Mohan Banjara son Sundar, Ram Banjara. " Shri Vaibhav Goverdhan and Shri Vivek Sharma PL for appellant/State. Shri S.R.J. Jaiswal.Shri Manoj Paranjape and ShrjN.K. Malviya counsel fbr the respective respondents. 1 CRIMINALAPPEALSUNDERSECTION3770FTMEGODEiOF CRIMINALPROGEDURE. S JUDGMENT (2^2.2010) Sinceall theafQrementioned appeals arise out ofthe Gommon judgments dated 17.1.20Q1, 18.1.2001 and 22.1.2001, passeiel. by the Judicial Magistrate First Class, Raigarh, they are disposed of by this common judgment. 2. The aforementioned appeals are filed under Section 377 of the Code of Criminal Proeedure. The appellant/State b^ing aggrieved by the afbrementioned judgments delivered by ithe tearned Judicial Magistrate First Class, Raigarh, convicting the respondents/accused under Section 36of the C.G. Excise Aet arid senteneing them till rising ofthe Court and pay fineof Rs. 15ij(in criminal appeals No. 336/2001, 338/2001, 339/2001), Rs. 5 j in (criminal appeal No. 341/2001), Rs. 20 in (criminal appeal iNo. 335/2001) and Rs. 25 in (eriminal appeal No. 332/2001), h^s preferred thesa appeals. | j 1 . ; 3. Counsel-for the State submit that though present are the cases where fh®State has filed appegls under Seetion 377 oftHe IH' Code of Criminal Procedure, 1:his Court must ;exercise its; povyer underSeetion 397/401 ofthe CodeofCriminal procedure beeat|se i'i • the Court below illegally framed the eharges under Sectiorr36 ofthfe Ui 3e C.G. Excise Act while in fact Ihe prosecution has come wi the ca^e that each^of the accused was ahswerable to charge under SeGtiOi!] s- ! ! -3- 34 of the Excise Act. They also submit that from the proceedings recorded by the learned Judicial Magistrate, it wouldclearly appear that without assigning any reasons the said Magistrate instead of framing charges under Section 34 of the C.G. Excise Act, had framed the charge under SectiQn 36 of the Act. They submit that these are the fitcases for setting aside the orders passed by the learned Court below. 4. Counsel for the respondents/accused on the other hand submit that as the State has hot filed any appeal against the framing of the charge under Section 34 nor had challenged the orders fon not framing the charge under Section 34 of the Excise Act, there is no scope for interference in these proceedings. i / 5. Heard CQunselforthe parties atlength. 6. Before appreciating the riyal contentions it would be imporjtant to have a reference of SeGtions 34 and 36 Of the Excise A'ct. Sections 34 and 36ofthe Excise Act read as under: "34. Penalty for unlawful manufacture, transport.i possession, sale etc. (1)whoever, in contravention of any provisjons of this Act, or of any rule, notification or order made or issued there under, or of any conditiori of a licenee permit or pass granted under thisAet, - (a) manufaeturers, transports, imports, collects or possessesany intoxicant; (b) save in the cases providedfor in SectiohSS, sells any intoxicant; or (c) cultivatesbhang;or ^d)' taps any^toddy producing tree/or draws toddythere from; or (e) eonstructs,orworkSianydistillery,brewery | orvintnery;or | (f) uses, keeps OF has in his ppsse^sipnjan^ material; ^ still yte^ • irrtplement i on apparatus, whatsoeyer fbr the purposfe, ol| manufaeturing any intoxicant other than| toddy;or , i i \, ;\ -It 1'Tt l1'^ i. ^^y (g) removes any intoxicant from any distillery, brewery, vintnery or warehouse licensed, established or contained, under this Act; (h) Bottles any liquor; shallsubject to the provisions of sub-Section (2), be punishable for every such offence with imprisonment for a term which mayextend to oneyearand fine which shall not beless thanfive hundred rupees but which may extend to five thousand rupees; Provided that wheriany person is convicted under this Section of any offence for a second orsubsequent time he shall be punishable for every such offence with imprisoninent for a term which shall not be less than two months but which may extend to twentyfour months and with fine which shall not beless than two thousand rupees but which may extend to ten thousand rupees. (2) Notwithstanding anythingcontained in sub-Section (1), if a person isconvicted for an offenee covered by clause (a) or clause (b) of sub-Section (1) and the quantity of the intoxiGant being liquor found at the time or in the course of detentiQB of the offence exceeds fifty bulk liter, he shall be punishable with imprisonment for a term which shall not be less than oneyear but which may extend to three years arid with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees; Provide that when any person is convicted under this Section for an offence for second or subsequent time, heshall be punishable for everysuch offence with imprisonment for aterm whichshall not be less than two years but which may extend to five years and with fine which shall not be less then fifty thousand rupees but may extend to two lac rupees. (3) When an offencecovered by clause (a) or clause (b) of sub-Section (1) is Gommitfed and the quantity of liquor found at the fime or in the coyrse ofdetection of such offence exceeds fifty bulk liters, all intoxicants, articles implements, utensils; materials, conveyance etc. in respect of or hy means ofwhich the offence is committed,'shall be liable to be seized and confiscated. If such anioffence is Gommitted by or on behalf of a person who holds a licence ynder the Act for manufaGturing or stockihg or stoFirtg liquor for sale on which duty at the prescribed rate hasnQt been paid then notwithstanding anything contained in Section 31 the licence granted to him shall Be earicelled in case he is convieted for the offence as afbresaid. sr --£~- (4) The seizure or confiscation of the intoxicants, articles, implements, utensils, materials and conveyance and the cancellation of licenceas'provided under sub- section (2) above shall be in addition and without prejudice to any other action that may be taken under any provisions of the Actor rules made there under. 36. Penalty for illegal ppssession - Whoever, without lawful authority, has in his possession any quantity of any intoxicant knowing the same to have been unlawfutly imported, transported, nianufactured, cultivated or collected knowing the prescribed duty not to have been paid thereon, shall be punishable with imprisonment for a term whieh may extend to six months or with find may extend to one thousand rupees.or with both." 7. Section 36 woyld apply to a case where some-body possesses any quantity of any intoxicant knowingjthe same to have been unlawfylly imported, transported, manufactured, cultivated or collected knowing the prescrjbed duty not to have been paid thereon.A bare perusal ofSection 36 ofthe Actwould make it clear that Section 36 applies to a case where a person is fouhd |in possession of any quantity of any intoxicant in spite of the knowledge that the prescribed duty has not beeri paid thereon.ijln the present case the Police did notcome with the case that the accused persons were found in possession of the intoxicant on whieh prescribed duty was not paid. Present certainly would be! a case under Section 34 of the Excise Act. Section 34 of the ^ct provides that whoever, in cohtravention of any provisions ofthis y'icft, orof any rule, notification or order made or issued there under, o|| of any condition 6f a licence permit or pass granted underthis lAct, manufactures, transports, imports, exports, collects or possesSes any intoxicantshall be liabtetpbepunishedforevery sueh offeqice with imprisonmeht for a termwhich may extend toone year and|ne which shall not be less than five hunGlred rupees but whieh extend to five thousand rupees. In the present cases, prosecution haidalleged thatin presence pfjthe accused^ pei^pns search was effected and illicit country Wade liquor was rgeov^i'ed. The possession of country made liquor Mvould certainly be an ofGerice punisHgible under Section 34 6f the Excise Act. llthe w Tv' 8. The order passed by the learned court below shows absolute non application of mind. In the proceedings recorded by the learned trial Court, it has been mentioned that challan under Section 34-A of the Excise Act was filed but all of asudden the learned Court below framed a charge underSection 36 of theAct. Ifthe Court was ofthe opinion that the accused could not be cMarged with the offence punishable under Section 34 or 34-A of the Act, it was required to assign reasonsin steadof simplysaying thatthe accused is charged with Section 36 of the Excise Act. 9. It has been argued on behalf of the respondents that the respondents/accused may be released on bail as has been donejin the matter ofState ofChhattisgarh v. Bhugdev reported in 2001 (2)CJU84. 10. In the considered opinion ofthis Court, the present are the |fit cases where power under Seetion 397/401 of the Code of Crimirial Procedure must be exercised to set at naught the illegality committed by the Court below. 11. The orders passed by the learned Court below are liable to fce set aside and they areset asideas. such.It is, however, directea ftfilat as the aceused persons had already undergone the sentehee awarded tothem and have deposited the fine, the Court below shall refund the amount deposited bythemandincaseofconvictionwh|e awarding the sentence shall take into consideration thesentenee alreadysufferedbytherespondents. ll 12. Though the offence under Section 34 of the Excise Act is iji(sin bailable, looking to the totality of the circumstances, it is airected th&t each of the respondents be released on bail on his furnishing||c £)!|< personal bond in the sum of Rs.500 with one surety in the amount to the satisfaction of the trial Court. The trial Coyrf s^ijall resfore all the cases to their originalnumbers and shall proceed v</i(h i themattersinaccordancewithlaw. || 13. Consequently, the appeals are^aUowed_with the directjons]as made above. Sd/- : Pritinker Diwaker Judge w