1 S.B.Criminal Appeal No.419/89 (State of Ramganesh and Bhajjan Lal) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T. THE STATE OF RAJASHAN v. 1. RAM GANESH. 2. BHAJJAN LAL. S. B. CRIMINAL APPEAL NO.419/89, against the judgment dated 2.2.89, passed by Shri Atul Kumar Jain, RJS, Additional CJM, Sriganganagar, in Criminal Case No.445/85. DATE OF JUDGMENT ::: 12/08/2009 HON'BLE MR. JUSTICE C. M. TOTLA Mrs. Chandra Lekha, PP, for the State. Mr. H.S.Sandhu, for Respondents. BY THE COURT : Prosecution challenges respondents' acquittal for the offence of Section 54A, Rajasthan Excise Act recorded per judgment dated 2.2.89 in Criminal Case No.445/85. Brief facts, as per prosecution, are that Deputy Superintendent of Police PW 5 on 29.3.80 going to Chunavat in connection with some investigation, on way, observing a jeep No. PBF 670 loaded with wine cartons, stopping it, searched – jeep driven by Bhajjan Lal and one was sitting e Ram Ganesh who on asking produced a permission letter No.2906 of 25.3.80, which beared names of consignor and consignee both - on search in jeep were found about 17 packets or cartons having described number of holder containing total 309.9 litres, whereas permission/permit was only of 180 litres, so articles were seized and sample from each 17 cartons taken. Preparing recovery memo Ex.P1, memo of place of occurrence is Ex.P2 and site plan Ex.P3 Ram Ganesh and driver Bhajjan Lal arrested. Registering FIR, obtaining FSL report etc., 2 S.B.Criminal Appeal No.419/89 (State of Ramganesh and Bhajjan Lal) charge-sheet submitted. Among the prosecution witnesses examined PW 5 is seizure officer, ASI PW 3 and SHO PW 6 who were accompanying Dy. S.P. State of seizure as above. Amichand PW 1 and Omprakash PW 2the said independent “motbirs” are declared hostile. PW 4 and PW 7 relate to depositing samples at laboratory. Respondent Ramganesh explained that he was employee of the licensee and as per instructions and as permit and cash memo were handed over to him, he was traveling in jeep only to hand over the goods to other licensee. Respondent driver states that he was only driver and material transported as per directions. Learned Magistrate, observing that search was conducted without obtaining search warrant under Section 47 of the Excise Act and/or without complying with other conditions, is illegal. Accordingly, for search without warrant and other stated reasons, acquitted. Learned Public Prosecutor argued that permit with the goods are excisable articles found transported authorized for 180 litres, whereas actual quantity found was 309 litres. Argued that search was conducted by a competent officer and in the circumstances, not possible was to obtain warrant or comply with other requirements. Learned counsel for the respondents argued that a licensee wholesaler drawing a bill did sell to a licensee seller and then the material was transported and transported in the same district, so no offence is committed. Argued that the persons in the jeep were declared employees of the licensee and search without any reason, was flouting provisions of law. Argued that in any case, sample from every container is not separately taken so all the material seized cannot be taken to be liquor. Considering arguments, perused record and impugned judgment. According to prosecution itself and per evidence of PW 5, appears that a 3 S.B.Criminal Appeal No.419/89 (State of Ramganesh and Bhajjan Lal) certain license having all the details authorizing transportation of seized like goods was produced. A perusal of judgment impugned shows that what sold was by a licensed person and transported to authorized licensee person, is not disputed one. In such contingency, when from licensee to licensee was being transported, the inference arrived at by the learned Magistrate of necessities etc. of getting warrant cannot be said to be not based on evidence and established facts. Accordingly, no reason now appears to interfere with the findings of learned trial Court and the appeal is to be dismissed. The appeal is dismissed. (C.M. TOTLA),J. scd