ASPUR, ¥ «*3 w, CRIMINAL APPEAL No. zoo1 State of Chhattisgarh’ Dil Badru S/o Kondaram Yadav, aged about 19 Yrs., o Thhuke!a,Thana Kharasia DisttRaigarh Ri se F THE 3 lN THE HIGHCOURT OF JUDICATURE AT BIL CHHATTISGARH APPELLANT Versus RESPONDENTS Q CRIMINAL APPEAL UNDER SECTION 377 O CODE OF CRIMINAL PROCEDURE 197 % HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 332 of 2001. APPELLANT State of Chhattisgarh. VERSUS RPONDENT ES Bahadur son of Lalmani Chouhan. Crminal Appeal No. 335 of 2001. i State of Chhattisgarh. VERSUS APPELLANT RESPONDENT Romi Savaria son of Rassin . Criminal Appeal No. 341 of 2001. APPELLANT Slate of Chhattisgarh. VERSUS RESPONDENT Dil Badru son of Kondaram. Crimina Apeal No. 339 of 2001. l p State of Chhattisgarh. VERSUS Dulamani son of Kartik. APPELLANT RESPONDENT Criminal Appeal No. 338 of 2001. State of Chhattisgarh. VERSUS APPELLANT Mehattar Yadav son of Ratiram. RESPONDENT u L: a Criminal Appea! No. 336 of 2001. State of Chhattisgarh. VERSUS APPELLANT Mohan Banjara son Sundar Ram Banjara. RESPONDENT Shri Vaibhav Goverdhan and Shri Vivek Sharma PL for appellant/State. Shri S.R.J. Jaisvv'al, Shri Manoj Paranjape and Shri N.K. 'x Malviya counsel for the respéctive respondents.. CRIMINAL APPEALS UNDER SECTION 377 OF THE CCDE OF R CRIMINAL PROCEDURE. JUDGMENT (2 .o2.2o10) Since all the aforementioned appeals arise oul of the common judgments dated 17.1 .2001, 18.1 .2001 and 22.1 .2001, passed 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 Criminai Procedure. The appellanilStai‘e being aggrieved by the aforementioned judgments delivered by the learned Judicial Magistrate First Class, Raigarh, convicting the respondents/accused under Section 36 of the C.G. Excise Act and}. sentencing them till rising of the Court and pay tine of Rs. 15 (in criminal appeals No. 336/2001, 338/2001, 339/2001), Rs. 5 in (criminal appeal No. 341/2001), Rs. 20 in (criminal appeal No. 335/2001) and Rs. 25 in (criminal appeal No. 332/2001), has preferred these appeals. 3. Counsel for the State submit that though present are the cases where the State has flied appeals under Section 377 of the Code of Criminal Procedure, this Court must exercise its power under Section 397/401 of the Code of Criminal Procedure because the Court below illegally framed the charges under Section 36 of the CG. Excise Act while in fact the prosecution has come with the case ‘ that each of the accused was answerable to charge under Section %3, 34 of the Excise Act. They also submit that from the proceedings recorded by the learned Judicial Magistrate, it wouid cieariy appear that without assigning any reasons the said Magistrate instead of framing charges under Secticn 34 of the C.G. Excise Act, had framed the charge under Section 36 of the Act. They submit that these are the fit cases for setting aside the orders passed by the learned Court below. u. S as 1 is; k (a) 4. Counsel for the respondents/accused on the other hand submit that as the State has not tiled any appeal against the framing of the charge under Section 34 nor had challenged the orders for not framing the charge under Section 34 of the Excise Act, there is no scope for interference in these proceedings. 5. Heard counsel for the parties at length. . Before appreciating the rival contentions it would be important to have a reference of Sections 34 and 36 of the Excise Act. Sections 34 and 36 of the Excise Act read as under: “34. Penalty for unlawful manufacture, transport, possession, sale etc. (1) whoever, in contravention of any provisions of this Act, or of any rule, notincation or order made or issued there under, or of any condition of a licence permit or pass granted under this Act, - manufacturers, transports, imports, collects or possesses any intoxicant; (b) save in the cases provided for in Section 38, sells any intoxicant; or (c) cultivates bhang; or (d) taps any toddy producing tree/or draws toddy there from; or constructs, or works any distillery, brewery or vintnery;-or usesrkeeps or' has in his possession any material, still utensil, implement or apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy;or (e) 6 K u ;:93 (g) removes any intoxcant from any distillery, brewery, vintnery or warehouse licensed, established or contained, under this Act; Bottles any liquor; shall subject to the provisions of sub-Section (2), be punishable for every such offence with imprisonment for a term which may extend to one year and fine which shall not be less than five hundred rupees but which may extend to five thousand rupees; Provided that when any person is convicted under this Section of any offence for a second or subsequent time he shall be punishable for every such offence with imprisonment for a term which shall not be less than two months but which may extend to twenty four months and with hne which shall not be less than two thousand rupees but which may extend to ten thousand rupees. (2) Notwithstanding anything contained in sub-Section (1)} if a person is convicted for an offence covered by clause (a) or ciause (b) of sub—Section (1) and the quantity of the intoxicant being liquor found at the time or in the course of detention of the offence exceeds fifty bulk liter, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with tine which shall not be less than twenty hve 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, heshali be punishable for every such offence with imprisonment for a term which shall not be less than two years but which may extend to five years and with hne which shall not be less then fifty thousand rupees but may extend to two lac rupees. (3) When an offence covered by clause (a) on clause (b) of sub-Section (1) is committed and the quantity of liquor found at the time or in the course of detection of such offence exceeds fifty bulk liters, all intoxicants, articles implements, utensils, materials, conveyance etc. in respect of or by means of which the offence is committed, shall be liable to be seized and conhscated. If such an offence is committed by or on behalf of a person who holds a licence under the Act for manufacturing or stocking or storing liquor for sale on whichduty at therprescribed rate has not been paid then notwithstanding anything, contained in Section 31 the licence granted to him shall be cancelled in case he is convicted for the offence as aforesaid. (h) i 4" it. _g~_ (4) The seizure or confiscation of the intoxicants‘ articles, imp!ements, utensils, materials and conveyance and the cancellation of licence as 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 Act or rules made there under. 36. Penalty for illegal possession — Whoever, without lawful authority, has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported. transported, manufactured, cultivated or collected knowing the prescribed duty not to have been paid thereon. shall be punishable with imprisonment for a term which may extend to six months or with find may extend to one thousand rupees, or with both.” 7. Section 36 would apply to a case where some-body possesses any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected knowing the prescribed duty not to have been paid thereon. A bare perusal of Section 36 of the Act would make it clear that Section 36 applies to a case where a person is found in possession of any quantity of any intoxicant in spite of the knowledge that the prescribed duty has not been paid thereon. ln the present case the Police did not come with the case that the accused persons were found in possession of the intoxicant on which prescribed duty was not paid. Present certainly would be a case under Section 34 of the Excise Act. Section 34 of the Act- provides that whoever, in contravention of any provisions of this Act, or of any rule, notification or order made or issued there under, or of any condition of a licence permit or pass granted under this Act. manufactures, transports, imports, exports, collects or possesses any intoxicant shall be liable to be punished for every such offence with imprisonment for a term which may extend to one year and fine which shall not be less than five hundred rupees but which may extend to five thousand'rupees. in the present cases, the prosecution had alleged that in presence of the accused persons search was effected and illicit country made liquor was recovered. The possession of country made liquor would certainly be an offence punishable under Section 34 of the Excise Act. ?é}{ J t