REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 202 OF 2002

Chand Gupta and Ors. ……Appellants

Versus

State of Himachal Pradesh …….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. Challenge in this appeal is 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  Rs.2,000/-  with  

default stipulation.

2. The Judicial Magistrate, Ist Class, Solan recorded the conviction as  

noted  above  and  in  appeal,  learned  Additional  Sessions  Judge,  Solan  

confirmed the judgment and order of the trial Court. A revision petition was  

filed  before  the  High Court  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 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  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 [P.W.8),  Mangat Ram,  

Sub  Inspector  [P.W.-9]  and  other  police  staff  officials  were  on  special  

checking when they received a secret information that in the godowns of  

M/s Shiva Enterprises at  Solan a large quantity of liquor was concealed  

without  valid permit  and pass. On the basis of the said information the  

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godowns of M/s Shiv Enterprises were checked by the raiding party where  

accused  Kashmir  Singh,  Salesman  and  accused  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  

authorised by the competent authority under the permit. It was also the case  

of the prosecution that on checking the sale and stock register for the year  

1992-93,  17 boxes of DM 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 the  

Station House Officer, Police Station, Enforcement, South Zone, Shimla,  

on the basis  of  which F.I.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 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  

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the Police Report 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 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 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 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 as  that  of  

Accused No.1 was taken by accused Jagdish Chander.  Accused Kashmir  

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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  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 of a license, permit or pass, as granted under  

the Act willfully breaches or omits to abide by any of the conditions  in such  

license, permit  or pass such holder of the permit will be punishable with  

such fine as extendible to an amount 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  

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 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’) or in any event Section 360 and Section  

361  of the Code  have clear application to the facts of the case.  

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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 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 contravention  of any section of this Act or of any rule, 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) 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;

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 possession of a working  still for the manufacture of any intoxicant, shall be punishable  with minimum sentence of six month’s imprisonment and fine  of two hundred rupees …..”

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“65. Penalty  for  certain  acts  by  licensee  or  his  servant.—  Whoever, being the holder of a license, permit or pass 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  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

(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 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 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  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  

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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 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 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 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.  

………………..………………..J. (Dr. ARIJIT PASAYAT)

…………………………….…….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, May 08, 2009

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