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CASE NO.: Appeal (crl.)  905 of 2006

PETITIONER: Khalek Shaikh

RESPONDENT: State of West Bengal

DATE OF JUDGMENT: 31/08/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 2282 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.   

       Appellant was convicted for alleged commission of offence  punishable under Section 46A(a)(ii) of the Bengal Excise Act,  1909 (in short the ’Act’).  According to the prosecution he was  in unlawful possession of 40 litres of illicit distilled liquor.   

       The trial found him guilty and convicted him in terms of  Section 46A(a)(ii) and sentenced to suffer rigorous  imprisonment for three years and to pay a fine of Rs.500/-  with default stipulation.                                                                                                                                                             

       The said order of the learned Judicial Magistrate, 1st  Court at Diamond Harbour, 24 Parganas (South) was  maintained by learned Additional Sessions Judge, 6th  Court,  Alipore, 24 Parganas (South).  The High Court also did not find  any substance in the revision filed before it and dismissed the  same.

       The background facts leading to prosecution and  culminating in conviction essentially are as follows:

       On 17.01.1996 at about 10.30 A.M the present appellant  was apprehended on Falta Road near Fatehpur market for  unlawful possession of 40 litres of illicit distilled liquor in a  polythene jar.  He was arrested and the article was seized after  observing formalities followed by taking sample in a separate  bottle which was forwarded to the chemical examiner.  The  analysis report is in the positive with the finding that the  liquid contained 61.22 alcohol which is of illicit origin. The  Government suffered a loss of Rs.1400/- toward revenue.

       Four witnesses on behalf of the prosecution while five  witnesses on behalf of the defence were examined, and after  considering the facts, circumstances and materials on record,  the trial Court found the appellant guilty under Section 46A  (a)(ii) of the Act, convicted him there under and sentenced him  to suffer Rigorous Imprisonment for three years and to pay  fine of Rs.500/- in default to R.I. for one month which was  affirmed as stated supra by the First Appellate Court and in

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revision petition before the High Court was dismissed.  

       Learned counsel for the appellant submitted that no  independent witness was examined and, therefore, the  conviction is per se unsustainable. It is also submitted that  the     conviction in terms of Section 46A(a)(ii) is uncalled for  and at the most the same could be in terms of Section 46A(a)(i)  of the Act. It is also submitted that the sentence imposed is  high, beyond the limit prescribed by the statute and, therefore,  are unsustainable.   

       Learned counsel for the State, supported the order.   

The first issue relates to non-examination of independent  witnesses. The courts below analysed in detail the factual  position and came to hold as to why it was not possible for the  prosecution to examine any independent witness. There is no  prohibition on a conviction being recorded on the basis of the  testimony of official witnesses if they are found to be  trustworthy.  

Coming to the question about the applicable provision,  the provision itself needs to be noted.  The same reads as  follows:

"46A. Penalty for unlawful manufacture  of spirit or transport etc., of intoxicating drug,  cultivation of hemp, use and possession of  materials for manufacture of spirit and  intoxicating drug. - Whoever in contravention  of this Act or of any rule, notification or order  made, issued or given, or a license, permit or  pass granted under this Act, -

(a) manufactures any spirit or intoxicating  drug other than bakhar or cultivates hemp  plant (Cannabis sativa L.) or; (from which an  intoxicating drug can be manufactured for  produced), or

(b) uses, keeps or has in his possession any  material, still, utensils, implements or  apparatus whatsoever for the purpose  mentioned in clause (a), or

(c) imports, exports, transports, possesses or  sells spirit or intoxicating drug other than  bakhar, or;

(cc) bottles spirit for the purpose of sale, or;

(d) works any distillery or brewery, or

(e) establishes any distillery or brewery, or  warehouse,

(f) collects or sells any portion of hemp plant  (Cannabis sativa L.) from which an intoxicating  drug may be manufactured or produced. [shall be punishable,-

(i) In the case of an offence under clause (c) or  clause (f), when the value of the spirit,  intoxicating drug or hemp plant (Connabis  sativa L.) from which an intoxicating drug can

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be manufactured or produced is less than two  thousand rupees, with imprisonment for a  term which may extend to two years and with  fine:

Provided that in the absence of special  and adequate reasons to the contrary to be  recorded in the judgment of the court, such  imprisonment shall not be:-

(1) for the first offence, for less than one month  and

(2) for the second and for every subsequent  offence, for less than three months;  

(ii) in any other case, with imprisonment for a  term which may extend to five years (but shall  not be for less than six months) and with fine:

       Provided that for special and adequate  reasons to be recorded in the judgment of the  court, such imprisonment may be for less than  six months but shall not be for less than three  months.]"

       A bare reading of the provision makes it clear that  separate punishments are provided. First part relates to  offences under Clause (c) or Clause (f) as the case may be,  when the value of the spirit, intoxicating drug or hemp plant is  less than Rs.2,000/-, and for these cases the maximum  imprisonment is two years with fine.  Second part is in the  nature of a residuary provision and relates to cases not  covered by clauses (c) or (f) within the value of Rs.2,000/-.  If  the value of the contraband article is more than Rs.2,000/-  the second part will be applicable, even if the case is covered  by clause (c) or (f).  This is clear from the expression used "in  any other case".     

       The proviso permits the court to reduce the sentence  below the prescribed minimum but it shall be only for special  and adequate reasons to be recorded in the judgment.  In the  instant case though no special or adequate reason has been  indicated to reduce the sentence, the courts below proceeded  on the basis as if it is covered by alleged offence is covered by  Section 46A(a)(ii).  

There is no dispute and in fact the courts below have  proceeded as if the offence committed by the accused related  to "possession". Clause (a) relates to "manufacture".   Allegations in this case do not relate to "manufacture". That  being so Section 46A(a)(ii) had no application and on the other  hand the applicable provision is Section 46A(a)(i) of the Act.   The conviction is accordingly altered.  The sentence which can  be imposed for the said offence is maximum two years with  fine.  Considering the quantum of illicit distillery liquor seized,  in our considered view five months rigorous imprisonment  would meet the ends of justice.

       The appeal is allowed to the aforesaid extent.