"Incarceration Already Undergone Is Sufficient: Andhra Pradesh High Court Upholds Conviction Under Section 34(a) but Modifies Sentence in View of Article 21 and Right to Speedy Trial"
Safiya Malik
The High Court of Andhra Pradesh Single Bench of Justice Dr. Y. Lakshmana Rao confirmed the conviction of the petitioners under Section 34(a) of the A.P. Excise Act, 1968, while modifying the sentence in light of constitutional guarantees under Article 21. The Court acknowledged that although the statutory minimum punishment under the Act includes not less than one year of imprisonment and a minimum fine of Rs.10,000, the petitioners had already served over 15 days in incarceration. Taking into account the prolonged pendency of the criminal revision since 2008 and in light of established jurisprudence concerning the right to a speedy trial, the Court directed that the petitioners shall be sentenced to the imprisonment already undergone.
Additionally, the Court imposed an enhanced fine of Rs.10,000 each on the petitioners, excluding the amounts already paid as per prior judgments. This directive aims to balance statutory compliance with judicial compassion, considering the prolonged mental and legal ordeal experienced by the petitioners.
The High Court thus disposed of the criminal revision case with a confirmed conviction, commuted sentence, and specific directions for compliance within two months from the date of receipt of the order.
The criminal revision was filed challenging the judgment dated 14.07.2008 of the Metropolitan Sessions Judge-Cum-I Additional District and Sessions Judge, Visakhapatnam, which upheld the conviction judgment of the Special Judicial First Class Magistrate (Prohibition and Excise) in C.C. No. 1011 of 2006. The petitioners were convicted for offences under Section 34(a) of the A.P. Excise Act, 1968, and sentenced to six months of rigorous imprisonment and a fine of Rs.5,000 each, with a default sentence of 15 days’ simple imprisonment.
The revision petition was filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973. The learned counsel for the petitioners submitted that no Test Identification Parade (TIP) was conducted and no direct incriminating evidence connected the accused with the seized contraband. It was argued that the prosecution failed to prove proper procedure in arrest and seizure.
The Special M.R.I. from the MRO Office, Visakhapatnam Urban, examined as P.W.5, stated that the Excise Police destroyed the seized contraband on 27.02.2006, but made no reference to the accused. Moreover, the testimony of P.Ws.2 to 5 lacked incriminating material directly implicating the petitioners.
According to the prosecution, on 12.10.2005 during Dussehra festivities, the Excise officials intercepted a car bearing number AP 5Y 5328 coming from R.K. Beach. The vehicle was found transporting three gunny bags containing liquor bottles without any valid license. The accused were present in the vehicle. Due to the midnight hour and festival environment, mediators could not be secured, and the officials drafted special proceedings. The evidence of P.Ws.2 to 4, supported by Exs.P2 to P5, corroborated this narrative.
The prosecution examined P.Ws.1 to 7 and marked Exs.P1 to P14 along with M.O.1. The courts below concluded that the possession and transport of liquor bottles without valid licenses were sufficiently proved.
The learned counsel alternatively urged the High Court to consider the prolonged pendency of the criminal revision and incarceration period exceeding 15 days, submitting that the sentence may be limited to the imprisonment already undergone, with an additional fine as a measure of penance.
The Court recorded: "This Court, while exercising its jurisdiction under Section 397 read with Section 401 of ‘the Cr.P.C.,’ cannot invoke its revisional power as a Second Appellate Court and re-appreciation of evidence is not possible in the revision case."
Citing precedent, the Court referred to Bindeshwari Prasad Singh v. State of Bihar, where it was held: "In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in the exercise of its revisional jurisdiction."
Further reference was made to D. Stephens v. Nosibolla, which held: "It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice."
The Court remarked: "It is axiomatic that the petitioners were found in possession of huge quantity of liquor without valid license, therefore, the learned Trial Court found the petitioners guilty for the offence under Section 34(a) of ‘the Act’."
The Court noted a statutory discrepancy: "Section 34 (a) of ‘the Act.,’ mandates that the offenders have to be punished with an imprisonment not less than one year... Ironically, the learned Trial Court imposed only Rs.5,000/- which is less than the minimum statutory prescription of fine and also the imposed rigorous imprisonment of six months which is less than statutory prescription of minimum one year."
In reconciling this with Article 21 jurisprudence, the Court cited Santhosh Kumar v. Municipal Corporation, where the sentence was commuted in favor of a fine. Also cited was Braham Dass v. State of Himachal Pradesh, which stated: "We do not find any useful purpose would be served in sending the appellant to jail at this point of time..."
The Court referred to the decision in Des Raj v. State of Haryana: "Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry trial, appeal, revision and retrial."
The Court further acknowledged: "The petitioners were in incarceration for a period of more than 15 days. There are no similar adverse antecedents reported against the petitioners as fairly conceded by the learned Assistant Public Prosecutor."
The Court stated: "This criminal revision case is disposed of confirming the conviction for the offence under Section 34(a) of ‘the Act.,’ and sentencing the petitioners to suffer imprisonment to which the petitioners had already undergone."
The Court added: "While imposing an additional amount of Rs.10,000/- towards fine each on the petitioners excluding the fine amount paid by petitioners pursuant to the judgment of the learned Appellate and Trial Courts."
It was further directed: "The petitioners shall pay the additional fine amount of Rs.10,000/- (Rupees Ten Thousand Only) each within two months from the date of the receipt of this order before the learned Trial Court, failing which, the petitioners shall suffer three more months rigorous imprisonment."
The Court directed the Special Judicial First-Class Magistrate (Prohibition & Excise), Visakhapatnam to take necessary follow-up steps to ensure compliance. It concluded: "There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed."
Advocates Representing the Parties:
For the Petitioners: Sri U. Sai Kumar, Advocate
For the Respondents: Ms. P. Akila Naidu, Assistant Public Prosecutor
Case Number: Crl.R.C.No.1060 of 2008
Bench: Justice Dr. Y. Lakshmana Rao
[Read/Download order]
