KHALEK SHAIKH versus STATE OF WEST BENGAL

Citation: [2006] SUPP. 5 S.C.R. 665 · Decided: 31-08-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

KHALEK SHAIKH 
A 
STATE OF WEST BENGAL 
AUGUST 3 L 2006 
[ARIJITPASAYAT ANDLOKESHWARSINGH PANT A, JJ.] 
B 
Excise laws: 
Bengal facise Act, 1909-Section 46A-Unlawful possession of illicit 
distilled liquor-Offence of-Applicable provision-Held: Is Section 46A(a)(i) C 
and not Section 46A(a}(ii) as held by Courts below since the offence committed 
related to "possession" and not "manufacture "-Maximum sentence for 
· offence under S.46A(a}(i) is two years, but considering the small quantum 
of liquor seized, sentence of 5 months RI held to be sufficient. 
Bengal Excise Act, 1909-Section 46A-Conviction for un/awfitl D 
possession of illicit distilled liquor-Challenge to, on ground of non-
examination of independent witnesses-Sustainability-Held, not 
sustainable-Since 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-No prohibition 01i recording conviction on basis E 
of testimony of official witnesses if they are found to be trustworthy. 
The Trial Court convicted Appellant under Section 46A(a)(ii) of the 
Bengal Excise Act, 1909 for unlawfully possessing 40 litres of illicit distilled 
liquor and sentenced him to imprisonment for three years. The conviction 
was affirmed by the First Appellate Court as well as the High Court. 
F 
In appeal to this Court, the conviction of Appellant was challenged on 
ground that no independent witness was examined. It was further contended 
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; and that the 
sentence imposed is high, beyond the limit prescribed by the statute and, G 
therefore, unsustainable. 
Partly allowing the appeal, the Court 
HELD: 1. The first issue relates to non-examination of independent 
665 
H 
666 
SUPREME COURT REPORTS f2006] SUPP. 5 S.C.R. 
A 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. 1668-B, CJ 
B 
2.1. A bare reading of Section 46A of the Bengal Excise Act, 1909 makes 
it clear that separate punishments are provided. First part relates to offences 
under Clause (c) or Clause (I), 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 line. Second part is in the nature 
C of a residuary provision and relates to cases not covered by clauses (c) or (t) 
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 (t). This is clear from the expression used "in any other case". 
D 
E 
1669-Ef 
2.2. 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 the alleged offence is covered by Section 46A(a)(ii). 
[669-F, GI 
2.3. There is no dispute and in fact the Courts below have proceeded as 
if the offence committed by the accused related to "possession''. 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 
F 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, five months 
rigorous imprisonment would meet the ends of justice. [669-G, H; 670-AI 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 905 of 
G 2006. 
From the Judgment dated 21.12.2005 of the High Court of Calcutta in 
C.R.R. No. 3210 of 2000. 
Rauf Rahim for the Appellant. 
H 
Tara Chandra Shanna, Rajeev Sharma and Neelam Shanna for the 
KHALEKSHAIKHv. STATEOFWESTBENGAL(PASAYAT,J.) 
667 
Respondent. 
A 
The Judgment of the Court was delivered by 
ARIJIT PASA YAT, J. Leave granted. 
Appellant was convicted for alleged commission of offence punishable B 
under Section 46A

Excerpt shown. Read the full judgment & AI analysis in Lexace.