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Madhya Pradesh High Court · body

2008 DIGILAW 313 (MP)

MURLIDHAR v. STATE OF M. P.

2008-02-26

S.C.VYAS

body2008
Judgment S.C.Vyas, J. ( 1. ) This is a criminal revision filed under Section 397/401 of the Criminal Procedure Code challenging the legality of the conviction of the present applicant under Section 49(A)(1)(A) of the M.P. Excise Act and order of sentence of one year rigorous imprisonment and fine of Rs. 500/-. ( 2. ) The case of the prosecution is that on 10.12.96 when Excise Inspector Vidyaprakash Tiwari (P.W.3) along with his subordinate staff was taking a round of the area then he found present applicant coming with a plastic cane. When he was checked, it was found that cane was containing some liquor. That substance was seized by the Excise Inspector and was examined. Sample of the liquor was also sent for chemical examination to forensic science laboratory, Sagar. The report received from that laboratory mentions that the liquor contained in the cane is unfit for human consumption. Then the applicant was prosecuted. He was tried by learned Magistrate for the offence punishable under Section 49(A) (1)(A) of the M.P. Excise Act and was found guilty and then convicted and sentenced as aforesaid. ( 3. ) The learned counsel for the applicant raised only one point in this Criminal revision. He submitted that as per the case of prosecution the sample of alleged material was collected by Excise Inspector on 10.12.96 and the same was sent for chemical examination on 14.1.97. It has been submitted that as per the report of chemical examination it was received in laboratory on 21.1.97. Learned counsel submitted that there is nothing on record to show that the sample was stored in some safe place and was remained intact during the period of one month. It has also been argued that seizure memo Exhibit P/4 does not contain any details of the seal, as to what type of seal was used, for sealing the sample and there is no sealing impression on this seizure memo. ( 4. ) I have considered the aforesaid arguments and perused the record of the trial court. Exhibit P/4 is the seizure memo of the alleged article. This document only shows that the cane were seized on the spot. Sample were taken. But no impression of that seal which was used for the purpose of sealing the sample is available on the seizure memo.. Exhibit P/4 is the seizure memo of the alleged article. This document only shows that the cane were seized on the spot. Sample were taken. But no impression of that seal which was used for the purpose of sealing the sample is available on the seizure memo.. From the statement of witness Vidyaprakash Tiwari (P.W.3) it is also clear that he has not provided any explanation for not putting the impression of the seal on the seizure memo. It is also clear from his statement that he has not proved any information regarding the fact that the sample was intact before the same was sent to the forensic science laboratory. Nothing has been stated by him to indicate as to what was the place where the samples were stored. There is nothing to rule out the possibility of tampering with the sample. The samples were in the possession of this witness for more than a month. Before sending the same to the forensic science laboratory and during that period of one month anybody could have tampered with the seal of the sample as impression of the seal is not available and no seal impression has been filed along with the charge sheet. Therefore it is doubtful as to whether the same sample has been sent for chemical examination which was drawn from the article which has been seized from the present applicant. ( 5. ) In view of this situation inspite of report Exhibit P/7 indicating that the liquor is unfit for human consumption, it is not safe to hold that this report is pertaining to the substance which was recovered from the present applicant. Therefore, the finding of guilt and conviction of applicant under Section 49(A) (1)(A) is not sustainable and is hereby set aside. ( 6. ) But it does not end the matter. There is sufficient evidence of the Excise Inspector as well as other witness which shows that the substance which was recovered from the possession of the present applicant was examined on the spot itself by the Excise Inspector and it was found containing liquor. There is nothing to disbelieve this portion of evidence. Therefore, considering this evidence I find that the offence punishable under Section 34(A) of the M.P. Excise Act is fully made out against the present applicant. ( 7. ) Therefore, the revision is partly allowed. There is nothing to disbelieve this portion of evidence. Therefore, considering this evidence I find that the offence punishable under Section 34(A) of the M.P. Excise Act is fully made out against the present applicant. ( 7. ) Therefore, the revision is partly allowed. The conviction of the present applicant under Section 49(A)(1)(A) of the M.P. Excise Act is set aside but in its place he is found guilty for the offence punishable under Section 34(1)(A) of the M.P. Excise Act. For this offence the prescribed punishment is imprisonment which may extend to one year and fine which should not be less than Rs. 500/-but which may extend to Rs. 5000/-. ( 8. ) Attention of this Court has been drawn towards the fact that the present applicant remained in custody for 14 days during trial and after conviction. The incident is of the year 1995 i.e. 13 years back. Considering these facts I find that in place of sending the applicant back to jail after lapse of so much time it would be in the interest of justice to reduce the jail sentence to the period which has been undergone along with fine of Rs. 500/-. In case of default of payment of fine, applicant have to undergo simple imprisonment for a period of one month. Copy of this judgment be sent to CJM, Chhindwara for information and compliance. Revision partly allowed.