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Madhya Pradesh High Court · body

2008 DIGILAW 374 (MP)

Sunil Tiwari v. State of M. P.

2008-03-04

B.M.GUPTA

body2008
ORDER 1. This revision is for impugning the judgment dated 23.11.2001 passed by the Second Additional Sessiuns Judge. Bhind in Criminal Appeal No. 93/01 affirming the judgment of conviction dated 19th October, 2001 passed by the Chief Judicial Magistrate, Bhind in criminal case No. 815/0 I, whereby the petitioner has been convicted for the offence punishable under section 34 (2) of the Excise Act imposing one year's rigorous imprisonment alongwith fine of Rs. 25,000/-. 2. The facts in brief are that on 13th August, 200 I, 288 quarters of whiskey were recovered from the possession of petitioner. On prosecution, he has been convicted as aforesaid. 3. Shri Mishra, the learned advocate for the petitioner, has assailed the impugned judgment on the ground that both the independent witnesses of the seizure memo have become hostile. On seizure memo (Ex. P-1) crime number appears written as 59/1 4th August, 200 I. Liquor of only 3 quarters has been tested. Seizing officer is the only witness who has stated against the petitioner. In aforementioned facts, he ought not to be believed, as observed by the apex Court in Mukhtiar Ahmed Anshan' v. State (N. C. T of Delhi) [ 2005 (3) Supreme 370 ]. It is further submitted by him that all the bulk has not been tested. 4. Shri Irshad for the respondent/State has drawn attention at paragraphs from 9 to 12 of the impugned judgment and has submitted that the observation of the Court below in these paragraphs is justified. 5. It is truly observed by the learned Judge in paragraphs 6 to I I that the sole testimony of the Excise Sub-Inspector San jay Gupta (PW 3), cannot be disbelieved on the ground that the two Panch witnesses of the seizure memo have become hostile in the trial. He has rightly mentioned that despite the fact that these two witnesses are not corroborating the seizure of the alcohol from the possession of the petitioner, yet they are admitting their signatures on the seizure memo. It is not explained by them as to why they put their signatures on the seizure memo, when no such alcohol was seized from the possession of the petitioner. On perusal of the seizure memo. Ex. It is not explained by them as to why they put their signatures on the seizure memo, when no such alcohol was seized from the possession of the petitioner. On perusal of the seizure memo. Ex. P-l. which has been proved by the Excise Sub Inspector Sanjay Gupta, it appears that at the time of the incident, the aforementioned liquor was recovered from the possession of the petitioner. The observation of the learned Judge on this point does not appear erroneous. 6. The appearance of Crime No. (P8 No.) on the seizure memo. this fact has been explained by the Excise Sub Inspector that these numbers were put by him in his office and not at the place of incident where the seizure memo was prepared. He has denied this fact that the seizure memo was also prepared in his office. Considering this statement, the story of the prosecution cannot be disbelieved simply on this ground also. Filing of a complaint by the Excise Sub Inspector after seizure of the alcohol is no where prohibited. He is not such a police officer who has conducted the investigation and filed charge sheet under Chapter XII of CrPC for whom it can be said that if he seized a contraband article, he should not conduct the investigation, as observed by the apex Court in the case of Mukhtiar Ahmed Anshari (supra), as cited on behalf of the petitioner. It was a case based on TADA offences in which and it has been observed that investigation by very same police official who had lodged the complaint, in absence of independent corroboration, no conviction could be recorded. In view of the above the observation in this case cannot fruitfully be utilized in favour of the petitioner on this point. 7. It is stated by Sanjay Gupta (PW 3) in paragraph 2 of his statement that he has conducted physical test of the seized material and found the same as alcohol. In view of the above the observation in this case cannot fruitfully be utilized in favour of the petitioner on this point. 7. It is stated by Sanjay Gupta (PW 3) in paragraph 2 of his statement that he has conducted physical test of the seized material and found the same as alcohol. The relevant part of his statement goes as under: ^^1- blds i'pkr~ tks 'kjkc cjken gqbZ Fkh mldh tkap dh Fkh A -------- 2- ekSds Ikj gh 'kjkc dh tkap djus ij ik;k x;k fd 'kjkc dk dyj dsjkesu dy dkj dk xa/k vYdksgy dh Fkh Lokn esa [kV~Vkiu ugha FkkA uhys fyVfel isij ds izfr mnklhu FkkA vkrfjrd ijh{k.k }kjk gkbMªksehVj ,oa FkekZehVj ls dh rks 'kjkc dh rsth 326-8 FkhA It is true that chemical test has not been conducted in the case but the aforementioned physical test appears sufficient for the purpose because an Excise Sub Inspector can be considered an expert in conducting physical test of the alcohol seized. That apart, this testimony of Excise Sub Inspector has not been challenged in cross examination. 8. With regard to this physical test of alcohol, the main contention of Shri Mishra on behalf of the petitioner is that out of 288 quarters seized, the liquor of only three quarters were physically tested. For which 'he has drawn attention at Panchanama Ex. P-I. On perusal of the back of it, the contention appears true. It appears that only liquor of three quarters was tested and the liquor of rest of the 285 quarters was not tested. While placing reliance on a judgment of the apex Court in Gaunter Edwin Kircher v. State of Goa, Secretariat Panji, Goa [ 1993 CRLJ 1485 ] and also observation of one another Bench of this Court in the case of Babulal v. State of M.P. [ 2006 (1) JLJ 405 = 2006 (1) MPJR SN 10], Shri Mishra has submitted that material content in rest of the 285 quarters cannot be said to be liquor and on that basis, the conviction of the petitioner cannot be sustained. Case of Gaunter (supra) is related to seizure of Charas. Case of Gaunter (supra) is related to seizure of Charas. It is observed in paragraph 5 of the aforementioned judgment by the apex Court that, "Where the Police Sub-Inspector searched the accused, a foreigner and recovered a polythene pouch in which there were tobacco, one cigarette paper packet and two cylindrical pieces of "Charas" and the two pieces of Charas were weighed and found to be 7 gms. and 5 gms. however, only one of the pieces weighing less than 5 gms. was sent for chemical analysis and the other piece weighing 7 gms. Was not sent or part of it by way of sample was sent for analysis, in the absence of positive proof that both the pieces recovered from the accused contained charas only, it could not be said that 12 gms. of charas was recovered from the accused. Therefore directions were given by the Court to the concerned authorities to send the entire quantity seized for chemical analysis so that there may not be any dispute regarding the quantity seized. If it is not practicable, in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law" The case of Babulal (supra) decided by this Court is also based on this observation of the apex Court. In that case, 350 quarter bottles and 20 bottles of whiskey were seized. Out of the aforementioned bulk liquor, only one bottle of plain and three or four quarters were examined. Following the observation of the apex Court, the conviction was set-aside. The facts of the present case are also similar. In view of the observation in aforementioned two cases the conviction of the petitioner cannot be upheld with regard to the material content in rest of the 285 quarters. Hence, the conviction of the petitioner appears erroneous. 9. Consequently, the revision is allowed. The impugned judgment is set-aside. The petitioner is acquitted from the offence punishable under section 34 (2) of Excise Act. Fine amount if deposited be returned back.