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2014 DIGILAW 222 (CHH)

Mahadeo v. State of Chhattisgarh

2014-06-18

SANJAY K.AGRAWAL

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ORDER (1) Invoking revisional jurisdiction of this Court under Section 397/401 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’), sole accused/applicant-Mahadeo has preferred this revision questioning the legality and propriety of judgment impugned passed by the 1st Additional Sessions Judge, Raigarh in Criminal Appeal No. 147/2003 on 15.12.2003, by which learned Sessions Judge has affirmed the judgment of conviction recorded by Judicial Magistrate First Class, Sarangarh in Criminal Case No.691/2002 and the sentence awarded to him is reduced to simple imprisonment for one month for the offence under Section 34(1)(a) of the Chhattisgarh Excise Act, 1915 (for short ‘the Act of 1915’). (2) The core facts required to be noticed for consideration of this revision are as under:- (2.1) The Station House Officer, Sariya, on the information given by the informant, on 06.07.2002 at village Bholumuda besides Kinkamani Nala caught the accused/applicant with 30 bulk liters of country made liquor kept in motor vehicle tube along with instrument for measurement and other articles, he was arrested immediately thereafter and after coming back to the police Station, Crime No. 49/2002 was registered and the seized country made liquor was tested to be litmus test and other tests; and upon the said tests, Excise Sub Inspector, circle Baramkela, District Raigarh confirmed the seized liquor to be the country made liquor/intoxicant. (2.2) After investigation charge sheet was filed before the competent jurisdictional Criminal Court against the accused/applicant. Accused/applicant abjured the guilt and decided to enter into defence stating that he has been falsely implicated in the crime in question. (2.3) In order to bring home the above stated offence, during the course of trial, the prosecution has examined following four witnesses namely:- (i) Hafij Khan (PW-1) is a seizure witness vide Ex.P-1. (ii) Mukesh Agrawal (PW-2) is the Excise Sub Inspector, who has tested the seized liquor and submitted his report vide Ex.P-2. (iii) C.S. Netam (PW-3)-Sub Inspector, who has recorded the Dehati Nalishi (Ex.P-3) and First Information Report (Ex.P-4) and the application sending the liquor for litmus test vide Ex.P-5 & he has made the Girftari Panchnama (Ex.P-6) of the accused/applicant. (iv) Nandram (PW-4) is a seizure witness (Ex.P-1). (2.4) Prosecution submitted and proved following six documents, which are as under:- (i) Property Seizure Memo (Ex.P-1). (ii) Memo for chemical examination (Ex.P-2) (iii) Dehati Nalishi (Ex.P-3). (iv) First Information Report (Ex.P-4). (iv) Nandram (PW-4) is a seizure witness (Ex.P-1). (2.4) Prosecution submitted and proved following six documents, which are as under:- (i) Property Seizure Memo (Ex.P-1). (ii) Memo for chemical examination (Ex.P-2) (iii) Dehati Nalishi (Ex.P-3). (iv) First Information Report (Ex.P-4). (v) Examination report of liquor (Ex.P-5); and (vi) Warrant of arrest (Ex.P-6). (2.5)Accused examined only one defence witness Jogesh Bariak as DW-1 and did not file any documents. (3) The trial Magistrate framed the charges for offence under Section 34(1)(a) of the Act of 1915 for possessing country made liquor, which is an intoxicant within the meaning of Section 2(11-a) of the Act of 1915; and after examination of the witnesses, came to the conclusion that the applicant/accused was found in possession of 30 bulk liters of country made liquor, which is duly supported by Seizure Witnesses namely Hafij Khan (PW-1) & Nandram (PW-4); and also came to the conclusion that liquor/intoxicant seized is a country made liquor and rejected the defence of his false implication in the case and convicted the accused/applicant for the offence under Section 34(1) (a) of the Act of 1915 and sentenced to undergo imprisonment for six months, and also imposed fine of Rs.5,000/-, and in default, he has to further undergo simple imprisonment of three months. (4) On appeal being preferred by the accused/applicant, the 1st Additional Sessions Judge, Raigarh in Criminal Appeal No.147/2003, by its judgment affirmed the findings of the trial Magistrate so far as it relates to judgment of conviction, but interfered with the order of sentence awarded by trial Magistrate; and jail sentence of six months, was reduced to jail sentence of one month while maintaining the fine sentence. (5) Shri Awadh Tripathi, learned counsel appearing for the accused/applicant would submit that seized liquor was not sent to the chemical analyst and Excise Inspector applied alternative smell test and litmus test for identification of liquor; and on the basis of his report, it cannot be held that the seized liquor was actually intoxicant within the meaning of Section 2(11-a) of the Act of 1915. He would further submit that the provisions of Section 57 of the Act, 1915 i.e obligation of Excise Officer to report to his immediate Superior Officer and the provisions contained in Section 57-A of the Act, 1915 has not been scrupulously followed by the concerned Police Officer and, therefore, the conviction recorded and sentence awarded by both the courts below are liable to be set aside, as vitiated due to non-compliance of mandatory provisions contained in the Act of 1915. (6) Opposing the above-noted submissions, Mr. Anand Verma, learned Panel Lawyer for the State would submit that while making investigation, the provisions of Sections 57 and 57-A have been religiously followed by the prosecution. He would further submit that chemical examination made by Sub Inspector adopting the smell test and litmus test for identification of the liquor cannot be faulted with as it is duly recognized and accepted method of identifying the liquor, and therefore, the revision is liable to be set aside. (7) I have heard learned counsel appearing for the parties and perused the records of both the courts below with utmost circumspection. (8) The following two questions arise for determination in this revision :- (i) Whether smell test and litmus test applied by the prosecution for identifying the seized object as intoxicant was legal and proper ? (ii)Whether Sections 57 and 57-A of the Act of 1915 were followed in its letter and spirit by the prosecution ? (9) I will proceed to take up first question with regard to identification of the liquor. (10) From the perusal of Property Seizure Memo (Ex.P-1), it would appear that the Investigating Officer/Station House Officer seized 30 bulk liters of country made liquor in the motor vehicle tube on 6.7.2002, and vide Ex.P-4 it was referred to the Excise Sub Inspector, Baramkela for examining the same and reporting the result. (10) From the perusal of Property Seizure Memo (Ex.P-1), it would appear that the Investigating Officer/Station House Officer seized 30 bulk liters of country made liquor in the motor vehicle tube on 6.7.2002, and vide Ex.P-4 it was referred to the Excise Sub Inspector, Baramkela for examining the same and reporting the result. The Excise Sub Inspector, after examination, submitted its report on 13.07.2002, which states as under:-" ^^izfr] Fkkuk izHkkjh Lkfj;k] ftyk jk;x<+ fo”k; % izdj.k da 49@02 es tIr ‘kjkc dk ijh{k.k fjiksVZ ckcr izdj.k es tIr ‘kjkc ,d Vªd V;wc dk cuk FkSyk es 30 fyVj dPph ‘kjkc gS ftldk lhy rksM+dj fuEukuqlkj ijh{k.k fd;k & 1½ efnjk jaxghu ikjn’khZ gSA 2½ lwa?kus ij egqvk ikl ikl ls cuh efnjk dh xa/k gS ,oa Lokn p[kus ij rh[kk gSA 3½ uhyk fyVel isij efnjk es Mkyus ij yky gks tkrk gSA 4½ efnjk dh rsth 69&6 ;q&ih& ik;kA vr% mijksDr izek.k ls izekf.kr gksrk gS tIr ‘kjkc egq, ikl ls cuh dPph ‘kjkc gSA ckn ijh{k.k lhy can dj egk ijh{k.k dh fjiksZV vkj{kd txnh’k tSloky Ø-154 Fkkuk lfj;k ds ek/;es ls okil fd;Ka fnukad 13-07-2002 gLrk{kj^^ (11) A bare perusal of the report would show that Excise Sub Inspector applied the smell test as well as litmus test and after conclusion of the said tests, seized Article has been reported to be the liquor as an intoxicant within the meaning of Section 2(11-a) of the Act of 1915. (12) Mukesh Agrawal, Excise Sub Inspector has been examined by the prosecution as PW-2. It appears from his evidence that no question was put to him questioning the test made by him in order to identify the liquor as intoxicant. It is not a case of the defence that smell test and the litmus test made was not made or the smell test and litmus test applied by the Excise Sub Inspector was not a correct test to be conducted for identifying the liquor, even before the appellate Court, no such plea appears to have been raised questioning the smell test and litmus test applied for identification of the liquor as bad. Therefore, I do not find any good ground to hold that smell test and litmus test applied for identification of the liquor was not proper to hold that seized country made liquor was not intoxicant within the meaning of Section 2(11-a) of the Act of 1915 and it is held that litmus test and smell test applied by the Excise Sub Inspector for identification of the liquor was just and proper. (13) The Supreme Court in case of Sri Chand Batra v. State of U.P., AIR 1974 SC 639 has held that in order to determine whether a particular liquid is liquor or not it is not absolutely necessary to get it tested chemically and is really for the Court to decide whether upon a consideration of the totality of the facts in a case it has been satisfactorily established that the objects recovered from the accused was liquor of prohibited strength. Paragraphs 12 & 13 of the report states as under:- “12. Another question before us is whether the Excise Inspector, whose evidence was under consideration, had sufficient knowledge to be deemed to be an expert within the meaning of Section 45 of the Evidence Act so that the tests adopted by him, together with all the attendant circumstances, could establish beyond doubt that the appellant was in possession of illicit liquor. We think that these are also essentially questions of fact. If there is sufficient evidence led by the prosecution to establish its case it becomes the duty of the defence to rebut that evidence. In the case before us, the appellant’s Counsel cross-examined Shri C.D. Mishra, P.W. 1, Excise Inspector, at considerable length but the whole of this cross-examination was directed at showing that the recoveries were not made from the possession of the appellant. No question was put to him in cross-examination to suggest that the appellant questioned the composition or strength of the liquid recovered as alcohol of prohibited strength or the competence of the Excise Inspector to given his conclusion on the strength of tests adopted by him. Again, no defence evidence was led to indicate that the liquid could be anything else. These considerations would be sufficient to dispose of the points raised on behalf of the appellant in the case before us. Again, no defence evidence was led to indicate that the liquid could be anything else. These considerations would be sufficient to dispose of the points raised on behalf of the appellant in the case before us. We may, however, observe that we agree with the High Court that the proposition contained in Boosenna’s case, (1967) 3 SCR 871 = ( AIR 1967 SC 1550 = 1967 Cri L J 1398) (supra) must be confined to its own facts. (13) We find that the Excise Inspector who had deposed, at the very outset of his evidence, that he had put in 21 years service as Excise Inspector and had tested lacs of samples of liquor and illicit liquor. As already pointed out, the competence of C.D. Misra to test the composition and strength of the liquid under consideration was not questioned at all. We, therefore, think that this particular Excise Inspector could be treated as an expert within the meaning of Section 45 of the Evidence Act. The Excise Inspector had, in addition to employing the smelling test, used all the other tests he could reasonably adopt. If his competence to give his opinion or the sufficiency of the tests adopted by him had been questioned in the Trial Court, the prosecution would have been in a position to lead more evidence on these questions. We also find that the objects recovered from the possession of the appellant almost proclaim the nature of his activity and of the liquid which could be in his possession. On the facts and circumstances of this case, neither Boosenna’s case, (1967) 3 SCR 871 = ( AIR 1967 SC 1550 = 1967 Cri.LJ 1398) nor any other case would, we think, help the appellant. Consequently, we discuss this appeal and affirm the conviction and sentence of the appellant. The appellant should surrender to his bail and serve out the sentence.” (14) Following the decision of Supreme Court in the aforesaid case, Madhya Pradesh High Court also in case of Kallu Khan v. State of M.P., 1980 JLJ 509 has held that chemical examination of illicit liquor is not mandatory, it can be proved in any other manner relying upon the other tests. (15) Thus, on the basis of aforesaid discussion and following the decision of the Supreme Court in theabove referred case, it is held that test report submitted by Mukesh Agrawal, Excise Sub Inspector (PW 2) after holding the litmus and smell test identifying the liquor as intoxicant is clearly acceptable and Mr. Mukesh Agrawal, Excise Sub Inspector can be treated as an expert within the meaning of Section 45 of the Evidence Act and the trial Court and the appellate court have not committed any illegality in accepting the said report, identifying the liquor as intoxicant. Answer to Question No.2 (16) In order to judge the correctness of the order, it would be profitable to notice Sections and 57-A of the Act, 1915, which read as under:- “Section-57. Report by Excise Officer –Where any Excise Officer below the rank of Collector makes any arrest, seizure or search under this Act, he shall, within twenty-four hours thereafter, make a full report of all the particulars of the arrest, seizure or search to his immediate official superior, and shall, unless bail be accepted under Section 59, take or send the person arrested, or the thing seized, with all convenient dispatch, to a Judicial Magistrate for trial or adjudication”. Section-57-A. Police to take charge of articles seized – An officer in charge of a police station shall take charge of and keep in safe custody pending the orders of a Magistrate or an Excise Officer, all articles seized under this Act which may be delivered to him, and shall allow any Excise Officer who may accompany such articles to the police station, or who may be deputed for the purpose by his superior officer, to affix his seal to such articles and to take samples of an from them. All samples so taken shall also be sealed with the seal of the officer in charge of the police station.” (17) Having noticed Sections 57 and 57-A of the Act of 1915, reverting back to the facts of the case it would appear that Section 57-A of the Act is not applicable to the facts of the present case as in the present case, admittedly and undisputedly, vide Ex.P-1 seizure made by the Station House Officer/ Incharge of the Police Station on 6.7.2002 from the applicant, and therefore, the contention made by applicant’s counsel, alleging contravention of Section 57 of the Act of 1915 has no force and hereby rejected. (18) Turning back to the applicability of Section 57-A of the Act, 1915, it would appear that in the instant case Station House Officer upon seizure of the country made liquor on 6.7.2002 vide Ex.P-1, and, thereafter sent it to the Excise Sub Inspector vide Ex.P-5 for examination, which reported vide Ex.P-2 on 13.07.2002, which was duly sealed and sent to the Excise Sub Inspector for analysis and reporting back after examination. (19) Coming back to the testimony of C.S. Netam (PW-3), no question was put to the said witness that it was not duly sealed and it has not been allowed to Excise Sub Inspector to take sample etc. During the course of hearing before both the courts below, no question have been raised in this regard and for the first time, this defence has been projected placing reliance under Section 57-A of the Act and, therefore, the said submission has no legs to stand, it is accordingly rejected. (20) It is well settled that scope of revision under Sections 397/401 of the Cr.P.C. is very limited. The trial Court as well as appellate Court have concurrently held that prosecution has succeeded in establishing the offence under Section 37(1)(a) of the Act of 1915 beyond reasonable doubt. After examining the said finding, this Court has reached to the conclusion that finding of fact recorded by both the courts below are based on evidence available on record. Once the finding of fact based on evidence available on record, this Court in excise of its revisional jurisdiction would not interfere with the finding of fact so arrived into. (21) As a fall out and consequence of the aforesaid discussion, the revision deserves to be and is hereby dismissed. Once the finding of fact based on evidence available on record, this Court in excise of its revisional jurisdiction would not interfere with the finding of fact so arrived into. (21) As a fall out and consequence of the aforesaid discussion, the revision deserves to be and is hereby dismissed. (22) The applicant is reported to be on bail. His bail bonds are forfeited. The applicant is directed to surrender to serve out the remaining sentence.