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2016 DIGILAW 678 (ORI)

Tapan Sahu v. State of Orissa

2016-08-23

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. This is an application under section 401 read with section 397 of the Cr.P.C. filed by the petitioner Tapan Sahu challenging the impugned order dated 17.11.2016 passed by the learned S.D.J.M., Berhampur in G.R. Case No.602 of 2006 in taking cognizance of offences under sections 272/273/34 of the Indian Penal Code and section 47(a) of the Bihar and Orissa Excise Act. The said case arises out of Berhampur Town P.S. Case No.120 of 2006. 2. The prosecution case, as per the First Information Report lodged by one Prananath Nayak, A.S.I. of Police, Berhampur Town Police Station before the Inspector in charge of Berhampur Town Police Station on 15.05.2006 is that on that day at about 8.15 p.m. while he and havildar R.N. Patra and C/261 R.N. Panda were performing evening patrolling duty at Gandhi Nagar, 10th line, they found one person was moving in a scooter bearing registration No.OR-L-2128 in a high speed towards Gandhi Nagar Canal Sahi. Suspecting the movement of the said person, the informant and other police officials caught hold of him and found that he was carrying 10 liters of I.D. liquor in a plastic jerkin inside a jerry bag and he could not produce any authority or licence relating to the possession of such liquor and disclosed his name as China Ravi. The liquor was seized from the possession of the said accused and seizure list was prepared and sample was collected in a clean and dry bottle. During inquiry, it was ascertained by the informant from the said co-accused China Ravi that he was transporting the liquor to different places which he had procured from the petitioner. 3. On the basis of such First Information Report, Berhampur Town P.S. Case No.120 of 2006 was registered under sections 272/273 of the Indian Penal Code and section 47 (a) of the Bihar and Orissa Excise Act against China Ravi and the petitioner. The Inspector in charge after registration of the case directed Laxman Sethi, A.S.I. of Police to take up investigation who completion of investigation submitted charge sheet under sections 272/273/34 of the Indian Penal Code and section 47 (a) of the Bihar and Orissa Excise Act against the FIR named accused persons showing the petitioner as an absconder and accordingly, cognizance of offences was taken. 4. Learned counsel for the State produced the case diary. 4. Learned counsel for the State produced the case diary. From the materials available on record, it appears that the I.D. liquor was seized from the possession of co-accused China Ravi, who was carrying the same in a scooter and the entire case against the petitioner is based on confessional statement of the said co-accused. During course of investigation, the house of the petitioner was searched and the petitioner was found absent and no incriminating materials were found during the house search. It further appears that the seized liquor sample was sent for chemical analysis but the chemical analysis report is not available on record and charge sheet was submitted by the investigating officer without showing the result of the chemical analysis. 5. Section 272 of the Indian Penal Code deals with punishment for adulteration of food or drink intended for sale. In order to attract the ingredients of offence under section 272 of the Indian Penal Code, the following ingredients are required to be satisfied:- (i) the article involved was food or drink meant to be consumed by the live persons; (ii) the accused adulterated it; (iii) such adulteration rendered the food or drink as noxious; and (iv) the accused adulterated it with intention to sell such article as food or drink or knew it to be likely that such article would be sold as food or drink. Section 273 of the Indian Penal Code deals with punishment for sale of noxious food or drink. The following ingredients are required to be satisfied:- (i) selling or offering or exposing for sale as food or drink some article; (ii) such article must have become noxious or must be in a state unfit for food or drink.; (iii) the sale or exposure must have been made with a knowledge or reasonable belief that the article is noxious as food or drink. “Noxious” means making the food or drink as poisonous or harmful or both and thereby unfit for human consumption. Mere possession or storage of noxious food or drink would not attract the ingredients of offence under section 273 of the Indian Penal Code unless it is sold or offered or exposed for sale having knowledge or reason to believe that food or drink has become noxious. Mere possession or storage of noxious food or drink would not attract the ingredients of offence under section 273 of the Indian Penal Code unless it is sold or offered or exposed for sale having knowledge or reason to believe that food or drink has become noxious. In absence of any criminal analysis report or any other material available on record that the seized I.D. liquor was adulterated and made as noxious, the ingredients of both these offences are not satisfied. 6. The I.D. liquor was seized from the possession of co-accused China Ravi and no other incriminating materials were found during the house search of the petitioner. Except the confessional statement of co-accused China Ravi, which is not substantive evidence and has got only a corroborative value, there is no other material available on record against the petitioner. Therefore, I am of the view that the impugned order dated 17.11.2006 passed by the learned S.D.J.M., Berhampur in G.R. Case No. 602 of 2006 in taking cognizance of offences under sections 272/273/34 of the Indian Penal Code and section 47(a) of the Bihar and Orissa Excise Act and issuance of process against the petitioner is not sustainable in the eye of law which is accordingly quashed. In the result, CRLREV petition is allowed.