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2021 DIGILAW 1272 (ALL)

Ram Shankar v. State Of U. P.

2021-10-26

PANKAJ BHATIA

body2021
JUDGMENT : 1. Heard Ms. Soniya Mishra learned counsel for the appellant and Sri Vivek Gupta, learned AGA for the State. 2. The present criminal appeal has been filed against the judgment and order dated 16.11.2016 passed by the learned Additional Sessions Judge, Court no.6 SC/ST Act, Lakhimpur Kheri in Sessions Trial No.527 of 2013 whereby the appellant has been convicted under section 60(2) of the Excise Act and sentenced for a period of one year along with fine of Rs.1000/-and further the appellant has been convicted under section 272 I.P.C. with sentence of ten years and a fine of Rs.10,000/-. 3. The facts, in brief, leading to the passing of the impugned judgment is that on 26.09.2010, an information was received by the S.I. Uttam Singh Rathaur and Vinod Kumar to the effect that one Rama Shanker was manufacturing illegal country liquor at his house. Based upon the said information, the said two persons left towards the house of Rama Shanker, on the way they convinced the strangers to become panch, which was refused by them. However, the said two persons went to the house of Rama Shanker wherein they saw that from the house smoke was coming out. On going into the house, they saw that one person sitting besides the stove (Chullha) which was on fire. On the said stove, two utensils made of mud were kept. On questioning, the said person disclosed his name as Rama Shanker aged about 45 years and from the spot 500 gms of Urea was recovered as well as country liquor which was being prepared was also recovered. It was recorded that in the statement given by Rama Shanker, he admitted that he used Urea for manufacture of the country liquor. A sample of the said liquor was drawn and was sent for forensic examination and the case was registered against the appellant. 4. During the trial, four witnesses were produced by the prosecution, two of whom were the part of the raiding party. In defense the appellant also produced two witnesses. PW-1 in his statement reiterated the version to the effect that on raiding the house of Rama Shanker, country liquor was recovered and he had admitted to adding Urea to the said country liquor. PW-2 also supported the raid. In defense the appellant also produced two witnesses. PW-1 in his statement reiterated the version to the effect that on raiding the house of Rama Shanker, country liquor was recovered and he had admitted to adding Urea to the said country liquor. PW-2 also supported the raid. The report of the Forensic Science Laboratory was also cited before the trial court, which was to the effect that from the sample sent and analyzed 3.4% alcohol was found and urea was also present in the said sample. Based upon the said evidence, the impugned judgment was passed holding the appellant guilty under section 272 I.P.C. as well as under section 60(2) of the Excise Act. 5. The counsel for the appellant argues that the judgment in question is bad in law for more than one reason. He argues from the entire evidence on record, even if admitted to be true, there was no averment or evidence to the effect that the manufactured liquor was intended for sale. He further argues that there is no material on record to suggest that adding of Urea makes the drink (in the present case country liquor) 'noxious'. He has placed the reliance of the provisions of section 272 I.P.C., which is as under: 272. Adulteration of food or drink intended for sale.- Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. The U.P. amendment to the said section is also as under : Uttar Pradesh -In section 272 for the words 'shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both" the following shall be substituted, namely:- "shall be punished with imprisonment for life and shall also be liable to fine: Provided that the court may, for adequate reason to be mentioned in the judgment, impose a sentence of imprisonment which is less than imprisonment to life." 6. In the light of the statutory provision, as quoted above, counsel for the appellant argues that there was no evidence whatsoever to the effect that the drink (in the present case country liquor), was rendered noxious by the use of Urea and further there was no material whatsoever to establish that there was any intent of selling the said manufactured liquor by the appellant so as to attract the rigour of section 272 IPC. He further argues that the appellant is in custody since 16.11.2016 after the judgment was given against him and had also suffered the custody during the trial of approximately one year. Thus, he argues that the appellant has already undergone six years of imprisonment and the appeal should be allowed on the sentence undergone. Counsel for the appellant places reliance on the two judgments of this Court in the case of Ashok vs. State of U.P. passed in Criminal Appeal No.5815 of 2019 decided on 05.01.2021 as well as in the case of the State vs Asgar and another passed in Government Appeal No.156 of 2019 decided on 19.08.2019. 7. Learned AGA Sri Vivek Gupta argues that 105 liter of country liquor was recovered from the possession of the appellant and thus, the punishment awarded is justified. He argues that the nature of the offence against the appellant is very serious and the acts done by the appellant is a crime against the whole society and no leniency needs to be shown towards the appellant and the appeal deserves to be dismissed. 8. After hearing the counsel for the parties this court raised a query to the learned AGA with regard to what was the material available before the trial court in the form of evidence to allege and establish that the country liquor seized from the possession of the appellant was intended for sale. After going through the entire judgment and the evidence referred, to leading to the conviction of the appellant by means of the impugned judgment, there is no whisper with regard to the intention of the appellant to sell the alleged country liquor. Even the recovery so made from the appellant do not point out to recovery of any packaging material in the form of bottles, labels etc. to demonstrate that the alleged country liquor was intended for sale. Even the recovery so made from the appellant do not point out to recovery of any packaging material in the form of bottles, labels etc. to demonstrate that the alleged country liquor was intended for sale. There is no evidence on record to establish that adding of Urea to the liquor would render the same noxious for human consumption. Although the word 'noxious' is not defined in the U.P. Excise Act or even in the I.P.C., the word 'noxious' on its plain reading means adding of a substance with an intent to make it poisonous or harmful. 9. Section 3(9) of the U.P. Excise Act defines 'denatured' to mean anything which is rendered unfit for human consumption in such manner as may be prescribed by the State Government by a notification on that behalf. The definition of word 'denatured' is as under : "Denatured"-"Denatured" means rendered unfit for human consumption in such manner as may be prescribed by the State Government by notification in this behalf. When it is proved that any spirit contains any quantity of any substance prescribed by the State Government for the purpose of denaturation the court may presume that such spirit is or contains or has been derived from denatured spirit. 10. To come to a conclusion that the liquor recovered from the possession of the appellant would fall within the definition of section 3(9) of the U.P. Excise Act, it had to be alleged and established that adding of Urea was contrary to the notification or that the said Urea was in excess of what was prescribed by any notification so as to render the country liquor as 'denatured'. There is no such material on record either before this Court or before the Trial Court to come to a conclusion that the liquor recovered was 'denatured'. In the absence thereof, it could not be said that the liquor so recovered was rendered 'noxious' for human consumption and further there is no material to implicate the appellant under section 272 of I.P.C. as there was no material to come to the conclusion that the said country liquor was intended for sale. In the absence of any material to demonstrate that the country liquor so recovered was rendered 'noxious'/'denatured' and was intended for sale, the conviction of the appellant under section 272 I.P.C. cannot be justified. In the absence of any material to demonstrate that the country liquor so recovered was rendered 'noxious'/'denatured' and was intended for sale, the conviction of the appellant under section 272 I.P.C. cannot be justified. However, the conviction of the appellant under section 60(2) of the U.P. Excise Act cannot be faulted with. In view of the evidence on record as the appellant has already undergone more than six years in imprisonment, the appeal is disposed off with direction that the appellant shall be released forthwith on the sentence already undergone. 11. Office is directed to send a copy of this judgment along with the lower court record to the court concerned forthwith for necessary information and compliance.