Ramautar vs State Of U.P.
2017 Latest Caselaw 3812 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 
Reserved on 10.08.2017.
 
Delivered on 30.08.2017.
 

 
Case :- CRIMINAL APPEAL No. - 1882 of 2010
 

 
Appellant :- Ramautar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- In Person (G.A.),T.N. Tiwari
 

 

 
Sessions Trial No.1048 of 2009, Crime No.192 of 2009, under Section 60 Excise Act and Section 272 I.P.C., Police Station Kakori, District Lucknow.
 

 
Hon'ble Satya Narain Agnihotri,J.

1. Heard Sri T.N. Tiwari, learned Amicus Curiae for the appellant and learned A.G.A. for the State.

2. Instant appeal has been directed against the judgment and order dated 25.1.2010 passed by learned Additional Sessions Judge/Fast Track Court VIII, Lucknow in Sessions Trial No.192 of 2009, under Section 60 Excise Act and Section 272 of Indian Penal Code, Police Station Kakori, District Lucknow, whereby learned Additional Sessions Judge/Fast Track Court VIII, Lucknow held guilty to the accused appellant and sentenced him under Section 272 I.P.C. with 10 years rigorous imprisonment and fine of Rs.5000/- and under Section 60 Excise Act with one year rigorous imprisonment and fine of Rs.1,000/- with the stipulation that both the sentence shall run concurrently.

3. For disposal of this appeal, the facts of the case in nutshell are as under;

On 27.3.2009 on tip of Sub-Inspector Ramkripal with the aid of other police officials nabbed the accused appellant near Dubagga Jehta tricrossing at about 16.30 O'clock with a plastic can containing 10 liters illicit wine, one liter from which was extracted and sample was prepared for chemical examination from Forensic Science Laboratory and rest 9 liters was sealed in the plastic can which was recovered from the accused appellant. Later on, recovery memo was prepared, formal F.I.R. was registered and the illicit recovered wine was kept in Malkhana of the police station.

4. In his statement under Section 313 Cr.P.C., the accused appellant denied the allegations levelled by the prosecution and stated that he has falsely been implicated.

5. To prove the guilt of the accused appellant, prosecution examined P.W.-1 Ram Kripal Singh complainant, P.W.-2 Constable Srikant Pandey, P.W.-3 Constable Subedar Verma, P.W.-4 S.I. Banke Bihari Singh and P.W.-5 Mahesh Narain, Scientist.

6. Before entering into the merits of the case, it would be useful to discuss the summary of the witnesses examined by the prosecution.

7. P.W.-1 Ram Kripal Singh, Sub Inspector (complainant) proved that on 27.3.2009 at about 4.30 P.M. he along with other police officials arrested the accused appellant with a plastic can containing 10 liters illicit wine at Dubagga tricross. He further proved that one liter illicit wine was extracted from the plastic can for chemical examination and sample was prepared while 9 liters remaining illicit wine was sealed in the aforesaid plastic can which was recovered from the accused appellant. P.W.-1 further stated that to ascertain the nature of liquid he sniffed the same and found that urea had been mixed in the said liquid and it was illicit wine. The recovered illicit wine was produced at the time of examination of P.W.-1 and the same was proved by him as Material Exhibit 1, 2 and 3. The witness further proved that the recovery memo was prepared on the spot which was signed by him and other police officials and thumb impression of the accused appellant was also taken. The recovery memo Exhibit Ka-1 is on the record.

8. P.W.-2 Srikant Pandey supported the statement of P.W.-1 and proved that when he sniffed the recovered liquid it was found that it is wine. He further stated that accused failed to show any authority to keep wine with him.

9. P.W.-3 Subedar Verma is formal witness who proved that on submission of recovery memo he registered formal F.I.R. Exhibit Ka-2 and this fact was entered in the General Diary which is Exhibit Ka-3.

10. P.W.-4 Banke Bihari Singh, S.I. is Investigating Officer and is witness of formal nature who proved that he had investigated the matter, visited the place of occurrence, prepared site plan Exhibit Ka-4, sent the sample of recovered liquid for chemical examination and after receiving the report of Forensic Science Laboratory it was found that urea was mixed in the recovered liquid.

11. P.W.-5 Mahesh Narain, Scientist, Forensic Science Laboratory, Lucknow proved that on 9.4.2009 he examined the liquid which was sent for examination by the Police Station Kakori and found that there was 20.1% alcohol in it and urea was mixed which is harmful for health and drinking of it may cause death.

12. To appreciate the evidence of the prosecution, it will be beneficial to reproduce Section 272 of Indian Penal Code (U.P. State amendment), 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 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 for life."

13. From a bare reading of Section 272 of I.P.C. it is clear that said section is attracted when a person adulterates an article of food or drink with the intention to sell such an article or knowing that it is likely that the article will be sold as food or drink. Thus to prove the guilt of the accused appellant under Section 272 I.P.C. it is obligatory on the part of the prosecution to prove that illicit material which was recovered from the accused appellant was kept for sale.

14. In the present case, P.W.-1 and P.W.-2, who are witnesses of fact, have not deposed in their statement that the appellant accused was carrying the illicit liquor for selling it to general public and for human consumption. Thus the prosecution fails to prove that accused appellant was carrying illicit wine with him for selling or he was in the knowledge that it would be sold for human consumption.

15. P.W.-5 Mahesh Narain, Scientist although proved that drinking of recovered illicit liquor may cause death but the prosecution has failed to prove that article sent for chemical examination was recovered from the accused appellant.

16. P.W.-1 and P.W.-2 nowhere deposed that the sample was extracted from the plastic can which was containing illicit liquor at the spot or any where else though in Exhibit Ka-1 it has been scribed that one liter sample of illicit wine was extracted at the spot from the container containing 10 liters illicit wine. Thus these two witnesses do not prove the fact that sample was prepared on the spot or any where else. In these circumstances it cannot be presumed that sample which was sent for chemical examination was extracted from the container containing 10 liters illicit wine alleged to be recovered from the accused appellant.

17. P.W.-1 complainant Ram Kripal Singh and P.W.-2 Srikant Pandey both were cross-examined in the court and they were exhibited with container alleged to be recovered from the accused appellant with the positive question that this container contains only 50 milliliter liquid, the answer of said question was not given by these two witnesses of fact. They only said that it is a small quantity of illicit liquor but they could not dare to state that there is only 50 milliliter liquid in the container. Thus it is not proved beyond doubt that illicit liquor sent for chemical examination was recovered from the accused appellant as alleged by the prosecution. In the present case, occurrence took place on 27.3.2009 and P.W.-1 and P.W.-2 were examined on 1.12.2009 and 4.9.2009 respectively i.e. within a spell of 9 months. In nine months 9 liters liquor could not minify that too when the mouth of container was sealed and closed tightly. Both the witnesses did not disclose that container was either torn or punctured from anywhere. Thus the recovery from the accused appellant is doubtful.

18. In view of above discussion, I am of the opinion that prosecution fails to prove beyond doubt that 10 liters of illicit liquor was recovered from the accused appellant on the said date and time. The prosecution also fails to prove that sample which was sent for chemical examination to Forensic Science Laboratory, Lucknow was actually extracted from the illicit liquor alleged to have been recovered from the accused appellant.

19. In the circumstances aforesaid, the judgment and order of learned lower court dated 25.1.2015 is against the law and facts both and cannot be affirmed. Hence, the judgment of learned lower court datedc 25.1.2010 is hereby set-aside and the appeal is allowed. The accused appellant Ramautar is not found guilty of the charges framed against him and he is acquitted of the charges levelled against him. So he be released from jail forthwith if he is not wanted in any other case.

20. Office is directed to communicate this order to the learned Trial Court concerned for compliance at the earliest and to return the Trial Court record along with copy of this judgment. The case property relating to this case shall be disposed of as per Rules.

Order Date :- 30.08.2017

Rakesh

(S.N. Agnihotri, J)

Case :- CRIMINAL APPEAL No. - 1882 of 2010

Appellant :- Ramautar

Respondent :- State Of U.P.

Counsel for Appellant :- In Person (G.A.),T.N. Tiwari

Hon'ble Satya Narain Agnihotri,J.

Learned Amicus Curiae, Sri T.N. Tiwari and learned AGA present.

Perusal of the record shows that at the time of engagement of Sri T.N. Tiwari as Amicus Curiae, the order of remuneration is not being made. Therefore, it is being passed today.

Seeing the facts and circumstances of the case, it will be just and proper to give order to Senior Registrar of this Court to pay Rs.10,000/- remuneration to Sri T.N. Tiwari, Amicus Curiae who represented the accused and assist the Court.

Order Date :- 30.8.2017

Sarika