Jharkhand High Court
Bhut Hembram vs The State Of Jharkhand --- --- Opp. Party on 5 December, 2023
Author: Ambuj Nath
Bench: Ambuj Nath
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 978 of 2016
Bhut Hembram --- --- Petitioner
Versus
The State of Jharkhand --- --- Opp. Party
---
CORAM: Hon'ble Mr. Justice Ambuj Nath
---
For the Petitioner: Ms. Sharda Kumari, Amicus Curiae
For the O.P-State: Mr. Prabir Kr. Chatterjee, Spl.P.P.
---
08 / 05.12.2023 Petitioner-Bhut Hembram has filed this revision application against the
judgment dated 21.01.2016, passed by Shri Girish Chandra Sinha, Additional
Sessions Judge-I, Seraikella in Cr. Appeal No. 02/2014, whereby and wherein,
the learned Additional Sessions Judge-I, Seraikella dismissed the appeal of the
petitioner and upheld the judgment of conviction and order of sentence dated
20.12.2013, passed by Syed Matloob Hussain, Chief Judicial Magistrate,
Seraikella in G.R. No. 50/2005 arising out of Adityapur (R.I.T) P.S. Case No.
14/2005, holding the petitioner guilty of the offences under sections 272 and
273 of the Indian Penal Code and Section 47(a) of Excise Act and thereby
sentencing him to undergo R.I two month each for the offences under sections
272 and 273 of the Indian Penal Code. He was further sentenced to undergo R.I
for one year for the offence under section 47 of the Excise Act along with a fine
of Rs. 1,000/-. In default of payment of fine, he was further sentenced to
undergo S.I for two months. Both the sentences were ordered to run
concurrently.
2. Prosecution case was instituted on the basis of self statement of the
Informant Sadanand Singh, Officer-in-charge of R.I.T Police Station, alleging
therein that on 12.01.2005, he was on law and order duty. When he reached
near Banta Nagar, he received confidential information that co-accused Pathar
Mukhi had kept illicit liquor in his house and some persons were consuming
liquor there. On the basis of this information, house of Pathar Mukhi was
raided. On search, 35 litres of country made liquor was recovered from there.
Subsequently, on the same day, house of the petitioner Bhut Hembram was also
raided and 35 litres of country made liquor was also recovered from there.
3. In order to prove its case, prosecution has adduced both oral and
documentary evidences. Learned Trial Court as well as the learned Appellate
Court have come to a concurrent finding regarding the guilt of the petitioner.
4. Informant Sadanand Singh has been examined as P.W-1. He has
supported the prosecution case. He has stated that on 12.01.2005, house of the
petitioner was raided. On search, 35 litres of country made liquor was
recovered from his house. He has proved the written report, which is Ext.-1. He
has also proved the seizure list leading to recovery of illicit liquor from the
place near Banta Nagar, which are Ext.-2 series. In his cross-examination, he
has stated that he cannot say, whether the seized liquor was sent for chemical
examination or not.
5. Vashisth Ravidas has been examined as P.W-3. He was a member of the
raiding party. He has supported the prosecution case. On 12.01.2005, on the
basis of confidential information, house of Pathar Mukhi and this petitioner was
raided. On search, 35 litres each, country made liquor were recovered from
both the places. In his cross-examination, this witness has stated that the seized
liquor was not measured. He has further stated that the seized liquor was not
examined in his presence.
6. Vipin Kumar Choudhary (P.W-2) is the Investigating Officer of this
case. He has proved the place of occurrence which is the house of the
Petitioner. He has stated that the seized liquor was sent for examination. Ext.-
3/1 is the report received from the Chemical Examiner, wherein it has been
mentioned that the seized liquor could not be chemically examined. However,
subsequently, there is endorsement of Chemical Examiner dated 24.06.2005 i.e.
after five months from the date of recovery, that the seized contraband smelled
like country made liquor.
7. Ms. Sharda Kumari, learned Amicus Curiae, appearing on behalf of the
petitioner, submitted that in order to prove that illicit country made liquor has
been recovered from the house of the accused, prosecution has to chemically
examine the seized liquor and report has to be adduced after chemical analysis
that the recovered contraband was illicit liquor. Reliance has been placed upon
the decision of the Patna High Court in the case of Dudhnath Yadav versus
State of Bihar reported in [1980 0 Supreme (Pat) 82]. Reliance has also been
placed upon decision of Punjab and Haryana High Court in the case of State of
Haryana versus Radhey shyam reported in [1977 Cr. L. J 528], wherein it
has been held that mere smell test and examination with the help of
Hydrometer is not conclusive that the seized contraband was illicit liquor.
8. In the present case, it has been reported that the seized contraband
smelled like liquor. This evidence is not conclusive to prove that 35 litres of
recovered contraband was country made liquor. Confirmatory test is chemical
analysis test. In absence of which, it cannot be said that country made liquor
was recovered from the house of this petitioner.
9. In view of the aforesaid facts, I am of the opinion that both the learned
Trial Court as well as the learned Appellate Court have come to an erroneous
finding regarding the guilt of the petitioner for the offences under section 47(a)
of the Excise Act and section 272 and 273 of the Indian Penal Code.
Accordingly, judgement of conviction and order of sentence passed by the
learned Trial Court, so affirmed by the learned Appellate Court, is set aside.
10. Accordingly, this revision application is allowed. Pending I.A., if any,
stands disposed of.
11. Before parting, I would like to record my appreciation for the valuable
assistance rendered by Ms Sharda Kumari, learned Amicus Curiae, during
course of hearing of this revision application. Member Secretary, JHALSA is
directed to pay Rs. 5,000/- to Ms. Sharda Kumari, by way of remuneration, for
her services rendered as an Amicus Curiae.
(Ambuj Nath, J)
Ranjeet/
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