Patna High Court
Laljhari Devi @ Laljhari vs The State Of Bihar on 13 July, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
DEATH REFERENCE No.5 of 2021
Arising Out of PS. Case No.-347 Year-2016 Thana- GOPALGANJ TOWN District-
Gopalganj
======================================================
The State of Bihar
... ... Petitioner
Versus
1. Chhathu Pasi S/O Shiv Narayan Pasi Resident of Village - Khajurbani, P.S.
and District - Gopalganj.
2. Indu Devi W/O Shiv Narayan Pasi Resident of Village - Khajurbani, P.S. and
District - Gopalganj.
3. Munna S/O Shiv Narayan Pasi Resident of Village - Khajurbani, P.S. and
District - Gopalganj.
4. Ranjay Choudhary S/O Shiv Narayan Pasi Resident of Village - Khajurbani,
P.S. and District - Gopalganj.
5. Sanjay Choudhary S/O Shiv Narayan Pasi Resident of Village - Khajurbani,
P.S. and District - Gopalganj.
6. Rita Devi W/o Late Nandji Pasi Resident of Village - Khajurbani, P.S. and
District - Gopalganj.
7. Sanoj Pasi S/o Nandji Pasi Resident of Village - Khajurbani, P.S. and
District - Gopalganj.
8. Rajesh Pasi S/O Nandji Pasi Resident of Village - Khajurbani, P.S. and
District - Gopalganj.
9. Nagina Pasi S/O Gulab Chand Pasi Resident of Village - Khajurbani, P.S.
and District - Gopalganj.
10. Lal Babu Pasi S/o Gulab Pasi Resident of Village - Khajurbani, P.S. and
District - Gopalganj.
11. Kanhaiya Pasi S/O Bunni Pasi Resident of Village - Khajurbani, P.S. and
District - Gopalganj.
12. Laljhari W/o Bunni Pasi Resident of Village - Khajurbani, P.S. and District -
Gopalganj.
13. Kailasho Devi W/O Binda Pasi Resident of Village - Khajurbani, P.S. and
District - Gopalganj.
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 312 of 2021
Arising Out of PS. Case No.-347 Year-2016 Thana- GOPALGANJ TOWN District-
Gopalganj
======================================================
Chhathu Pasi @ Chhathu Chaudhary S/o Shiv Narayan Pasi Resident of
Village- Khajurbani, Ward No.25, P.O. and P.S.- Gopalganj, District-
Gopalganj.
... ... Appellant
Versus
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 350 of 2021
Arising Out of PS. Case No.-347 Year-2016 Thana- GOPALGANJ TOWN District-
Gopalganj
======================================================
1. Laljhari Devi @ Laljhari W/o late Bunni Pasi Resident of village -
Khajurbani, Ward No.25, P.S.- gopalganj (Town), Distt.- Gopalganj.
2. Kailasho Devi W/O Late Binda Pasi Resident of Village - Khajurbani, Ward
No.25, P.S.- Gopalganj (town), Distt.- Gopalganj.
3. Rita Devi W/O Late Nandji Pasi Resident of village - Khajurbani, Ward
No.25, P.S.- gopalganj (Town), Distt.- Gopalganj.
4. Indu Devi W/O Late Shiv Narayan Pasi Resident of village - Khajurbani,
Ward No.25, P.S.- gopalganj (Town), Distt.- Gopalganj.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 351 of 2021
Arising Out of PS. Case No.-347 Year-2016 Thana- GOPALGANJ TOWN District-
Gopalganj
======================================================
1. Nagina Pasi Son of Late Gulab Chand Pasi Resident of Village - Khajurbani,
Ward No. 25, Police Station - Gopalganj (Town), District - Gopalganj.
2. Lal Babu Pasi Son of Late Gulab Chand Pasi Resident of Village -
Khajurbani, Ward No. 25, Police Station - Gopalganj (Town), District -
Gopalganj.
3. Kanhaiya Pasi Son of Late Bunni Pasi Resident of Village - Khajurbani,
Ward No. 25, Police Station - Gopalganj (Town), District - Gopalganj.
4. Munna @ Munna Pasi Son of Late Shiv Narayan Choudhary Resident of
Village - Khajurbani, Ward No. 25, Police Station - Gopalganj (Town),
District - Gopalganj.
5. Ranjay Choudhary @ Ranjay Pasi Son of Late Shiv Narayan Pasi Resident
of Village - Khajurbani, Ward No. 25, Police Station - Gopalganj (Town),
District - Gopalganj.
6. Sanjay Choudhary @ Sanjay Pasi Son of Late Shiv Narayan Pasi Resident
of Village - Khajurbani, Ward No. 25, Police Station - Gopalganj (Town),
District - Gopalganj.
7. Sanoj Pasi Son of Late Nandji Pasi Resident of Village - Khajurbani, Ward
No. 25, Police Station - Gopalganj (Town), District - Gopalganj.
8. Rajesh Pasi Son of Late Nandji Pasi Resident of Village - Khajurbani, Ward
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
No. 25, Police Station - Gopalganj (Town), District - Gopalganj.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In DEATH REFERENCE No. 5 of 2021)
For the Petitioner/s : Mr.
For the Respondent/s : Mrs. Soni Shrivastava, Amicus Curiae
(In Criminal Appeal (DB) No. 312 of 2021)
For the Appellant/s : Mr.Vikas Ratan Bharti, Adv.
For the Respondent/s : Mr.Ajay Mishra
(In Criminal Appeal (DB) Nos. 350 & 351 of 2021)
For the Appellant/s : Mr. Kanhaiya Prasad Singh, Sr. Adv.
Mr. Pratik Mishra, Adv.
Mr. Sushil Kumar, Adv.
For the Respondent/s : Mr.Ajay Mishra, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
Date : 13-07-2022
These three appeals arise out of a common
judgment of conviction and order of sentence dated 26.02.2021
and 05.03.2021 respectively passed by the learned Additional
District & Sessions Judge-II-cum-Special Judge (Excise Act),
Gopalganj in Sessions Trial No. 967 of 2016 arising out of
Gopalganj P.S. Case No. 347 of 2016 whereby and whereunder
the appellants have been convicted and sentenced to undergo
R.I. for six months and fine of Rs.1,000/- each and in default of
payment of fine further simple imprisonment for one month for
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
the offences under Section 272 of the Indian Penal Code (for
short 'IPC'), R.I. for six months and fine of Rs.1,000/- each and
in default of payment of fine further simple imprisonment for
one month for the offence under Section 273 of the IPC, R.I. for
seven years and fine of Rs.20,000/- each and in default of
payment of fine further simple imprisonment for six months for
the offence under Section 308 of the IPC and R.I. for life and
fine of Rs.10,000/- each and in default of payment of fine
further simple imprisonment for one year for the offence under
Section 30(a) of the Bihar Prohibition and Excise Act, 2016 (for
short 'Excise Act, 2016'). The appellants Nagina Pasi, Lal Babu
Pasi, Kanhaiya Pasi, Munna Chaudhary, Ranjay Choudhary,
Sanjay Choudhary, Sanoj Pasi, Rajesh Pasi and Chhathu Pasi
have been sentenced to death and fine of Rs.10 lakhs each for
the offence under Section 34(a)(b)(i) of the Excise Act, 2016.
The appellants Laljhari Devi, Kailasho Devi, Rita Devi and Indu
Devi have been sentenced to R.I. for life and fine of Rs.10 lakhs
each and in default of payment of fine further simple
imprisonment for one year under Section 34(a)(b)(i) of the
Excise Act, 2016. It has been directed by the Trial Court that all
the sentences shall run concurrently and the period undergone in
jail custody shall be set off from the total period of sentence.
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
2. The death sentence awarded by the Trial Court to
the appellants Nagina Pasi, Lal Babu Pasi, Kanhaiya Pasi,
Munna @ Munna Pasi, Ranjay Choudhary @ Ranjay Pasi,
Sanjay Choudhary @ Sanjay Pasi, Sanoj Pasi and Rajesh Pasi
(appellants in Cr. Appeal (DB) No. 351 of 2021) and Chhathu
Pasi @ Chaudhary (appellant in Cr. Appeal (DB) No. 312 of
2021) is subject to confirmation by the High Court. The
reference made by the Trial Court under Section 366 of the
Code of Criminal Procedure (for short 'Cr.P.C') has been
separately registered as Death Reference No. 5 of 2021.
3. Since the appeals and the reference arise out of a
common judgment of conviction and order of sentence, they
have been heard together and are being disposed of by common
judgment.
4. The first information report (for short 'FIR') is
based on the self-statement of one B. P. Alok, Police Inspector
and S.H.O. of Town Police Station, Gopalganj recorded on
17.08.2016 at 10:15 PM. The self-statement of the informant
reveals that on 16.08.2016 at 11:00 PM he along with other
police officials had proceeded from the police station in a
government vehicle for special raid in the night. On 17.08.2016
at 00:10 AM he received a confidential information that some
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
persons are rushing to the Sadar Hospital, Gopalganj with
complain of recurrent bouts of vomiting and are being treated in
critical condition and probably some of them have died and
some others have been referred to other places for better
treatment. He informed his superior officers and reached the
Sadar Hospital, Gopalganj. He found one Bandhu Ram being
treated for recurrent bouts of vomiting, abdominal pain and
suffocation in the hospital. On inquiry, Bandhu Ram revealed
that Chathu Pasi, Kanhaiya Pasi, Laljhari Devi, Nagina Pasi,
wife of late Binda Pasi, Lal Babu Pasi, Rajesh Pasi, Sanoj Pasi,
Rita Devi wife of late Nandji Pasi, Grahan Pasi, Indu Devi wife
of late Shiv Narayan Pasi, Sanjay Choudhary, Ranjay
Choudhary and Munna Choudhary, all residents of village
Khajurbani, Ward No. 25, P.S. Gopalganj are indulged in illicit
trade of liquor. They mix Mahua, Mitha and Naushadar for
preparing illicit liquor at their house, Dalan and other places and
sale it. He stated that his health as well as health of some other
persons started deteriorating after consuming spurious liquor.
He disclosed that some of them have been referred to other
places for better treatment. In order to verify the aforesaid
disclosure made by Bandhu Ram, he and other police officials
left for the village- Khajurbani at 02:00 AM. At about 02:20
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
AM, he raided the house of Chhathu Pasi, which allegedly led to
recovery of 30-litre illicit country made liquor mixed with
Mahua, Mitha and Naushadar kept in two gallons from the south
of the courtyard of his house, 8 bottles each containing 180 ml
with label 'for sale in U.P. only' in the brand name of '8PM'
from a room adjacent to the courtyard. In further search, 75-litre
country made liquor made of Mahua, Mitha and Naushadar kept
in five jars of 15-litre each beneath the earth from the Dalan of
Chhathu Pasi and 30-litre spurious liquor made of Mahua, Mitha
and Naushadar from an open space adjacent to the house of
Chhathu Pasi was recovered whereafter Chhathu Pasi was
detained and interrogated. He confessed that he is indulged in
the trade of illicit liquor. The alleged search and seizure were
made in presence of two independent witnesses, namely, Paltu
Kumar and Swaminath Sah. Accordingly, search and seizure list
were prepared and Chhathu Pasi was taken into custody.
5. Subsequently, the house of Kanhaiya Pasi was
raided, but he managed to escape. However, his dwelling house
was duly searched in the presence of independent witnesses,
which led to recovery of 4 plastic gallons each containing 15-
litre illicit liquor from beneath the earth from the courtyard and
8 plastic gallons each containing 15-litre illicit liquor mixed
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
with Mitha, Mahua and Naushadar from beneath the earth from
an open space adjacent to the house of Kanhaiya Pasi. Also,
135-litre illicit liquor mixed with Mahua, Mitha and Naushadar
kept in 9 plastic jars of 15-litre each and 100 kg remains of
sugar mill kept in gunny bag were recovered from his Dalan.
Accordingly, search and seizure list were prepared in presence
of two independent witnesses, who put their signature over it.
6. After that, the house of Nagina Pasi was raided,
which led to recovery of 30-litre of poisonous liquor made of
Mahua, Mitha, Nausadar kept in two plastic gallons. On seeing
the police party, one person started running away. The police
party chased him, but he managed to escape. During search of
his house from the verandah 30-litre spurious liquor mixed with
Mahua, Mitha and Naushadar kept in two plastic jars of 15-litre
each was recovered. On inquiry, no body offered any
satisfactory explanation. Accordingly, in presence of witnesses
to the seizure, a search and seizure list was prepared. The
witnesses revealed that the person, who managed to escape, was
Nagina Pasi. A search was also conducted at the Dalan of the
house of Nagina Pasi which was situated on the bank of the
river which led to recovery of a yellow plastic bag containing 24
empty bottles of Thuja 30 (a homeopathic medicine) with a
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
written note thereon "alcohol contain 91% prepared according
to USHP, STANDARD, HOMEOPATHIC LABORATRY- 07,
Buro Shistala Road, Kolkata". Further, 70 litre-illicit liquor kept
in plastic gallons beneath the earth was recovered from a nearby
field, which was also seized in accordance with law.
7. Consequently, the semi constructed house of
Grahan Pasi was raided. On seeing the police party, one person
started running away. Though the police party tried to
apprehend him, he managed to escape. He was later identified as
Grahan Pasi. During search of his house, two gallons of illicit
liquor containing 15-litre each were recovered from beneath the
earth. Accordingly, search and seizure list were prepared in
presence of two independent witnesses, who put their signature
over it.
8. Thereafter, the house of Lal Babu Pasi was raided.
On seeing the police party, one person started fleeing away. The
police party tried to apprehend him, but he managed to escape.
On search made in the house of Lal Babu Pasi in presence of
independent witnesses, 45-litre of illicit liquor kept in three
gallons of 15-litre each was recovered. Accordingly, search and
seizure list were prepared in this regard.
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
9. Subsequently, the house of Sanjay Pasi was raided.
On search, the police party recovered 30-litre of illicit liquor
mixed with Mahua, Mitha and Naushadar kept in two plastic
jars of 15-litre each and four bottles of 'Royal Stag' English
Wine, each containing 180 ml and bearing a label "for sale in
U.P. only". One person was arrested from the house, who
disclosed his name as Sanjay Pasi and confessed regarding
manufacturing and selling of spurious liquor. A search and
seizure list was prepared in the presence of independent
witnesses, who put their signature over it.
10. After that, the house of Rajesh Pasi was raided and
30-litre illicit liquor kept in two gallons of 15-litre each mixed
with Mahua, Mitha and Naushadar were recovered. One person
was detained, who disclosed his name as Rajesh Pasi. He
admitted to have manufactured illicit liquor. He also admitted
that he is engaged in the trade of illicit liquor. Accordingly, a
search and seizure list was prepared in presence of two
independent witnesses, who put their signature over it.
11. Consequently, the house of Mukesh Pasi was
raided from where 30-litre of illicit liquor kept in two gallons of
15-litre each mixed with Mahua, Mitha and Naushadar was
recovered. The witnesses present there revealed that the illicit
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
liquor was being prepared and sold by the wife of late Binda
Ram. Accordingly, search and seizure list were prepared in
presence of two independent witnesses, who put their signature
over it.
12. The self-statement of aforesaid B.P. Alok further
disclosed that six persons, namely, Chhathu Pasi, Ranjay Pasi,
Sanjay Pasi, Munna Pasi, all sons of Sheo Narayan Pasi, Rajesh
Pasi and Sanoj Pasi both sons of late Nandji Pasi were
apprehended by the police party while the raid was conducted in
various houses situated at village Khajurbani. It further
disclosed that apart from the aforesaid six apprehended accused
persons, Kanhaiya Pasi, Laljhari Devi wife of late Bunni Pasi,
Nagina Pasi, wife of late Binda Pasi, Rita Devi wife of late
Nandji Pasi, Grahan Pasi son of late Sheo Narayan Pasi, Indu
Devi wife of late Sheo Narayan Pasi, all resident of village
Khajurbani in the district of Gopalganj were involved in illicit
trade of liquor.
13. On the basis of the aforesaid self-statement, B. P.
Alok, the Police Inspector and S.H.O. of Gopalganj Town Police
Station drew formal FIR under Sections 272 and 273 of the IPC,
Section 47(a) of the Excise Act and Section 57 of the Bihar
Excise Amendment Act, 2018 on 18.08.2016 at 09:30 AM. He
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
handed over the investigation of the case to Nigam Kumar
Verma, a Police Inspector of Gopalganj Sadar Police Station.
14. The Investigating Officer submitted charge-sheet in
the case vide Charge-Sheet No. 511 of 2016 dated 14.10.2016
after completion of investigation under Sections 272, 273, 420
and 308 of the IPC and Section 47(a) and Section 57 of the
Bihar Excise Amendment Act against the appellants.
15. Upon receipt of the police report (charge sheet)
under Section 173(2) of the Cr.P.C, the learned Chief Judicial
Magistrate, Gopalganj took cognizance of the offences against
the appellants vide order dated 19.10.2011.
16. After complying with the statutory requirements of
Section 207 of the Cr.P.C, the learned Chief Judicial Magistrate,
Gopalganj committed the case to the court of Sessions vide
order dated 02.12.2016.
17. Thereafter, the Trial Court framed charges under
Sections 272, 273 and 308 of the IPC and Sections 34(a), 34(b)
and 30(a) of the Excise Act, 2016 against the appellants. Since
the appellants denied the charges, they were put on trial.
18. In support of the charges, the prosecution examined
altogether seven witnesses. They are B. P. Alok (P.W.1), Rakesh
Kumar Singh (P.W.2), Manish Kumar (P.W.3), Dhiraj Kumar
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
(P.W.4), Amit Kumar Singh (P.W.5), Shailendra Kumar Singh
(P.W.6) and Nigam Kumar Verma (P.W.7). Out of the aforesaid
seven witnesses, P.W.1 is the informant, P.Ws. 2, 3, 4 and 6 are
police constables, P.W.5 is the Sub-Inspector of Gopalganj Town
Police Station and P.W.7 is the Investigating Officer of the case.
19. The prosecution has also proved the following
documents during trial:
1. Exhibit - 1 Search and seizure list with respect to
recovered articles from the house of Chhathu
Pasi
2. Exhibit -1/A Search and seizure list with respect to
recovered articles from the house of Kanhaiya
Pasi
3. Exhibit -1/B Search and seizure list with respect to
recovered articles from the house of Nagina
Pasi
4. Exhibit -1/C Search and seizure list with respect to
recovered articles from the Dalan of Nagina
Pasi and the open space adjacent to his house
5. Exhibit -1/D Search and seizure list with respect to
recovered articles from the semi constructed
house of Grahan Pasi
6. Exhibit -1/E Search and seizure list with respect to
recovered articles from the house of Lal Babu
Pasi
7. Exhibit -1/F Search and seizure list with respect to
recovered articles from the house of Sanjay
Pasi
8. Exhibit -1/G Search and seizure list with respect to
recovered articles from the house of Rajesh
Pasi
9. Exhibit -1/H Search and seizure list with respect to
recovered articles from the house of Mukesh
Pasi
10. Exhibit -2 Self-statement of the informant B. P. Alok
11. Exhibit -2/A Formal FIR
12. Exhibit -2/B Endorsement made on self-statement
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
13. Exhibit -3 Confessional statement of Nagina Pasi
14. Exhibit -3/1 Confessional statement of Lal Babu
Chaudhary
15. Exhibit -4 F.S.L. Report
16. Exhibit -5 Charge-sheet no.1 of 2017 of Gopalganj Town
P.S. Case No.348 of 2016 dated 18.08.2016
17. Exhibit -5/1 Charge-sheet no.590 of 2016 of Gopalganj
Town P.S. Case No.348 of 2016 dated
18.08.2016
18. Exhibit -6 FIR of Gopalganj Town P.S. Case No.348 of
2016 dated 18.08.2016
20. Mr. B.P. Alok (P.W.1), the informant of the case
stated in his examination-in-chief that on 16.08.2016 he was
posted as S.H.O. of Gopalganj Town Police Station. On that
date, he along with other police officials proceeded for raid in
the night at about 00:10 AM. He received information that some
people had fallen critically ill after consumption of illicit liquor
and were being treated at the Sadar Hospital, Gopalganj and
some of them had also died. At that time, S.I. Amit Kumar
Singh (P.W.5), Shailendra Kumar Singh (P.W.6), Rakesh Kumar
Singh (P.W.2), Sudhir Kumar (not examined) and others were
accompanying him. He went to the Sadar Hospital, Gopalganj
along with them. At the Sadar Hospital, he found Bandhu Ram
(not examined) and others being treated. Bandhu Ram told him
that today itself he had taken liquor at the house of Kanhaiya
Pasi as a result of which his health deteriorated and he came to
the hospital. He further disclosed him that besides him several
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
others had fallen ill after consumption of spurious liquor being
sold by Chhathu Pasi, wife of Binda Pasi, Laljhari Devi, Grahan
Pasi, Nagina Pasi and others at their respective houses. On such
information, he along with other police personnel went to the
village Khajurbani after informing the superior police officers.
He raided the house of accused persons and recovered huge
quantity of liquor from their respective houses. He stated that
liquor was hidden beneath the earth and Thuja medicine was
recovered from the house of Nagina Pasi. Some bottles of
foreign liquor were also recovered. Separate seizure lists were
prepared for the seizures made from different houses in presence
of two independent witnesses, namely, Paltu Kumar and
Swaminath Sah. He proved the writings made on the seizure
lists and his own signature. The seizure lists were marked as
Exhibits-1, 1/A, 1/B, 1/C, 1/D, 1/E, 1/F, 1/G and 1/H. He stated
that at the time of initial raid, six persons were apprehended. He
recorded his self-statement at the place of occurrence itself. He
proved his writing on the self-statement, which was marked as
Exhibit-2. He proved his writing and signature on the formal
FIR, which was marked as Exhibit- 2/A. He also proved his
signature and endorsement made on the formal FIR, which was
marked as Exhibit-2/B. He stated that pagination was also done
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
by him on Exhibit-2. According to him, several persons had died
in the Sadar Hospital due to the consumption of spurious
alcohol by them for which a separate case was registered.
21. In cross-examination, he admitted that though
Bandhu Ram had taken alcohol at the house of Kanhaiya Pasi,
his breath analyzer test was not conducted. He admitted that
Khajurbani village is densely populated. However, at the time of
raid no person of the village came forward at the place of
occurrence. He stated that the seizure list witnesses were present
at the place of occurrence itself. He admitted that no FIR was
registered against Bandhu Ram for consumption of liquor.
Though he stated that when he went to the village Khajurbani
and raided the house of Chhathu Pasi first, he admitted that he
had no prior knowledge about the location of the house of
Chhathu Pasi. He failed to tell the name of person/ persons from
whom he came to know about the house of Chhathu Pasi. He
admitted that the house of Chhathu Pasi had no door. He could
not say the exact time when the search operation was
completed. He admitted that he had not recorded his self-
statement prior to the search and seizure made by him. He
further admitted that huge quantity of liquor was also found
from outside the house of the accused persons. He also admitted
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
that there were several persons present in the house from where
six of the accused persons were arrested on the date of
occurrence. He denied the defence suggestion that no seizure of
any article was made from the house of the accused persons
rather the articles were seized from the open space. He admitted
that he cannot identify the persons whom he had arrested. He
further admitted that he cannot explain the boundary of the
houses in which search and seizure was made. He also admitted
that he cannot say the exact time when raids were conducted in
the houses of the accused persons. He stated that Thuja
medicine was recovered from the house of Nagina Pasi and
from the bank of river near the field.
22. Rakesh Kumar Singh (P.W.2), a constable, stated
in his evidence that at the relevant time he was posted at
Gopalganj Town Police Station. On that day he was on duty
along with the S.H.O. B.P. Alok, who had received information
that some persons have been admitted in the hospital. Hence,
along with others, he reached the hospital where Bandhu Ram
disclosed that he had taken wine at Khajurbani village due to
which he became ill. He further disclosed that apart from him,
others are also being treated at Sadar Hospital and some of
them have died. Thereafter, he along with B.P. Alok and others
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
went to Khajurbani village where raids were conducted in
several houses. During the raid conducted in the houses and
outside the houses poisonous alcohol was recovered.
Accordingly, seizure lists were prepared in presence of
Swaminath Sah and Paltu Kumar and six persons were arrested
by the police party.
23. In his cross-examination, he admitted that when he
reached the hospital, Bandhu Ram was critically ill and was
being treated. He did not see any other person being treated at
the hospital. He further admitted that Khajurbani is a large
village and is densely populated. He stated that he cannot
identify the accused persons, who were arrested at the spot and
whose houses were searched on the day. He clearly admitted
that he cannot say what was recovered from which house. He
denied the defence suggestion that nothing was recovered from
the house of the accused persons.
24. Manish Kumar (P.W.3), a constable, stated in his
evidence that on 16.08.2016 he was posted at Gopalganj Town
Police Station. On that date, he was on patrolling duty in the
night near the Post Office Chowk. The Police Inspector received
an information that after taking wine at village Khajurbani some
people have suffered recurrent bouts of vomiting and are
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
admitted in the hospital. On such information, he along with
others reached at the Sadar Hospital, Gopalganj where some
persons were being treated and some others had been referred to
other places for better treatment. He stated that some persons
had already died. He stated that the Police Inspector talked to
Bandhu Ram, who was undergoing treatment. He disclosed that
after consumption of alcohol at village Khajurbani his health
deteriorated. Thereafter, the police party went to the Khajurbani
village where houses of Chhathu Pasi, Grahan Pasi, Nagina
Pasi, Sanjay Pasi, Kailasho Devi, Laljhari Devi and Rita Devi
were raided and huge quantity of country made wine, English
wine and homeopathic medicine were recovered. Accordingly,
the seizure list was prepared separately for the recovered wine
and other articles. He stated that six persons were arrested
during raid.
25. In cross-examination, he stated that the police party
had arrived in the village Khajurbani at 01:30 AM. He stated
that he cannot say the name of the persons, who were being
treated at the Sadar Hospital except the name of Bandhu Ram.
He further admitted that he does not know the name of the
persons, who had died after consumption of illicit liquor. He
admitted that Khajurbani is a densely populated village.
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
According to him the house of Nagina Pasi was raided first. He
further stated that he does not remember name of the persons
whose houses were raided thereafter. He stated that he cannot
say as to when and where his statement was recorded by the
police during investigation of the case. He stated that he cannot
say about the place in the village where the seized articles were
kept. He further stated that he cannot say the name of the
persons who called the witnesses to the seizure list. He denied
the defence suggestion that nothing was recovered from the
house of the accused persons and maliciously the persons of
Pasi caste were being persecuted.
26. Dhiraj Kumar (P.W.4), a constable, stated in his
testimony that on 16,08.2016 he was posted at Gopalganj Town
Police Station. In the night he was on patrolling duty along with
B.P. Alok, Inspector of Police, Amit Kumar, Sub-Inspector of
Police and others. Mr. B.P. Alok received an information on his
mobile phone that some persons were having recurrent bouts of
vomiting after consumption of alcohol and they are admitted in
the hospital. On such information, they went to the hospital and
saw that Bandhu Ram was vomiting. On inquiry, he stated that
after consumption of liquor at the house of Nagina Pasi his
health deteriorated. He has further disclosed that he came to
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
know that some persons have been referred to other places for
better treatment and some of them had died. Thereafter, they
went to the Khajurbani village and raided various houses.
During the raid, alcohol and homeopathic medicines were
recovered. He stated that alcohol was found stored inside the
houses beneath the earth. He stated that 5-6 persons were
arrested during raid. According to him, a separate case was
registered for the death of several persons caused due to
consumption of spurious liquor.
27. In cross-examination, he stated that he had reached
at the Sadar Hospital, Gopalganj at midnight. At that time,
though he saw dead bodies, he did not inquire about their
identity. He along with others reached at Khajurbani village at
about 01:30-01:45 AM. He stated that the houses from which
recoveries were made were having doors and windows which
the raiding team got opened. He stated that the police party
stayed at Khajurbani village for over three hours. He stated that
he cannot identify the accused persons by name. He admitted
that the recovered articles were kept by the side of the road and
the seizure lists were prepared there. He stated that local
chowkidar (not examined) was sent for calling the witnesses. He
denied the defence suggestion that neither he visited the hospital
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
nor he was present at the village Khajurbani during raid
conducted in different houses.
28. Amit Kumar Singh (P.W.5), a Sub-Inspector of
Police and a member of the raiding party, stated in his
deposition that on 16.08.2016 he was posted at Gopalganj Town
Police Station. On 17.08.2016 at about 01:00 AM he had gone
to the Sadar Hospital, Gopalganj along with the S.H.O. B.P.
Alok where 3-4 persons, who had taken illicit liquor were found
vomiting and were being treated there. Their vision was
impaired. There was one Bandhu Ram, who was in a condition
to speak. In his presence, on inquiry by the S.H.O., Bandhu
Ram disclosed that he along with others had taken liquor at
Khajurbani village in the house of Nagina Pasi, Chhathu Pasi,
Grahan Pasi, wife of late Binda Pasi, Rajesh Pasi and Sanoj Pasi
whereafter they had fallen ill. He further disclosed that some
people have also died after consumption of illicit liquor and
their dead bodies were concealed by their family members.
After receipt of such information, the raiding team reached at
the village Khajurbani at about 02:00 AM on 17.08.2016. First
of all, search was made in the house of Chhathu Pasi. Though
one person tried to run away, he was chased and apprehended by
the raiding team. He disclosed his name as Chhathu Pasi. In
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
presence of two independent witnesses, search was made in his
house in which 2 jars of 15-litre each containing solution of
Mahua, Mitha and Nausadar and 8 bottles each containing 180
ml wine in the brand name '8PM' were recovered. Thereafter,
searches were made in the houses of other accused persons and
solution of Mahua, Mitha and Nausadar and huge quantity of
Indian made foreign liquor were recovered. Some recoveries of
illicit liquor were also made from outside the house of the
accused persons. He further stated that from the Dalan of
Nagina Pasi situated at the bank of the river 30 empty bottles of
Thuja medicine were recovered. For the said recoveries, the
S.H.O. prepared nine separate seizure lists and about 6-7
persons were caught at the place of occurrence, who were
produced before the court and were remanded to the judicial
custody in the instant case. He stated that due to consumption of
illicit liquor sold by the accused persons, 19 persons had died
for which a separate case vide Gopalganj Town P.S. Case No.
348 of 2016 was registered against them.
29. In cross-examination, he stated that the raid
continued at the place of occurrence from 02:00 AM to 09:00
PM on 17.08.2016. The raiding team returned at the Police
Station at about 03:00 AM on 18.08.2016. At that time the Sub-
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
Divisional Police Officer was present at the Police Station. He
stated that he cannot say as to when the FIR was registered as he
had gone to his house. He admitted that he cannot identify the
accused persons, who were arrested at the place of occurrence
by their name. However, he claimed to identify them by face.
He admitted that at the time of raid, some of the houses were
found partially built. He also admitted that recoveries were
made from an open field near the bank of river. He stated that
the witnesses to the seizure were present at the place of
occurrence from before. He stated that when he and others went
to the hospital, they had interacted with Bandhu Ram, but no
inquiry was made from others because they were not in a
position to speak. He admitted that at the time of search and
seizure certain persons of the neighboring houses had come but
he could not disclose their names. He denied the defence
suggestion that nothing was recovered from the possession of
the accused persons. He further denied the defence suggestion
that the accused persons have been falsely implicated in the case
due to pressure exerted upon the police from the Government.
30. Shailendra Kumar Singh (P.W.6), a constable and
a member of the raiding team stated in his deposition that on
16.08.2016 he was on patrolling duty with the S.H.O. B.P. Alok.
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
At midnight, when the patrolling party reached near the Post
Office Chowk, the S.H.O. received a secret information on his
mobile phone. Thereafter, the patrolling party reached at the
Sadar Hospital, Gopalganj where several persons, who had
taken spurious liquor, were lying unconscious. They were being
treated in the hospital. On inquiry, it was revealed that the
victims had taken spurious liquor at village Khajurbani.
Thereafter, the patrolling party went to the village Khajurbani.
During the search made by the police, recoveries of illicit liquor
were made from the houses of Nagina Pasi, Chhathu Pasi and
others. The S.H.O. had prepared the seizure lists and at the place
of occurrence itself six persons were arrested. The arrested
accused persons and the seized illicit liquor were brought to the
Police Station.
31. In cross-examination, he admitted that he cannot
say the name and number of the persons undergoing treatment
in the hospital after consumption of illicit liquor. He admitted
that he cannot say the exact quantity of illicit liquor recovered
from the houses of Nagina Pasi and Chhathu Pasi. He further
admitted that he had not seen the houses of Nagina Pasi and
Chhathu Pasi prior to the occurrence. However, he came to
know about their houses from the local persons. He stated that
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
he does not remember the name of local persons, who had
disclosed him about the houses of Chhathu Pasi and Nagina
Pasi. He stated that he does not remember as to whether he had
taken the name of Nagina Pasi and Chhathu Pasi before police
in his previous statement made during investigation. He stated
that after conducting raid, the raiding team came back at the
Police Station at 05:00 AM on 17.08.2016. He denied the
defence suggestion that he had falsely deposed before the court.
32. Nigam Kumar Verma (P.W.7), a Police Inspector
and the Investigating Officer of the case, stated in his testimony
that on 18.08.2016 at 09:30 AM he was handed over
investigation of the case under the orders of the Superintendent
of Police, Gopalganj. On that day at 10:15 AM he departed from
the Police Station to reach at the place of occurrence and
reached there at 10:30 AM. He inspected the houses of the
accused-appellants Chhathu Choudhary, Kanhaiya Pasi, Nagina
Pasi, Grahan Pasi, Lal Babu Pasi, Sanjay Pasi, Rajesh Pasi and
Mukesh Pasi situated in village Khajurbani. During inspection,
he recovered huge quantity of solution of Mahua, Mitha,
Nausadar and empty bottles of Homeopathic medicine Thuja.
He recorded the statements of the witnesses. He also recorded
the confessional statement of the accused-appellants Lal Babu
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
Pasi and Nagina Pasi. He proved his signature and writing on
the two confessional statements, which were marked as
Exhibits-3 and 3/1 respectively. He sent the seized articles to the
Forensic Science Laboratory for chemical test and produced the
report of the Forensic Science Laboratory in sealed cover before
the court during his deposition, which was marked as Exhibit-4.
On completion of investigation, he submitted charge-sheet in the
case against all the FIR named accused persons finding the case
to be true under Sections 272, 273, 420 and 308 of the Indian
Penal Code, Section 47(a) of the Excise Act and Section 57 of
the Bihar Excise Amendment Act, 2016.
33. In cross-examination, he stated that he was not a
member of the raiding team. He further stated that he is the
informant of the Gopalganj Town P.S. Case No. 348 of 2016.
The present case and Gopalganj Town P.S. Case No. 348 of
2016 were registered on the same day. He admitted that he went
to the place of occurrence after the FIR of the present case was
instituted. According to him, the place of occurrence is densely
populated. During inspection of the place of occurrence, he saw
1-2 persons of the locality, but they refused to give their
statements. He further admitted that during the inspection of the
place of occurrence and investigation of the case, he could not
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
meet any person, who had consumed liquor. He admitted that
during investigation he never met Bandhu Ram. He denied the
defence suggestion that no recovery of illicit liquor was made
from the respective houses of the accused-appellants.
34. At this stage, it would be pertinent to note that
P.W.7 was examined in this case on 25.05.2018. Thereafter the
prosecution filed a certified copy of the charge-sheet submitted
in Gopalganj Town P.S. Case No. 348 of 2016 and a certified
copy of the FIR of Gopalganj Town P. S. Case No. 348 of 2016
with the list of documents, which were marked as Exhibit-5 and
6 respectively vide order dated 27.06.2018 by the Trial Court.
Immediately, thereafter, vide order dated 04.07.2018, the
prosecution case was closed and the case was fixed for leading
evidence on behalf of the defence.
35. After examination of the aforesaid seven
prosecution witnesses, the prosecution case was closed by the
Trial Court on 04.07.2018. Thereafter, the appellants were
examined under Section 313 of the Cr.P.C on 24.07.2018.
36. On behalf of the defence, one Swaminath Sah, a
seizure list witness was examined during trial. In his testimony,
he stated that about two years ago he had gone to Gopalganj
Police Station in order to lodge an FIR. The police officer
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
present there took his signature on 4-5 sheets of blank paper. He
told him that his case would be registered, but it was never
registered. He stated that he does not know as to how and where
those signed papers were used.
37. In cross-examination, he stated that he has come to
depose pursuant to receipt of summons from the court. He stated
that he does not know about the case in which he had come to
depose. He disclosed that he had gone to the Police Station to
register a case against his agnates Bhagrasan Sah and Birsan
Sah, who had assaulted him as a result of which he had
sustained injuries.
38. After the evidence of Swaminath Sah (D.W.1) was
recorded, the case of the defence was closed vide order dated
01.10.2018.
39. After the closure of the prosecution and the defence
case and after hearing the parties, the Trial Court vide impugned
judgment dated 26.02.2021 and the consequent order dated
05.03.2021 convicted and sentenced the appellants in the
manner stated hereinabove in paragraph no.1.
40. We have heard Mr. Kanhaiya Prasad Singh, learned
senior counsel being assisted by Mr. Birendra Kumar Singh and
Mr. Prateek Mishra, learned counsels for the appellants in Cr.
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
Appeal (DB) Nos.350 and 351 of 2021, Mr. Vikash Ratan
Bharti, learned counsel for the appellant in Cr. Appeal (DB) No.
312 of 2021 and Mr. Ajay Mishra and Satya Narayan Prasad,
learned Additional Public Prosecutors for the State and carefully
perused the record. We have also heard Ms. Soni Srivastava,
learned amicus curiae in Death Reference No. 5 of 2021.
41. Mr. Kanhaiya Prasad Singh, learned senior counsel
for the appellants submitted that the Trial Court failed to
appreciate the evidence properly. It failed to appreciate that
there was considerable delay in lodging the FIR. It further failed
to appreciate that only the police officials have been examined
during trial on behalf of the prosecution. According to him, the
prosecution witnesses examined during trial are not consistent.
They have contradicted each other in material particulars. None
of them told the name of the accused-appellants.
42. He further contended that after receiving the secret
information the informant along with the police party reached at
the Sadar Hospital, Gopalganj and met with one Bandhu Ram,
who was undergoing treatment. He told him that the appellants
are involved in illicit trade of liquor and after consuming
spurious liquor his health as well as health of others had
deteriorated. The aforesaid Bandhu Ram was not examined
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
during trial. He was not medically examined to corroborate that
he had taken spurious liquor. He contended that though the
Investigating Officer admitted in his cross-examination that the
place of occurrence is densely populated, the seizure list
witnesses belong to some other villages and their presence at the
place of occurrence at the dead of night appears to be highly
improbable. His further contention is that the prosecution has
not examined even the seizure list witnesses in support of its
case. On the contrary, one of the seizure lists witnesses, namely,
Swaminath Sah has been examined on behalf of the defence. In
his evidence, he has deposed that two years ago when he had
gone to the Gopalganj Town Police Station for lodging a case,
the S.H.O. took his signature on 4-5 blank sheets of paper and
compelled him to return from the Police Station, but his case
had not been registered.
43. Mr. Singh, learned senior counsel argued that the
Trial Court failed to appreciate that the Investigating Officer of
the case has admitted in his cross-examination that he neither
contacted Bandhu Ram during investigation nor took statement
of any independent witness. He argued that the informant
(P.W.1) has deposed that the seizure lists were prepared by him,
which are in his writing and signature, but he has not proved the
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
contents of those seizure lists.
44. Mr. Singh further argued that though it is stated that
altogether 19 persons died due to consumption of poisonous
liquor, the prosecution did not bring on record even the name of
those persons, who died nor the post-mortem report of a single
person, who died due to consumption of poisonous liquor was
brought on record.
45. Mr. Vikash Ratan Bharti, learned counsel for the
appellant Chhathu Pasi @ Choudhary in Cr. Appeal (DB) No.
312 of 2021 while adopting the submissions made by Mr.
Kanhaiya Prasad Singh, learned senior counsel contended that
in the present case the witnesses examined during trial did not
identify the accused persons in the dock, which creates serious
doubt about the involvement of the appellants in the case. He
submitted that since the report of FSL was not supplied to the
accused-appellants along with other relevant documents under
Section 207 of the Cr.P.C. they filed an application before the
Trial Court on 07.12.2020 under Section 311 of the Cr.P.C to
enable them to cross-examine the Investigating Officer about
the contents of the said FSL report. The said application dated
07.12.2020 filed under Section 311 of the Cr.P.C on behalf of
the appellants was erroneously rejected by the Trial Court vide
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
order dated 08.12.2020. He submitted that since the FSL report
was never supplied to the appellants, the said report ought not to
have been taken into evidence and relied upon for arriving at a
conclusion against the appellants.
46. Ms. Soni Srivastava, learned amicus curiae
appearing in Death Reference No.5 of 2021 also while adopting
the submissions made on behalf of the appellants contended that
in the instant case the witnesses examined on behalf of the
prosecution have failed to prove the seizures made from the
houses or possession of the accused-appellants. She contended
that the FSL report in itself cannot conclusively determine as to
what were the articles seized from the possession or from the
house of the accused-appellants. She submitted that the failure
of the prosecution in the present case to relate the seized articles
sent to the FSL with that of seized items from the houses of the
accused-appellants would make the entire case doubtful. Mere
production of FSL report that the sample seized contained Ethyl
Alcohol with Methyl Alcohol, which was highly poisonous,
cannot be the conclusive proof of guilt of the accused-
appellants. The sample of country made liquor, empty bottles of
Thuja 30 and foreign liquor seized in the case had to be
correlated with the seizures made from the houses of the
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
accused-appellants in order to prove the guilt, which was not
done in the present case.
47. Ms. Srivastava, learned amicus curiae further
contended that in the instant case the incriminating
circumstances were also not put to the accused persons in their
examination under Section 313 of the Cr.P.C. She contended
that the circumstances, which were not put to the accused-
appellants in their examination under Section 313 of the Cr.P.C
cannot be used against them. Those circumstances ought to have
been excluded from the consideration by the Trial Court.
48. On the other hand, Mr. Ajay Mishra, learned
Additional Public Prosecutor appearing for the State submitted
that in the instant case the Trial Court has correctly appreciated
the evidence on record. It has rightly held the accused-
appellants held guilty after scrutinizing the evidences and the
materials available on record. According to him, the witnesses
examined in this case are consistent. It is the definite case of the
prosecution that Bandhu Ram had disclosed to the informant
Mr. B.P. Alok that Chhathu Pasi and others had sold poisonous
liquor in the Khajurbani village and many persons became
critically ill and died after consumption of the illicit liquor sold
by them. He further contended that in view of Section 32(2) of
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
the Excise Act, 2016 since the accused-appellants failed to offer
any satisfactory explanation for the possession of the seized
substances from their respective houses, there shall be a
presumption against them that they are guilty of the commission
of the offences under the Excise Act,2016.
49. Mr. Mishra submitted that the poisonous liquor was
recovered from the houses of the accused-appellants which had
been kept beneath the earth and seizure lists were prepared for
the seized materials. He contended that P.W.4 categorically
stated that Thuja, a homeopathic medicine had been recovered
during raid. He further contended that the Investigating Officer
has established the place of occurrence as the respective houses
of Chhathu Pasi, Sanjay Pasi, Grahan Pasi, Lal Babu Pasi and
Nagina Pasi from where huge quantity of Mitha, Mahua,
Nausadar and empty bottles of Thuja used in preparation of
spurious liquor had been recovered. The seized liquor was sent
for chemical test to the FSL and the test report confirms the
presence of Ethyl Alcohol and Methyl Alcohol, which was
highly poisonous. Mr. Mishra further contended that the
testimony of the witnesses corroborates each other. The FSL
report further corroborates the oral testimony of the witnesses.
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
50. Mr. Satya Narayan Prasad, learned Additional
Public Prosecutor for the State submitted that the act of the
appellants resulted into death of 19 persons and disability to
many others. He submitted that looking at the gravity of the
offence, the Trial Court has rightly awarded death sentence to
the male accused-appellants for the offence punishable under
Section 34(a)(b)(i) of the Excise Act, 2016. He contended that in
this case the accused-appellants were responsible for mixing
noxious substance with the liquor they manufactured. They sold
such noxious substance to several persons, which resulted into
death of 19 persons and disability to many others. In that view
of the matter, the Trial Court rightly awarded death sentence to
the nine male convicts and life imprisonment to the four female
convicts for the offence punishable under Section 34(b)(i) of the
Excise Act, 2016.
51. In reply, Mr. Kanhaiya Prasad Singh, learned senior
counsel for the appellants submitted that the aspect of
presumption as provided under sub-section (2) of Section 32 of
the Excise Act, 2016 would not arise merely upon charge being
levelled against the accused-appellants under the Excise Act,
2016. The law requires that the prosecution must lay down the
foundation and bring sufficient material on record to make out a
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
case for presumption. Only after the foundational facts are
established, the burden of proof shifts on the accused to rebut
the presumption. He further contended that it is settled position
of law that the prosecution must prove its case beyond
reasonable doubt to establish the guilt of the accused.
52. I have given my anxious consideration to the rival
submissions and have carefully perused the record.
53. It would appear from the prosecution case that in
sum and substance the allegations are that the accused-
appellants were involved in trade, manufacture and sale of
spurious illicit liquor at the village Khajurbani under Gopalganj
Town Police Station. The further allegation against them is that
because of consumption of spurious illicit liquor sold by them
19 persons have lost their lives and several others were critically
ill. It would further appear from the submissions made on behalf
of the defence that the prosecution has completely failed to
prove its case. According to the defence, the prosecution has not
been able to lay even the foundation and bring sufficient
material on record against the accused-appellants.
54. In order to appreciate the rival submissions made
on behalf of the parties, it would be essential to examine as to
whether the prosecution has been able to lay foundation and
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
bring sufficient materials on record to make out a case against
the accused-appellants.
55. It has also been argued on behalf of the appellants
that there was an inordinate and unexplained delay caused in
lodging the FIR, which causes serious doubt about the veracity
of the prosecution case.
56. In this regard, when I closely look at the FIR and
the testimonies of the witnesses, I would find that as per
prosecution case a secret information was received by B.P. Alok
(P.W.1) at 00:10 AM on 17.08.2016 that some persons, who are
critically ill and are having recurrent bouts of vomiting, have
come to the Sadar Hospital, Gopalganj for treatment. He also
received the information that possibly some of the persons have
died and some others are being referred for better treatment.
Immediately, thereafter, he proceeded to Gopalganj Sadar
Hospital and reached there at 00:20 AM on 17.08.2016 and
found one Bandhu Ram in a critical condition. He disclosed in
detail about the persons, who were involved in selling spurious
liquor mixed with Mahua, Mitha, Nausadar etc. at village
Khajurbani. He further disclosed that several persons had
consumed spurious liquor in the houses of the accused-
appellants as a result of which condition of their health
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
deteriorated.
57. The information given by Bandhu Ram was
definitely in respect of a cognizable offence. The witnesses
examined on behalf of the prosecution except P.W.7 claimed
themselves to be present at the Sadar Hospital when inquiry was
made by P.W.1 from Bandhu Ram are all police personnel. They
were on a government vehicle. This Court may take judicial
notice of the fact that Sadar Hospital, Gopalganj where the so
called Bandhu Ram is said to be admitted is situated at a close
distance from Gopalganj Town Police Station.
58. Section 154 contained in Chapter XII of the Cr.P.C
deals with the information to the police and their powers to
investigate. The Cr.P.C classifies the offences in two categories,
namely, (a) cognizable offence; and (b) non-cognizable offence.
Registration of an FIR is mandatory under Section 154 of the
Cr.P.C if the information discloses the commission of a
cognizable offence.
59. In the instant case, since the information regarding
a cognizable offence is said to have been given to the police on
17.08.2016 at 00:20 AM by Bandhu Ram at the Sadar Hospital,
Gopalganj, it was incumbent upon P.W.1, who was the S.H.O. of
Gopalganj Town Police Station, to have instituted the FIR
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
promptly. Surprisingly, in spite of the receipt of a concrete
information regarding the commission of a cognizable offence,
he failed to register FIR promptly.
60. The institution of the FIR much after receipt of the
information regarding a cognizable offence on 18.08.2016 at
09:30 AM after raiding the respective houses of the accused-
appellants and preparing respective seizure lists gives rise to the
presumption that the same was instituted after due deliberations
and consultation.
61. In Dilawar Singh vs. State of Delhi, since reported
in (2007) 12 SCC 641, while holding that unexplained delay in
lodging of the FIR is fatal, the Supreme Court held:
"9. In criminal trial one of the cardinal
principles for the court is to look for
plausible explanation for the delay in
lodging the report. Delay sometimes affords
opportunity to the complainant to make
deliberation upon the complaint and to
make embellishment or even make
fabrications. Delay defeats the chance of the
unsoiled and untarnished version of the case
to be presented before the court at the
earliest instance. That is why if there is
delay in either coming before the police or
before the court, the courts always view the
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
allegations with suspicion and look for
satisfactory explanation. If no such
satisfaction is formed, the delay is treated as
fatal to the prosecution case.
10. In Thulia Kali v. State of T.N. [(1972) 3
SCC 393: 1972 SCC (Cri) 543: AIR 1973
SC 501] it was held that the delay in
lodging the first information report quite
often results in embellishment as a result of
afterthought. On account of delay, the
report not only gets bereft of the advantage
of spontaneity, but also danger creeps in of
the introduction of coloured version,
exaggerated account or concocted story as
a result of deliberation and consultation.
11. In Ram Jag v. State of U.P. [(1974) 4
SCC 201: 1974 SCC (Cri) 370: AIR 1974
SC 606] the position was explained that
whether the delay is so long as to throw a
cloud of suspicion on the seeds of the
prosecution case must depend upon a
variety of factors which would vary from
case to case. Even a long delay can be
condoned if the witnesses have no motive for
implicating the accused and/or when
plausible explanation is offered for the
same. On the other hand, prompt filing of
the report is not an unmistakable guarantee
of the truthfulness or authenticity of the
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
version of the prosecution."
62. In P. Rajagopal vs. State of Tamil Nadu, since
reported in (2019) 5 SCC 403, the Hon'ble Supreme Court held:
"12. Normally, the Court may reject the case of
the prosecution in case of inordinate delay in
lodging the first information report because of
the possibility of concoction of evidence by the
prosecution. However, if the delay is
satisfactorily explained, the Court will decide
the matter on merits without giving much
importance to such delay. The Court is duty-
bound to determine whether the explanation
afforded is plausible enough given the facts
and circumstances of the case. The delay may
be condoned if the complainant appears to be
reliable and without any motive for implicating
the accused falsely. [See Apren Joseph v. State
of Kerala [Apren Joseph v. State of Kerala,
(1973) 3 SCC 114: 1973 SCC (Cri) 195] and
Mukesh v. State (NCT of Delhi), (2017) 6 SCC
1: (2017) 2 SCC (Cri) 673]"
63. In State of Punjab vs. Ramdev Singh, since
reported in (2004) 1 SCC 421, the Hon'ble Supreme Court held:
"Delay in lodging the FIR cannot be used a
ritualistic formula for doubting the prosecution
case and discarding the same solely on the
ground of delay in lodging the first information
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
report. Delay has the effect of putting the court
on its guard to search if any explanation has
been offered for the delay, and if offered,
whether it is satisfactory or not. If the
prosecution fails to satisfactorily explain the
delay and there is possibility of embellishment
in the prosecution version on account of such
delay, the same would be fatal to the
prosecution. However, if the delay is explained
to the satisfaction of the court, the same cannot
by itself be a ground for disbelieving and
discarding the entire prosecution version. ..."
64. It is surprising that in the instant case the FIR has
not been instituted on the basis of the oral statement of Bandhu
Ram made before the S.H.O. of Gopalganj Town Police Station
at the Sadar Hospital, Gopalganj at 00:20 hours on 17.08.2016,
which definitely disclosed about commission of a cognizable
offence in great detail. The S.H.O. not even bothered to record
the oral statement of aforesaid Bandhu Ram. He started the
investigation of the case without registration of the FIR. He
went to the place of occurrence, raided several houses, prepared
search-cum-seizure lists, recorded his self-statement at 10:15
PM on 17.08.2016 i.e., almost 22 hours after getting the
information regarding a cognizable offence from Bandhu Ram
and registered the FIR at 09:30 AM on 18.08.2016 i.e., about
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
11½ hours after recording of his self-statement.
65. Apparently, the FIR was not instituted on the basis
of the first information received by the S.H.O. regarding
commission of a cognizable offence, but the same was also
instituted after an inordinate and unexplained delay and that too
after completing a major part of investigation. The aforesaid act
of the police gives rise to the possibility of concoction of
evidence by the prosecution.
66. It is the case of the prosecution that on secret
information the informant along with police officials went to the
Sadar Hospital, Gopalganj and met one Bandhu Ram, who was
undergoing treatment and he told him that all the accused-
appellants are indulged in illegal trade of illicit liquor made of
Mahua, Mitha, Nausadar etc. and he had consumed the same.
The aforesaid Bandhu Ram has not been examined during trial
nor there is any evidence that he was medically examined by the
doctors at the Sadar Hospital. Except the oral version of the
witnesses, there is no documentary proof that the said Bandhu
Ram had fallen ill after consumption of illicit liquor at the
village Khajurbani and was being treated at the Sadar Hospital,
Gopalganj.
67. Moreover, P.W.7, the Investigating Officer of the
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
case admitted in para 26 of his cross-examination that during
investigation that he could not meet Bandhu Ram. Thus, Bandhu
Ram appears to be a creature of imagination.
68. Furthermore, P.W.7 admitted in para 21 of his
cross-examination that he could not meet any person at the place
of occurrence, who had taken spurious liquor. He stated that
though he tried to locate and find out the persons who had taken
liquor at the village Khajurbani, he failed to locate them. In para
25 of his cross-examination, he admitted that during
investigation he did not record the statement of any independent
witness.
69. When I look at the testimony of P.W.6, a constable
and a member of the raiding team, I find that in para 10 of his
cross-examination, he stated that he cannot say the name of the
persons being treated in the hospital after consuming spurious
liquor.
70. Similarly, P.W.5, a Sub-Inspector of police and a
member of the raiding team, stated in his testimony that 3-4
persons were being treated in the hospital, who had taken
poisonous liquor and were vomiting. He stated that 19 persons
had died after consumption of spurious liquor for which
Gopalganj Town P.S. Case No. 348 of 2016 was separately
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
registered. However, in cross-examination, he admitted that
when the raiding team reached at the hospital inquiry was made
only from Bandhu Ram. He stated that other persons being
treated there were not in a position to speak. There is no
investigation about the persons who were being treated in the
hospital apart from Bandhu Ram. Though P.W.5 stated that
some persons had died, there is no investigation who were those
persons who had died due to consumption of spurious liquor.
71. Likewise, P.W.4, a constable and a member of the
raiding team admitted in para 8 of his cross-examination that
when he reached at the hospital, he saw 3-4 persons being
treated there, but he did not make any inquiry about their
identity. P.W.3, another member of the raiding team also
admitted in his cross-examination at para 11 that he cannot say
name of the persons who had died after consumption of spurious
liquor. Thus, I find that though the prosecution has tried to make
out a case that 19 persons died due to consumption of poisonous
liquor, it neither brought on record name of the deceased
persons nor their post-mortem reports.
72. On the point of search and seizure, I find that P.W.1
proved his writing and signature on the seizure lists, which were
marked as Exhibit-1 to 1/H respectively. He stated that the
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
seizure lists were prepared in the presence of two independent
witnesses, namely, Paltu Kumar and Swaminath Sah. He did not
utter a word in his evidence as to what was recovered from
whose house. In other words, he did not whisper a word in his
testimony about the recoveries of articles made from the houses
of the accused-appellants.
73. When I look at the evidence of P.W.2, I find that he
admitted in para 13 of his cross-examination that he cannot say
about the articles recovered from the respective houses of the
appellants. Similarly, P.W.3 stated in his evidence that firstly the
house of Nagina Pasi was raided and thereafter he cannot say
whose houses were raided. He further stated that he cannot say
about the place where the seized articles were kept together.
Further, P.W.4 admitted in cross-examination that the articles
recovered in the raid were kept beside the road in front of the
houses and the seizure lists were prepared there. Furthermore,
P.W.6 admitted in his cross-examination that he cannot say as to
what was the quantity of spurious liquor recovered from the
houses of Nagina Pasi and Chhathu Pasi.
74. When I closely scrutinize the testimony of P.W.7, I
find that he stated in his evidence that during inspection of the
place of occurrence at 10:30 AM on 18.08.2016 after the
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
investigation was handed over to him at 09:30 AM on
18.08.2016, he recovered huge quantity of illicit liquor and
Mahua, Mitha, Nausadar and Thuja from the respective houses
of the appellants and their courtyards. In support of his oral
testimony no seizure list was prepared for the alleged seizures
made on 18.08.2016 by the Investigating Officer of the case.
75 As far as the searches and seizures made by the
informant of the case are concerned, I find the testimonies of the
witnesses examined on behalf of the prosecution to be wholly
unreliable. The informant has not even whispered about the
articles recovered from the houses of the accused-appellants and
their quantity. He has simply proved his writing and signature
on the nine seizure lists, which have been marked as Exhibits-1
to 1/H.
76. Apparently, there is no oral evidence regarding the
articles seized from the houses of the accused-appellants. The
seizure lists prepared by the informant in themselves cannot be
treated to be proof of their contents. The witnesses examined on
behalf of the prosecution in respect of searches and seizures do
not appear to be reliable. They are not sure about the articles
recovered from different houses alleged to have been raided by
the police officials.
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
77. Not only the witnesses examined on behalf of the
prosecution are unreliable, the two so called independent
witnesses to the seizures, namely, Paltu Kumar and Swaminath
Sah were not examined by the prosecution. One of them,
namely, Swaminath Sah has been examined on behalf of the
defence. He deposed that two years ago when he had gone to
the Gopalganj Town Police Station for lodging a case, the
S.H.O. had taken his signature on 4-5 blank sheets of paper and
asked him to go, but the case was not registered. In the absence
of examination of the independent seizure list witness Paltu
Kumar on behalf of the prosecution during trial and in absence
of any plausible explanation for the same and for the reason that
another seizure list witness, namely, Swaminath Sah was
examined as a defence witness, no reliance can be placed on the
truthfulness of the seizure lists prepared by the informant of the
case.
78. It would appear from the impugned judgment that
the Trial Court has placed reliance on the report of the FSL,
marked as Exhibit-4 to convict the accused-appellants. It would
appear from Exhibit-4 that three wooden boxes were sent to the
Forensic Science Laboratory for examination, which were
marked as 1, 2 and 3 and the box marked as '3' contained 45
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
plastic dibbas, marked as 1 to 45 each respectively contained
approximately 350 ml brown colour liquor with Alcoholic
smell. Ethyl Alcohol along with Methyl Alcohol were detected
in the contents of those 45 plastic dibbas. It has been reported
that Methyl Alcohol is highly poisonous. Curiously enough,
there is no evidence that from whose house those 45 plastic
dibbas were recovered.
79. Moreover, the report of the FSL was not supplied to
the appellants along with the police papers in compliance with
the provisions of Section 207 of the Cr.P.C.
80. It would be evident from the perusal of the lower
court records that in the present case charge-sheet was submitted
on 14.10.2016. Thereafter, charges were framed against the
accused-appellants on 25.05.2017 whereas articles sent for
chemical examination to the FSL were examined by the
Assistant Director of the Forensic Science Laboratory,
Government of Bihar, Patna and a report in this regard was
prepared on 17.04.2018, which was produced by the
Investigating Officer of the case in sealed cover when he was
being examined during trial on 25.05.2018. Thus, it is crystal
clear that the FSL report was never supplied to the accused-
appellants during trial.
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
81. In this background, when the accused-appellants
filed a petition on 07.12.2020 for recalling the Investigating
Officer for cross-examination, the Trial Court dismissed the
petition vide order dated 08.12.2020 holding therein that
recalling the Investigating Officer is not necessary in the ends of
justice and to the just decision of the case as the Investigating
Officer has already been examined and cross-examined at length
and report of the FSL is admissible under Section 293 of the
Cr.P.C.
82. At this stage, it is pertinent to note that the FSL
report is nothing but a document within the meaning of the
Cr.P.C. Since the prosecution is relying on the same and has
used it against the appellants, it was incumbent upon it to
furnish a copy of the same to the accused-appellants not only in
terms of Section 207 read with Section 173(5) of the Cr.P.C but
also to uphold the right of the accused a fair trial guaranteed
under Article 21 of the Constitution of India.
83. Even if the accused-appellants did not demand a
copy of the FSL report when the same was produced by the
Investigating Officer in a sealed cover while he was deposing
before the court, it was the duty of the court to ensure that a
copy of the report of FSL be supplied to the accused persons in
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
advance so that they may go through the same and prepare their
defence.
84. From the record, it would be evident that while
filing the petition dated 07.12.2020 under Section 311 of the
Cr.P.C, the accused-appellants pleaded that they could not cross-
examine the Investigating Officer upon the report of the FSL
due to its non-supply at the time of receiving the police papers
in compliance with Section 207 Cr.P.C. They submitted that in
the interest of justice and for the just decision of the case
questioning the Investigating Officer about the manner of
sending the illicit liquor to the FSL was highly essential. Hence,
a request was made to recall the Investigating Officer so that his
further cross-examination may be conducted. However, the Trial
Court rejected the application filed under Section 311 of the
Cr.P.C, on the ground that the same was filed in order to delay
the judgment of the case. According to the Trial Court, the FSL
report was well known to the defence as it was received in
evidence during examination of P.W.7, who had duly been
cross-examined and the defence had not asked any question
about the genuineness of the FSL report knowingly and
deliberately.
85. In my considered opinion, the order passed by the
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
Trial Court was not justified. It is no more res integra that an
accused has a right to a free and fair trial which flows from
Article 21 of the Constitution of India. The procedural law for
criminal trial as contained in the Cr.P.C is meant to ensure free
and fair trial. On receipt of the police report and accompanying
documents by virtue of Section 207 of the Cr.P.C, the Magistrate
is obliged to furnish copies of each of the statements and
documents to the accused.
86. Section 207 of the Cr.P.C reads as under:
"207. Supply to the accused of copy of police
report and other documents: In any case where
the proceeding has been instituted on a police
report, the Magistrate shall without delay
furnish to the accused, free of cost, a copy of
each of the following:
i. the police report;
ii. the first information report recorded
under section 154;
iii.the statements recorded under sub-
section (3) of section 161 of all persons
whom the prosecution proposes to
examine as its witnesses, excluding
therefrom any part in regard to which a
request for such exclusion has been
made by the police officer under sub-
section (6) of section 173;
iv. the confessions and statements, if any,
recorded under section 164;
v. any other document or relevant extract
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
thereof forwarded to the Magistrate with
the police report under sub- section (5)
of section 173:
Provided that the Magistrate may, after
perusing any such part of a statement as
is referred to in clause (iii) and
considering the reasons given by the
police officer for the request, direct that
a copy of that part of the statement or of
such portion thereof as the Magistrate
thinks proper, shall be furnished to the
accused:
Provided further that if the Magistrate is
satisfied that any document referred to in
clause (v) is voluminous, he shall,
instead of furnishing the accused with a
copy thereof, direct that he will only be
allowed to inspect it either personally or
through a pleader in Court.
87. Indisputably, the provisions of Section 207 of the
Cr.P.C. are set down in a mandatory language. There is an
obligation on the prosecution to perform judicial duty of
supplying all the necessary copies of the documents to the
accused. In the instant case, the prosecution has violated this
mandatory provision as the copy of the FSL report was not
supplied to the accused-appellants. The report itself was
prepared after the charge-sheet was filed in the court and
charges had already been framed. It was definitely a
supplementary material which came into existence during trial
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
in the hands of the prosecution. Since the prosecution intended
to rely upon it, it was incumbent upon it to have supplied a
copy of the same in advance to the accused-appellants so that
they could defend themselves properly and effectively.
88. In Tarun Tyagi Vs. C.B.I., since reported in
(2017) 4 SCC 490, the Supreme Court considered the purport of
Section 207 Cr.P.C and observed as under:
"8. Section 207 puts an obligation on the
prosecution to furnish to the accused, free of
cost, copies of the documents mentioned
therein, without any delay. It includes,
documents or the relevant extracts thereof
which are forwarded by the police to the
Magistrate with its report under Section 173(5)
of the Code. Such a compliance has to be made
on the first date when the accused appears or
is brought before the Magistrate at the
commencement of the trial inasmuch as Section
238 of the Code warrants the Magistrate to
satisfy himself that provisions of Section 207
have been complied with. Proviso to Section
207 states that if documents are voluminous,
instead of furnishing the accused with the copy
thereof, the Magistrate can allow the accused
to inspect it either personally or through
pleader in the court."
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
89. In Manu Sharma v. State (NCT of Delhi), since
reported in (2010) 6 SCC 1, the accused alleged that the conduct
of the prosecution was done in such a manner that it deprived
him of fundamental right to a fair trial secured under Article 21
of the Constitution. It was argued that the prosecutor had
suppressed vital evidence (laboratory reports) which was a
breach of the duty of disclosure and, thus, vitiated the trial. It
was further argued that the duty of disclosure went beyond
material being relied upon by the prosecution. Though the
Supreme Court dismissed the appeal, it made certain important
observations on this issue. It emphasized that fair trial and fair
investigation are not only the right of the accused but an integral
part of rule of law itself. It linked the duty of disclosure upon
the investigating agency and the prosecutor to this idea of a fair
trial which understood as "the very foundation of a fair
investigation and fair trial". The Supreme Court held that there
was "an implied obligation" to make fair disclosure, which
would take in its ambit furnishing of a document which the
prosecution relied upon whether filed in Court or not. That
document should essentially be furnished to the accused and
where during investigation a document is bona fide obtained by
the investigating agency and in the opinion of the prosecutor is
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
relevant and would help in arriving at the truth, that document
should also be disclosed to the accused. The provisions of
Section 207 of the Cr.P.C will have to be given liberal and
relevant meaning so as to achieve its object. It specifically
included all materials sent to the court during investigation
under Section 170 of the Cr.P.C as a part of the materials that
had to be provided to an accused. To claim documents within
the purview of scope of Section 207, 243 read with Section 173
in its entirety and power of the Court under Section 91 of the
Cr.P.C to summon documents signifies and provides precepts
which will govern the right of the accused to claim copies of the
statement and documents which the prosecution has collected
during investigation and upon which they rely.
90. In Manu Sharma v. State (NCT of Delhi) (Supra),
the Supreme Court held as under:
"218. The liberty of an accused cannot be
interfered with except under due process of
law. The expression "due process of law" shall
deem to include fairness in trial. The court (sic
Code) gives a right to the accused to receive
all documents and statements as well as to
move an application for production of any
record or witness in support of his case. This
constitutional mandate and statutory rights
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
given to the accused place an implied
obligation upon the prosecution (prosecution
and the Prosecutor) to make fair disclosure.
The concept of fair disclosure would take in
its ambit furnishing of a document which the
prosecution relies upon whether filed in court
or not. That document should essentially be
furnished to the accused and even in the cases
where during investigation a document is
bona fide obtained by the investigating agency
and in the opinion of the Prosecutor is
relevant and would help in arriving at the
truth, that document should also be disclosed
to the accused.
219. The role and obligation of the Prosecutor
particularly in relation to disclosure cannot be
equated under our law to that prevalent under
the English system as aforereferred to. But at
the same time, the demand for a fair trial
cannot be ignored. It may be of different
consequences where a document which has
been obtained suspiciously, fraudulently or by
causing undue advantage to the accused during
investigation such document could be denied in
the discretion of the Prosecutor to the accused
whether the prosecution relies or not upon such
documents, however in other cases the
obligation to disclose would be more certain.
As already noticed the provisions of Section
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
207 have a material bearing on this subject
and make an interesting reading. This
provision not only require or mandate that the
court without delay and free of cost should
furnish to the accused copies of the police
report, first information report, statements,
confessional statements of the persons recorded
under Section 161 whom the prosecution
wishes to examine as witnesses, of course,
excluding any part of a statement or document
as contemplated under Section 173(6) of the
Code, any other document or relevant extract
thereof which has been submitted to the
Magistrate by the police under sub-section (5)
of Section 173. In contradistinction to the
provisions of Section 173, where the legislature
has used the expression "documents on which
the prosecution relies" are not used under
Section 207 of the Code. Therefore, the
provisions of Section 207 of the Code will have
to be given liberal and relevant meaning so as
to achieve its object. Not only this, the
documents submitted to the Magistrate along
with the report under Section 173(5) would
deem to include the documents which have to
be sent to the Magistrate during the course of
investigation as per the requirement of Section
170(2) of the Code.
221. It will be difficult for the Court to say that
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
the accused has no right to claim copies of the
documents or request the Court for production
of a document which is part of the general
diary subject to satisfying the basic ingredients
of law stated therein. A document which has
been obtained bona fide and has bearing on the
case of the prosecution and in the opinion of
the Public Prosecutor, the same should be
disclosed to the accused in the interest of
justice and fair investigation and trial should
be furnished to the accused. Then that
document should be disclosed to the accused
giving him chance of fair defence, particularly
when non-production or disclosure of such a
document would affect administration of
criminal justice and the defence of the accused
prejudicially. (emphasis supplied)
91. In V.K. Sasikala v. State, since reported in (2012)
9 SCC 771, the Supreme Court heard the challenges to the two
orders of the Karnataka High Court whereby it had upheld the
rejection of two applications made by the applicant for being
supplied with the copies of the documents/right to inspect the
documents that were purportedly filed with the court but not
exhibited by the prosecution in pending trial. The appellant had
not raised any objection to the non-supply of this material when
Section 207 proceedings were conducted or even afterwards but
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
filed the application in question when her statement under
Section 313 of the Cr.P.C was being recorded in a bid to be able
to answer the question more effectively and not be prejudiced
while making the statement. The Supreme Court allowed the
petition and permitted the appellant to inspect the court record.
While doing so, the court specifically rejected the argument that
the appellant's right is foreclosed as it was raised at a late stage
in the trial. The Court held that the trial courts must consider
any plea suggesting prejudice due to non-supply of materials at
the earliest. The court's duty of disclosure is, therefore, beyond
providing only the material relied upon by the prosecution and
covers all the material that are filed in the court as it would
otherwise render an accused person defenseless against the
suppression of exculpatory material by the
investigators/prosecutors. The Court held that the accused need
not wait till the conclusion of trial to show the prejudice caused
to him.
92. In V.K. Sasikala v. State (Supra), the Supreme
Court held as under:
"21. The issue that has emerged before
us is, therefore, somewhat larger than what has
been projected by the State and what has been
dealt with by the High Court. The question
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
arising would no longer be one of compliance
or non-compliance with the provisions of
Section 207 CrPC and would travel beyond
the confines of the strict language of the
provisions of CrPC and touch upon the larger
doctrine of a free and fair trial that has been
painstakingly built up by the courts on a
purposive interpretation of Article 21 of the
Constitution. It is not the stage of making of
the request; the efflux of time that has occurred
or the prior conduct of the accused that is
material. What is of significance is if in a given
situation the accused comes to the court
contending that some papers forwarded to the
court by the investigating agency have not been
exhibited by the prosecution as the same
favours the accused the court must concede a
right to the accused to have an access to the
said documents, if so claimed. This, according
to us, is the core issue in the case which must
be answered affirmatively. In this regard, we
would like to be specific in saying that we find
it difficult to agree with the view taken by the
High Court that the accused must be made to
await the conclusion of the trial to test the plea
of prejudice that he may have raised. Such a
plea must be answered at the earliest and
certainly before the conclusion of the trial,
even though it may be raised by the accused
belatedly. This is how the scales of justice in
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
our criminal jurisprudence have to be
balanced. (emphasis supplied)
93. It is true that the accused-appellants lately came to
realize that due to non-supply of FSL report and its sudden
production during trial deprived them the opportunity to
confront the Investigating Officer about the contents of the
report and the manner in which it was procured and, in this
view of the matter, the application dated 07.12.2020 was filed
before the court on behalf of the accused-appellants to enable
them to cross-examine the Investigating Officer about the
contents of the said FSL report, but that could not be the ground
to deny them to have a copy of the FSL report and to cross-
examine the Investigating Officer.
94. It is not in dispute in the case at hand that the FSL
report was not supplied to the appellants at any stage. The same
was taken into evidence on being furnished by the Investigating
Officer. Generally, the opinion of an expert though relevant,
requires the expert to be examined as a witness in court
otherwise his report cannot be admitted in evidence. However,
Sections 292 and 293 Cr.P.C are exceptions to the general rule
as laid down in Section 273 Cr.P.C. Both these sections also
depart from the elementary rule of law that unless the evidence
is given on oath and is tested by cross-examination, it is not
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
legally admissible against the party affected. Section 293
Cr.P.C. make the report of the certain government scientific
experts mentioned in sub-section (4) of this Section, admissible
in evidence without calling him as a witness.
95. In the present case, the expert, who had prepared
the FSL report has not been examined. The said report after
being produced by the Investigating Officer has been taken into
consideration under Section 293 of the Cr.P.C. Since the FSL
report was never supplied to the appellants at any stage, when
an application was filed on behalf of the appellants under
Section 311 of the Cr.P.C to summon the Investigating Officer
for further cross-examination, the Trial Court ought to have
allowed the application and permitted the defence to further
cross-examine the Investigating Officer after ensuring that a
copy of the FSL report is supplied to the appellants.
96. Considering the facts and circumstances
enumerated above and the ratio laid down by the Supreme
Court in the judgments noted above, I am of the view that no
reliance can be placed on the FSL report, which was not
provided to the accused-appellants at any stage of the trial for
arriving at a conclusion of guilt against the accused-appellants.
97. At this stage, in order to appreciate the argument
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
advanced on behalf of the accused-appellants as to whether the
ingredients of the offences under which they are convicted by
the trial court have been established, the relevant provisions of
the Excise Act, 2016 and the IPC may be extracted for ready
reference: -
Excise Act, 2016
30. Penalty for unlawful manufacture,
import, export, transport, possession, sale,
purchase, distribution, etc. of any intoxicant
or liquor.--Whoever, in contravention of any
provision of this Act or of any rule, regulation,
order made, notification issued thereunder, or
without a valid license, permit or pass issued
under this Act, or in breach of any condition of
any license, permit or pass renewed or
authorization granted thereunder--
(a) Manufactures, possesses, buys, sells,
distributes, collects, stores, bottles,
imports, exports, transports, removes or
cultivates any intoxicant, liquor, hemp;
(b) xxxx xxxx xxxx
(c) xxxx xxxx xxxx
(d) xxxx xxxx xxxx
(e) xxxx xxxx xxxx
(f) xxxx xxxx xxxx
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
(g) xxxx xxxx xxxx
shall be punishable with imprisonment for the
term which may extend to life and with fine
which may extend to ten lakh rupees.
Provided that the punishment:
(a) For the first offence shall not be less
than five years imprisonment and fine of
not less than one lakh rupees, and
(b) For the second and subsequent
offences shall not be less than ten years
rigorous imprisonment and fine of not
less than five lakh rupees.]
34(a)(b)(i). Penalty for mixing noxious
substance with liquor. --Whoever,
(a) mixes or permits to be mixed with any
liquor sold or manufactured or possessed by
him, any noxious drug or any poisonous
ingredient; or
(b) makes, sells or possesses any preparation,
whether solid, semi solid, liquid, semi liquid
or gaseous, either made locally or otherwise,
that may serve as an alcohol or a substitute
for alcohol and is used or consumed for the
purposes of getting intoxicated which is likely
to cause disability or grievous hurt or death to
human beings, shall be punishable: --
(i) if as a result of such an act, death
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
is caused, with death or imprisonment
for life and shall also be liable to fine,
which shall not be less than five lakh
rupees but which may extend to ten
lakh rupees"
IPC
"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."
273. Sale of noxious food or drink. --
Whoever sells, or offers or exposes for sale, as
food or drink, any article which has been
rendered or has become noxious, or is in a
state unfit for food or drink, knowing or having
reason to believe that the same is noxious 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.
308. Attempt to commit culpable homicide. --
Whoever does any act with such intention or
knowledge and under such circumstances that,
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
if he by that act caused death, he would be
guilty of culpable homicide not amounting to
murder, shall be punished with imprisonment
of either description for a term which may
extend to three years, or with fine, or with
both; and, if hurt is caused to any person by
such act, shall be punished with imprisonment
of either description for a term which may
extend to seven years, or with fine, or with
both."
98. From a bare reading of the Section 30(a) of the
Excise Act, 2016, it would be evident that in order to establish
the charge under this provision the prosecution would be
required to prove that the accused persons were indulged in the
act of manufacturing, possessing, buying, selling, distributing,
collecting, storing, bottling, importing, exporting, transporting
or removing any intoxicant or liquor in contravention of the
provisions of the Excise Act, 2016 or any rule or order or
notification issued thereunder or in contravention of any
condition of any license, permit or pass, renewed or
authorization granted thereunder.
99. It is true that in the instant case the informant
prepared nine seizure lists for the alleged seizures made from
the houses of the accused-appellants and from outside their
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
houses from open space or Dalan. However, the material
exhibits, i.e., the seized materials were never produced before
the court. It is not known where the seized materials were kept
after their seizure. Neither Malkhana in charge has been
examined nor Malkhana register has been produced before the
court. The Investigating Officer did not prepare any inventory of
the seized materials. There is no destruction report of the seized
materials. It is not known what happened to the materials seized
from the respective houses of the accused-appellants. There is
no evidence to suggest that any sample was drawn on the spot of
recovery of any intoxicant or liquor.
100. In respect of the searches and seizures of the
intoxicant and liquor there is yet another aspect which cannot be
lost sight of. The witnesses examined on behalf of the
prosecution are all police personnel, but they are not consistent.
They have contradicted each other in material particular.
101. In so far as the time of searches and seizures is
concerned, though P.W.1 stated that they continued till morning
of 18.08.2016, the search and seizure lists were prepared
between 04:30 AM and 09:00 PM on 17.08.2016 whereas P.W.4
stated that the raid continued at village Khajurbani for over
three hours only and P.W.6 stated in his evidence that the raiding
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
team came back to the Police Station at 05:00 AM on
17.08.2016. It is reiterated that as per the prosecution case the
police party had arrived at the place of occurrence at about
02:00 AM on 17.08.2016. Hence, if the police party had stayed
at village Khajurbani for over three hours only as stated by
P.W.4 or the police came back at the police station at 05:00 AM
on 17.08.2016 as stated by P.W.6, it is surprising as to how the
seizure lists could have been prepared at the village Khajurbani
between 04:30 AM and 09:00 PM on 17.08.2016.
102. It has rightly been argued on behalf of the
appellants that except the police officials no independent
witness has been examined in this case. The two seizure list
witnesses are not the residents of village Khajurbani. Their
presence at the place of occurrence at 04:30 AM and their
continuance till 09:00 PM on 17.08.2016 appears to be highly
doubtful. In this regard also, the witnesses examined on behalf
of the prosecution are inconsistent. P.W.1 and P.W.5 have stated
that the witnesses to the seizure were present at the place of
occurrence from before whereas P.W.4 stated in his evidence
that the local chowkidar was sent for calling the witnesses and
P.W.3 stated in his evidence that he does not remember the name
of the person, who had called the witnesses to the seizure list.
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
The local chowkidar who, according to P.W.4, called the
witnesses was not examined during trial.
103. Thus, considering the non-production of either the
seized material or their destruction report before the court as
well as non-examination of the seizure list witnesses on behalf
of the prosecution and the other discrepancies in the evidence of
the witnesses relating to searches and seizures, as discussed
above, I am of the considered opinion that the prosecution has
completely failed to establish the essential ingredients of the
offence punishable under Section 30(a) of the Excise Act, 2016.
104. Coming back to the charge under Section 34(a)(b)
(i) of the Excise Act, 2016, in order to constitute the offence, it
was essential for the prosecution to have proved that the
accused-appellants were indulged in mixing or permitting to be
mixed with any liquor sold or manufactured or possessed by
them, any noxious drug or any poisonous ingredient or making,
selling or possessing any preparation, whether solid, semi solid,
liquid, semi liquid or gaseous, either made locally or otherwise,
that may serve as an alcohol or a substitute for alcohol and is
used or consumed for the purposes of getting intoxicated which
is likely to cause disability or grievous hurt or death to human
beings. Further, in order to attract penalty provided under
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
Section 34(a) (b)(i), it was incumbent upon the prosecution to
prove that as a result of the act as provided under Section 34(a)
or (b) done by the accused-appellants death was caused to any
person.
105. Since, I have already held hereinabove that the
prosecution has failed to prove the offence punishable under
Section 30(a) of the Excise Act, 2016, which provides seizure
for manufacturing, possessing, buying, selling, distributing,
collecting, storing, bottling, importing, exporting, transporting
or removing any intoxicant or liquor, it is difficult to hold that
the prosecution has been able to establish the charge under
Section 34(a)(b)(i) of the Excise Act, 2016. Though some of the
witnesses examined on behalf of the prosecution have stated
that altogether 19 persons died due to consumption of poisonous
liquor, the prosecution has not brought on record name of even a
single person, who died due to consumption of poisonous liquor.
The prosecution witnesses are not the eye-witnesses to the
occurrence. They are not victims of the crime. They all are
official witnesses. In absence of any cogent evidence regarding
the searches and seizures of noxious substance with liquor and
in absence of any evidence as to who the victims are, it would
be a travesty of justice to hold that the prosecution has been able
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
to prove the charge under Section 34(a)(b)(i) of the Excise Act,
2016.
106. While saying so, this Court is mindful of the fact
that the prosecution has led into evidence documentary
evidences, such as the FIR and charge-sheet submitted by the
police in Gopalganj Town P.S. Case No. 348 of 2016 by filing
them with list of documents after all the witnesses on behalf of
the prosecution were examined. They have been marked as
Exhibits by the Trial Court without any objection. The
prosecution has not led any oral evidence with respect to the
police case numbered as Gopalganj Town P.S. Case No. 348 of
2016. Thus, the FIR and the charge-sheet of that case would at
best suggest that another case bearing Gopalganj Town P.S.
Case No. 348 of 2016 was registered by the police and pursuant
to the investigation of that case the police found sufficient
material to submit charge-sheet against the accused persons in
that case. Beyond that, those documents do not substantiate
anything against the accused-appellants in respect of the charges
levelled in the present case.
107. In so far as the submission made on behalf of the
State with respect to presumption as to commission of the
offences under the Excise Act, 2016 is concerned, it would be
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
apt to refer to Section 32 of the Excise Act, 2016, which reads
as under:
"32. Presumption as to commission of
offence in certain cases. --
(1) In prosecution under any relevant provision
of this Act, it shall be presumed, until the
contrary is proved, that the accused person has
committed the offence punishable under that
section in respect of any liquor, intoxicant,
material, still, utensil, implement or apparatus,
for the possession of which he is unable to
account satisfactorily.
(2) Where any equipment, machinery, animal,
vessel, cart, vehicle, conveyance or any
premises is used in the commission of an
offence under this Act, and is liable to
confiscation and/or liable to be sealed, the
owner or occupier thereof shall be deemed to
be guilty of such offence and such owner or
occupier shall be liable to be proceeded
against and punished accordingly, unless he
satisfies the court that the offence was
committed without his knowledge or that he
had exercised due care in the prevention of the
commission of such an offence.
(3) Where an offence is said to have been
committed,
- at a place or inside any premises where any
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
toxicant or liquor is found, consumed,
manufactured, sold or distributed, or
- inside any house occupied by a family where
any intoxicant or liquor is found or consumed,
it shall be presumed that all the adults above
the age of eighteen occupying or working at the
place or in the premises or the members of the
family above eighteen years of age occupying
the house are having the knowledge of
commission of such an offence, unless proved
otherwise."
108. A bare reading of Section 32 of the Excise Act,
2016 would demonstrate that it deals with presumption of
culpable mental state of the accused in case he fails to account
for the possession of any liquor, intoxicant, material, still,
utensil, implement or apparatus for manufacturing or storage of
liquor. The failure of satisfactory explanation for possession of
any liquor, intoxicant, material, still, utensil, implement or
apparatus would lay down the foundation for the possession of
the aforesaid articles. It has been rightly argued on behalf of the
appellants that the presumption would not come into picture
merely upon a charge being levelled against the accused-
appellant under the Excise Act, 2016.
109. A similar legislation is there under the Narcotic
Drugs and Psychotropic Substances Act (for short 'NDPS Act).
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
Section 35 and Section 54 of the NDPS Act deals with the
presumption of culpable mental state of the accused.
110. While dealing with an issue whether the mere
charge under the NDPS Act would be enough for presumption
to apply, in Naresh Kumar v. State of H.P., since reported in
(2017) 15 SCC 684, the Supreme Court set aside the conviction
imposed by the High Court against the accused, who was
charged under Sections 20 and 61 of the NDPS Act wherein the
allegation against the appellant was that two kg charas was
recovered from a bag in his possession. In that case the Supreme
Court observed:
"9. The presumption against the accused of
culpability under Section 35, and under Section
54 of the Act to explain possession
satisfactorily, are rebuttable. It does not
dispense with the obligation of the prosecution
to prove the charge beyond all reasonable
doubt. The presumptive provision with reverse
burden of proof, does not sanction conviction
on basis of preponderance of probability.
Section 35(2) provides that a fact can be said to
have been proved if it is established beyond
reasonable doubt and not on preponderance of
probability. That the right of the accused to a
fair trial could not be whittled down under the
Act was considered in Noor Aga v. State of
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
Punjab [Noor Aga v. State of Punjab, (2008) 16
SCC 417 : (2010) 3 SCC (Cri) 748] observing :
(SCC p. 450, paras 58-59)
"58. ... An initial burden exists upon the
prosecution and only when it stands
satisfied, would the legal burden shift.
Even then, the standard of proof required
for the accused to prove his innocence is
not as high as that of the prosecution.
Whereas the standard of proof required to
prove the guilt of the accused on the
prosecution is "beyond all reasonable
doubt" but it is "preponderance of
probability" on the accused. If the
prosecution fails to prove the
foundational facts so as to attract the
rigours of Section 35 of the Act, the actus
reus which is possession of contraband by
the accused cannot be said to have been
established.
59. With a view to bring within its
purview the requirements of Section 54
of the Act, element of possession of the
contraband was essential so as to shift
the burden on the accused. The
provisions being exceptions to the
general rule, the generality thereof
would continue to be operative, namely,
the element of possession will have to
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
be"
10. In the facts of the present case, and the
nature of evidence as discussed, the prosecution
had failed to establish the foundational facts
beyond all reasonable doubt. The Special Judge
committed no error in acquitting the appellant.
The High Court ought not to have interfered
with the same. The submissions regarding non-
compliance with Section 50 of the Act, or that
the complainant could not be the investigating
officer are not considered necessary to deal
with in the facts of the case."
111. In V.D. Jhingan v. State of U.P., since reported in
AIR 1966 SC 1762, the Supreme Court held "... it is not
necessary for the accused person to prove his case beyond a
reasonable doubt or in default to incur a verdict of guilty. The
onus of proof lying upon the accused person is to prove his case
by a preponderance of probability. As soon as he succeeds in
doing so, the burden is shifted to the prosecution which still has
to discharge its original onus that never shifts i.e., that of
establishing on the whole case the guilt of the accused beyond a
reasonable doubt".
112. In Noor Aga v. State of Punjab, since reported in
(2008) 16 SCC 417, while dealing while Sections 35 and 54 of
the NDPS Act, the Supreme Court held "Sections 35 and 54 of
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
the Act, no doubt, raise presumptions with regard to the
culpable mental state on the part of the accused as also place
the burden of proof in this behalf on the accused; but a bare
perusal of the said provision would clearly show that
presumption would operate in the trial of the accused only in
the event the circumstances contained therein are fully satisfied.
An initial burden exists upon the prosecution and only when it
stands satisfied, would the legal burden shift. Even then, the
standard of proof required for the accused to prove his
innocence is not as high as that of the prosecution. Whereas the
standard of proof required to prove the guilt of the accused on
the prosecution is "beyond all reasonable doubt" but it is
"preponderance of probability" on the accused. If the
prosecution fails to prove the foundational facts so as to attract
the rigours of Section 35 of the Act, the actus reus which is
possession of contraband by the accused cannot be said to have
been established.
113. The Supreme Court further held: "With a view to
bring within its purview the requirements of Section 54 of the
Act, element of possession of the contraband was essential so as
to shift the burden on the accused. The provisions being
exceptions to the general rule, the generality thereof would
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
continue to be operative, namely, the element of possession will
have to be proved beyond reasonable doubt."
114. On the basis of the ratio laid down by the Supreme
Court in the abovementioned decisions, it can be safely said that
to shift the burden on the accused-appellants to prove their
innocence an initial burden exists upon the prosecution and only
after the foundational facts for constituting the offence under
Section 34(a)(b)(i) would be established, the burden would shift
upon the accused persons.
115. Since we have already held that the prosecution has
miserably failed to establish the foundational facts for
constituting the offences under Section 30(a) and 34(a)(b)(i) of
the Excise Act, 2016 against the accused-appellants, question of
shifting the burden on the appellants to rebut the presumption do
not arise in the present case.
116. In so far as the offences under Sections 272 and
273 of the IPC are concerned, there is no evidence that the
accused-appellants adulterated any article of food or drink so as
to make such article noxious as food or drink, their conviction
under the aforesaid provisions of the IPC cannot be sustained.
117. Similarly, since there is complete lack of evidence
that the accused-appellants did any act with such intention or
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
knowledge and under such circumstances that it caused death of
any person, they cannot be held guilty of culpable homicide
punishable under Section 308 of the IPC.
118. Thus, on a responsible scrutiny of evidence, it can
safely be concluded that the prosecution miserably failed to
prove their case beyond reasonable doubt for the following
reasons:
(a) In spite of receipt of a definite information
regarding the commission of a cognizable offence,
the S.H.O. OF THE Gopalganj Town Police
Station failed to register FIR.
(b) A major part of the investigation was carried by
the S.H.O. even before the registration of the FIR.
(c) The institution of the FIR and that too not on the
basis the first-hand information received from
Bandhu Ram, but on the basis of self-statement of
the S.H.O. creates suspicion about the initiation of
the criminal prosecution in the present case.
(d) The institution of the FIR after an inordinate and
unexplained delay gives rise to the presumption
that the same was instituted after due deliberations
and consultation.
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
(e) Though Bandhu Ram was the first person who
disclosed about the entire incident to the S.H.O.,
he is neither a witness to the charge sheet nor the
Investigating Officer could meet him during the
entire investigation.
(f) Though the prosecution has tried to make out a
case that 19 persons died due to consumption of
poisonous liquor manufactured and supplied by
the accused persons, none of the witnesses
examined during trial disclosed the name of any
deceased.
(g) The prosecution has failed to bring on record the
postmortem report of the persons, who allegedly
died to consumption of liquor.
(h) It is the case of the prosecution that Bandhu Ram
and others, who were critically ill after the
consumption of spurious liquor were being treated
at the Sadar Hospital, Gopalganj, but neither any
medical report of their treatment was produced
before the Trial Court nor the doctors, who
examined them were examined during trial.
(i) Though the witnesses examined during trial stated
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
in their testimonies that the place of occurrence
was a densely populated village, no local person
was made witness to the searches and seizures of
incriminating materials made from the houses of
the accused-appellants.
(j) Since the two seizure list witnesses belong to
different villages their presence in the village at
the time of searches and seizures appears to be
highly improbable.
(k) Out of the two seizure list witnesses, one was not
examined by the prosecution and the another one
was examined as a defence witness.
(l) No independent witness was examined on behalf
of the prosecution.
(m) Though all witnesses examined on behalf of the
prosecution are police personnel, they have
contradicted each other in material particular.
(n) The FSL report was not supplied to the accused-
appellants either before the framing charge in
compliance of Section 207 Cr.P.C. or after the
framing of charges during the trial.
(o) The essential ingredients of the offences for which
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
the charges were framed by the Trial Court were
not proved during the trial.
(p) There is no oral evidence regarding the
incriminating articles seized from the respective
houses of the appellants.
(q) The so-called incriminating materials seized in
connection with the case was not produced before
the court.
(r) There is no destruction report of the seized
materials.
(s) It is not known where the seized materials were
kept after the seizure.
(t) There is no evidence to suggest that any sample
was drawn on the spot of recovery of any
intoxicant or liquor.
(u) There is no evidence regarding the house or the
place from where the materials seized were sent to
the FSL for chemical examination.
119. Accordingly, the impugned judgment of conviction
dated 26.02.2021 and the consequent order of sentence dated
05.03.2021 passed by the learned Additional District &
Sessions Judge-II-cum-Special Judge (Excise Act), Gopalganj
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
in Sessions Trial No. 967 of 2016 arising out of Gopalganj P.S.
Case No. 347 of 2016 are, hereby set aside. The appellants
Chhathu Pasi (Cr.Appeal (DB) No. 312 of 2021), Laljhari Devi,
Kailasho Devi, Rita Devi and Indu Devi (Cr. Appeal (DB) No.
350 of 2021), Nagina Pasi, Lal Babu Pasi, Kanhaiya Pasi,
Munna @ Munna Pasi, Ranjay Choudhary @ Ranjay Pasi,
Sanjay Choudhary @ Sanjay Pasi, Sanoj Pasi and Rajesh Pasi
(Cr. Appeal (DB) No. 351 of 2021 are acquitted of the charges
levelled against them. They shall be released from jail forthwith
unless they are required in any other case.
120. Since I have allowed the appeals and set aside the
impugned judgment of conviction and order of sentence, the
reference made by the Trial Court for confirmation of death
sentence by Death Reference No.5 of 2021 is hereby rejected.
121. Before parting with this judgment, I must record
that this Court had occasion to notice a considerable number of
judgments of the Trial Court subjecting the accused persons to
maximum sentences including death sentences, which have
ended in clean acquittal on reference and appeal. The samples
are numerous.
122. What surprises this court is the weird process of
casual reasoning implied by the Trial judges in appreciating the
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
evidence. It appears that the judgments of the Trial Court are
more because of personal feelings rather than being deliberate
based on facts and proof. It only goes to show that the Trial
Courts relied upon limited number of heuristic principles and
reduced complex judgment process and complex task of
assessing possibilities and predicting values to very simple
judgment operations leading to systematic errors.
123. Though heuristics are useful instrument of arriving
at conclusions, the deployment of heuristics are also coloured
by associative and other biases and prejudices leading to
overestimation or underestimation of the evidence.
124. This Court would take note of the fact that several
irrelevant factors go into making of judgment by the Trial
Judges of this State. They are not averse voluntarily and
deliberately to allow their judgments to be influenced by
systematic errors in thinking processes or by cognitive biases.
125. The Judges are supposed to be persons with skills
and expertise in the field of justice dispensation. A lot of time
and money is expended by the State to train them to dispense
justice and not mere passing of orders yet the appreciation of
evidence leaves lot to be desired. Severe errors in judgments
have been noticed by this Court, which cannot be termed as a
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
mere error or flaw in human judgment but shows complete lack
of skill and training to appreciate the evidence. The magnitude
of fallacy in appreciation of evidence can be imagined in such
cases where the judgments swing from conviction and
maximum sentencing (including imposition of death sentence)
to clean acquittal in the course of appeal. The Trial Judges are
completely oblivious of the consequences of their decisions on
the families, who have to suffer insurmountable miseries only
for the reason that the Trial Judge has not duly applied himself
to the evidence available on record.
126. In today's fast paced lifestyle, we often feel
increasingly pressured to make instant, fast and efficient
decisions that allow us to meet the demands that are made of us.
The primacy of this way of judging tends to slow thinking to
the background. The process of thinking and processing of
information by brain involves two different systems. While one
is fast and intuitive, but prone to systemic errors, biases and
prejudices while the other is slow and deliberate and leads to
controlled decision making and beneficial even in the most
complex cases that require deeper reasoning.
127. The criminal trials involve complex process of
collation and analysis of countless evidences and requires
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
intensive attention which is an exclusive function of Trial
Judges. The Trial Judges, who are supposed to be persons
trained and skilled to apply themselves to the evidences have
repeatedly failed the criminal justice system and have allowed
their judgments clouded by irrelevant factors.
128. The Trial Judges cannot resort to heuristics to
resolve problems of complex factual aspects of criminal trial
and randomly apply law to the facts in a completely
unstructured manner, which would lead to travesty of justice.
129. They have duty to protect the rights of the accused
and the interests of the public in the administration of criminal
justice. They have responsibility to hold the trial in appropriate
manner in order to promote just determination of the trial,
which is the prime object of a criminal trial. Their responsibility
is to determine whether the prosecution has been able to prove
the charges against the accused beyond reasonable doubt and
establish the guilt of the accused as required by law. They are
required to conduct each trial with unbiased approach. They are
required to give each case an independent treatment and the
final determination should be based on particular facts of that
case and the relevant laws. They need to appreciate evidences
objectively. They are required to be committed and sensitive to
Patna High Court D. REF. No.5 of 2021 dt.13-07-2022
ensure a fair trial and determination of the case. They are
required to be familiar with and adhere to the cannons of the
statutes applicable to the individual case in order to ensure
proper administration of criminal justice.
(Ashwani Kumar Singh, J)
Harish Kumar, J: I agree.
( Harish Kumar, J)
Pradeep/-
AFR/NAFR AFR
CAV DATE 12.05.2022
Uploading Date 13.07.2022
Transmission Date 13.07.2022
