2014 (7) TMI 1006 - HC - Indian Laws

Office under Section 34(1)(a) of the Chhattisgarh Excise Act, 1915 - illicit liquor - validity of conviction recorded by Judicial Magistrate First Class - sentence awarded to him is reduced to simple imprisonment for one month - Held that - Chemical examination of illicit liquor is not mandatory, it can be proved in any other manner relying upon the other tests - test report submitted by Mukesh Agrawal, Excise Sub Inspector after holding the litmus and smell test identifying the liquor as intoxicant is clearly acceptable and Mr. Mukesh Agrawal, Excise Sub Inspector can be treated as an expert within the meaning of Section 45 of the Evidence Act and the trial Court and the appellate court have not committed any illegality in accepting the said report, identifying the liquor as intoxicant. It is well settled that scope of revision under Sections 397/401 of the Cr.P.C. is very limited. The trial Court as well as appellate Court have concurrently held that prosecution has succeeded in establishing the offence under Section 37(1)(a) of the Act of 1915 beyond reasonable doubt. After examining the said finding, this Court has reached to the conclusion that finding of fact recorded by both the courts below are based on evidence available on record. Once the finding of fact based on evidence available on record, this Court in excise of its revisional jurisdiction would not interfere with the finding of fact so arrived into. - revision petition dismissed - decided against the petitioner.

Summary

Issues Involved:
1. Legality and propriety of the smell test and litmus test for identifying liquor.
2. Compliance with Sections 57 and 57-A of the Chhattisgarh Excise Act, 1915.

Issue-Wise Detailed Analysis:

1. Legality and Propriety of the Smell Test and Litmus Test for Identifying Liquor:
The primary question was whether the smell test and litmus test applied by the prosecution to identify the seized object as an intoxicant were legal and proper. The Property Seizure Memo indicated that 30 bulk liters of country-made liquor were seized and referred to the Excise Sub Inspector for examination. The Excise Sub Inspector conducted the smell and litmus tests and confirmed the substance as liquor under Section 2(11-a) of the Act of 1915.

The defense did not challenge the validity of these tests during the trial or appellate proceedings. The court referenced the Supreme Court's decision in Sri Chand Batra v. State of U.P. AIR 1974 SC 639, which held that chemical testing is not absolutely necessary for identifying liquor; the totality of facts and circumstances can suffice. The court also noted that the Madhya Pradesh High Court in Kallu Khan v. State of M.P. held that chemical examination is not mandatory and can be substituted with other recognized tests.

Based on this precedent and the absence of any challenge to the tests' validity, the court concluded that the smell and litmus tests were proper and sufficient for identifying the liquor as an intoxicant. The Excise Sub Inspector was deemed an expert under Section 45 of the Evidence Act, and the trial and appellate courts did not err in accepting his report.

2. Compliance with Sections 57 and 57-A of the Chhattisgarh Excise Act, 1915:
The second issue was whether the provisions of Sections 57 and 57-A of the Act of 1915 were followed. Section 57 requires an Excise Officer below the rank of Collector to report any arrest, seizure, or search within twenty-four hours and take the person or thing seized to a Judicial Magistrate. Section 57-A mandates that the police take charge of seized articles and allow Excise Officers to affix seals and take samples.

The court found that Section 57-A was not applicable as the seizure was made by the Station House Officer, not an Excise Officer. The seized liquor was duly sealed and sent to the Excise Sub Inspector for examination, as evidenced by the documents and testimonies presented. No questions were raised during the trial or appellate proceedings regarding the sealing or handling of the seized liquor. The court rejected the defense's argument of non-compliance with Section 57-A, noting that this issue was raised for the first time during revision.

Conclusion:
The court held that the smell and litmus tests were legally and properly conducted, and the Excise Sub Inspector's report was valid. The court also found that the provisions of Sections 57 and 57-A of the Act of 1915 were duly followed. Consequently, the revision was dismissed, and the applicant was directed to surrender to serve the remaining sentence. The findings of the trial and appellate courts were upheld, as they were based on evidence and did not warrant interference under the limited scope of revision under Sections 397/401 of the Cr.P.C.