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TMI Blog2014 (7) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... the information given by the informant, on 06.07.2002 at village Bholumuda besides Kinkamani Nala caught the accused/applicant with 30 bulk liters of country made liquor kept in motor vehicle tube along with instrument for measurement and other articles, he was arrested immediately thereafter and after coming back to the police Station, Crime No. 49/2002 was registered and the seized country made liquor was tested to be litmus test and other tests; and upon the said tests, Excise Sub Inspector, circle Baramkela, District Raigarh confirmed the seized liquor to be the country made liquor/intoxicant. (2.2) After investigation charge sheet was filed before the competent jurisdictional Criminal Court against the accused/applicant. Accused/applicant abjured the guilt and decided to enter into defence stating that he has been falsely implicated in the crime in question. (2.3) In order to bring home the above stated offence, during the course of trial, the prosecution has examined following four witnesses namely:- (i) Hafij Khan (PW-1) is a seizure witness vide Ex.P-1. (ii) Mukesh Agrawal (PW-2) is the Excise Sub Inspector, who has tested the seized liquor and submitted his report vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of Section 2(11-a) of the Act of 1915. He would further submit that the provisions of Section 57 of the Act, 1915 i.e obligation of Excise Officer to report to his immediate Superior Officer and the provisions contained in Section 57-A of the Act, 1915 has not been scrupulously followed by the concerned Police Officer and, therefore, the conviction recorded and sentence awarded by both the courts below are liable to be set aside, as vitiated due to non-compliance of mandatory provisions contained in the Act of 1915. (6) Opposing the above-noted submissions, Mr. Anand Verma, learned Panel Lawyer for the State would submit that while making investigation, the provisions of Sections 57 and 57-A have been religiously followed by the prosecution. He would further submit that chemical examination made by Sub Inspector adopting the smell test and litmus test for identification of the liquor cannot be faulted with as it is duly recognized and accepted method of identifying the liquor, and therefore, the revision is liable to be set aside. (7) I have heard learned counsel appearing for the parties and perused the records of both the courts below with utmost circumspection. (8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Court to decide whether upon a consideration of the totality of the facts in a case it has been satisfactorily established that the objects recovered from the accused was liquor of prohibited strength. Paragraphs 12 & 13 of the report states as under:- "12. Another question before us is whether the Excise Inspector, whose evidence was under consideration, had sufficient knowledge to be deemed to be an expert within the meaning of Section 45 of the Evidence Act so that the tests adopted by him, together with all the attendant circumstances, could establish beyond doubt that the appellant was in possession of illicit liquor. We think that these are also essentially questions of fact. If there is sufficient evidence led by the prosecution to establish its case it becomes the duty of the defence to rebut that evidence. In the case before us, the appellant's Counsel cross-examined Shri C.D. Mishra, P.W. 1, Excise Inspector, at considerable length but the whole of this cross-examination was directed at showing that the recoveries were not made from the possession of the appellant. No question was put to him in cross-examination to suggest that the appellant questioned the composi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by Mukesh Agrawal, Excise Sub Inspector (PW- 2) 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. Answer to Question No.2 (16) In order to judge the correctness of the order, it would be profitable to notice Sections 57 and 57-A of the Act, 1915, which read as under:- "Section-57. Report by Excise Officer - Where any Excise Officer below the rank of Collector makes any arrest, seizure or search under this Act, he shall, within twenty-four hours thereafter, make a full report of all the particulars of the arrest, seizure or search to his immediate official superior, and shall, unless bail be accepted under Section 59, take or send the person arrested, or the thing seized, with all convenient dispatch, to a Judicial Magistrate for trial or adjudication". Section-57-A. Police to take charge of articles seized - An officer in charge of a police station shall take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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