RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No.204 of 2007 State of Uttarakhand … Appellant Versus Ganesh Ram S/o Nain Ram, R/o Village Rin Bichhul, Patti Bishonakhan, Tehsil Didihat, District Pithoragarh … Respondent Mr. Hari Om Bhakuni, Brief Holder for the State/appellant Mr. M.S. Pal, Sr. Adv. assisted by Mr. Lalit Sharma and Mr. Deepak Bisht, Advocates for the respondent Dated: September 12, 2011 Hon’ble Servesh Kumar Gupta, J. This appeal has been preferred by the State challenging the judgment and order dated 23.11.2006 passed by the Sessions Judge, Pithoragarh whereby the judgment and order of Special Judicial Magistrate, Pithoragarh dated 1.8.2006 was set aside. Vide the said judgment of the learned Magistrate, accused/respondent Ganesh Ram was found guilty for the offence of Section 60(1)(a) of Excise Act and sentenced to undergo one year’s R.I. nay Rs.5,000/- fine. In default of payment of fine, he was further directed to undergo six months’ imprisonment. Accused/respondent Ganesh Ram, after the judgment of conviction recorded by the Magistrate against him, deposited a fine of Rs.5,000/- in the court on 8.8.2006 and preferred the appeal which was numbered and titled as Criminal Appeal No.9/2006, Ganesh Ram Vs. State. The learned Sessions Judge having gone through the evidence on record, passed the judgment of acquittal, whereagainst the State has filed this appeal. 2 2. The facts are that on 2.10.2005 at about 6 PM, Excise Inspector D.S. Rawat accompanied by his staff including Mohan Chand Kothari Head Excise Constable and Sri Lal Singh Rana, Sri Anand Snigh Dosad both excise constables were present in order to check the illegal importing of the contraband liquor within the territorial jurisdiction of P.S. Kotwali Pithoragarh. He got information that the illegal liquor was being transported from a place ‘Thal’ towards Pithoragarh town in a Mahindra Max Jeep and the same has to be sold in the town. That informer also disclosed the selling of the contraband liquor, six cases (72 bottles) to one person Gajendra Ram who resides in a rented accommodation near Maharshi Vidya Mandir at roadside place ‘Jajar Deval’. Believing this information, the Excise Inspector Sri Rawat waited for the arrival of the said Jeep. Soon thereafter, Mahindra Max Jeep No.CH-02-1325 became visible coming towards Pithoragarh. The Jeep was stopped near Salmora Petrol Pump by the Checking Party and found two black coloured painted iron tin boxes and one bag therein. The jeep was occupied by the driver Keshav Ram and beside him in front seat, Ganesh Ram-respondent was sitting in the army uniform. On being asked, the respondent disclosed that he himself is the owner of the said Jeep. Excise Inspector introduced himself and asked the respondent to show the tin boxes and the bag kept in the jeep. Respondent Ganesh Ram, asserting himself to be an army personnel, showed the awesome demeanour and hampered to obey the command of the checking staff. Sri Rawat pressed the respondent to follow the directions, and then latter opened the lock of the boxes and bag. It was found that two boxes were having five cases each of English Liquor (60+60=120 bottles) and the bag was having 10 Bottles of Whisky; in total, 130 Bottles of liquor manufactured from Patiala Distillery were recovered from the 3 accused/respondent wherefore he could not show any authorized paper to transport them to hills. Respondent Ganesh Ram also disclosed that a day before, he had sold six cases (72 bottles) of English Wine to Sri Gajendra Ram, who is home guard Commandant and lives at ‘Jajar Deval’ on a rented accommodation. Respondent Ganesh Ram was arrested at the spot for the offence of Section 72 Excise Act and the entire liquor along with the said Jeep and its papers were taken into custody by Sri D.S. Rawat. Later on, it was disclosed that the said Jeep was owned by the wife of Ganesh Ram, named Smt. Munni Devi and was purchased from Chandigarh. Respondent Ganesh Ram, residing along with his family at Chandigarh, was an army personnel. The recovered contraband liquor was put to test with the help of Litmus paper and thus, affirmed to be the foreign liquor. Recovery memo was prepared at the spot and was signed by both the accused persons along with the checking staff constables and Sri D.S. Rawat, Excise Inspector. This recovery memo is Ex.Ka-2. 3. Before raiding the accused persons, Sri D.S. Rawat prepared a search memo stating that due to paucity of time, there is no occasion to procure the search warrant from the concerned authority. So, believing the information regarding transportation of contraband liquor, he left for conducting the raid. This search memo is Ex.Ka-2. 4. The Excise Inspector recorded the statement of accused Ganesh Ram as well as of the driver Keshav Ram, which are respectively Ex.Ka-4 and Ka-5, wherein both have confessed their guilt and the story which has been disclosed in the recovery memo. Accused Ganesh Ram has accepted to be the army personnel posted in Chandigarh as Hawaldar; he is permanent resident of village Rin Bisul, Patti Bisna Khan, 4 Tehsil Didihat, District Pithoragarh and has completed 16 years of his service in the army; at the occasion of Navratri festival, he was coming from Chandigarh to his native place and due to greed nurtured in his heart to earn more and more money, he purchased 20 cases of Rum from Chandigarh Wine Shop in addition to the Whisky recovered as above and the same was being transported from the Max Mahindra Jeep No.CH02-1325 owned by his own wife. He also accepted that while on the way, six cases have been sold by him to the Commandant Home Guard Gajendra Ram based at ‘Jajar Deval’ near Maharshi Vidhya Mandir. Accused Keshav Ram, who was simply a driver and was driving the vehicle at the command of the owner of the vehicle, accepted this entire incident. 5. The recovered liquor was sent for preservation in the Sadar Maalkhana of concerning police station with the order of Judicial Magistrate, Pithoragarh. The memo of submitting the said liquor to the Maalkhana is Ex.Ka-6. Accused Ganesh Ram moved an application to the District Excise Officer, Pithoragarh for taking back his identity card issued by the Army and this application is Ex.Ka-3. A chargesheet was submitted to the court of Magistrate, which is Ex.Ka-7 and the prescribed format of the chargesheet is also Ex.Ka-7. 6. The Magistrate has examined PW1 D.S. Rawat, Excise Inspector, PW2 Mohan Chand Kothari, Sub Inspector Excise and PW3 Lal Singh Rana, Excise Constable. Accused Ganesh Ram has abjured his guilt but accepted that the vehicle no.CH02-1325 is owned by his wife. He has stated that all the prosecution papers have been fabricated by the Excise Inspector. He has further stated that on the relevant date and time, he was returning to his workplace from his native place. At the place, his vehicle was stopped by Excise Inspector and 5 as a result of altercations exchanged from each other, the Excise Inspector forced him to open his box and briefcase and threw the articles of the said box and briefcase helter skelter. 7. Accused Ganesh Ram also produced DW1 Dhani Ram in his defence. 8. After hearing the arguments, the learned Special Judicial Magistrate convicted the respondent/accused Ganesh Ram as above. 9. This Court has heard the learned Brief Holder for the State as well as the learned senior counsel on behalf of the accused/respondent and has also perused the entire material available on the record. 10. Learned senior counsel of the respondent/accused has relied upon the precedent of the Hon’ble Apex Court in the case of “Sambhaji Hindurao Deshmukh and others Vs. State of Maharashtra reported in 2008 (1) CAR (SC) 235” wherein the Hon’ble Apex Court has expressed its view regarding the scope and extent of powers of the High Court to interfere with the judgment of acquittal in appeals. It was held that the High Court will not interfere with the acquittal by trial unless there are strong reasons based on evidence which can dislodge the findings arrived at by the trial court which were the basis for the acquittal. The High Court has to give due importance to conclusion of trial court, if they had been arrived at after proper appreciation of the evidence. It was further opined by the Apex Court that the High Court will interfere in appeal against acquittals only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly- when two views being possible from the evidence on record, one favouring the accused and one against the accused, then High Court is not expected to reverse 6 acquittal merely because it would have taken the view against the accused had it tried the case. 11. Learned senior counsel relied upon another precedent of the Hon’ble Apex Court in the case of “Chikkarangaiah and others Vs. State of Karnataka reported in (2011) 1 SCC (Cri) 1071” wherein it was held that in our criminal law jurisprudence which is based on the adversarial model, an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by establishing guilt of the accused beyond reasonable doubt by produceing the evidence to show him to guilty of the offence with which he is charged. 12. Further, if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. However, at the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful or purely imaginary grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. Ultimately and finally the decision in every case depends upon the facts of each case. 13. In the instant case, the prosecution has alleged the recovery of 130 bottles of factory-made liquor from the respondent/accused. Out of these 130 bottles, 120 were of 7 Rum which were manufactured in the Chandigarh-Patiala based distillery and 10 bottles of the Whisky which were also manufactured in the same distillery based at Punjab. All these bottles were being transported by accused Ganesh Ram in the Jeep owned by his own wife. Ganesh Ram is an army personnel of pretty seniority of sixteen years and having his native place at Pithoragarh. At the relevant point of time, he was posted in Chandigarh itself and it has been accepted by himself that this jeep was owned by his own wife. The registration number of the jeep CH-02-1325 also indicates that this Mahindra Max Jeep was purchased from Chandigarh itself. It has been proved in the evidence that Ganesh Ram resides at Chandigarh along with his family, so it was but natural for him to use the above numbered jeep for transporting the said liquor because in the hills, there is a restriction and the heavy excise duty is to be paid before transporting the same to this province, while in Punjab and Haryana, the prices of the liquor are too cheaper. While the trial court, i.e. the Court of Magistrate has found the recovery of this liquor proved on the basis of evidence of the Excise raiding staff, at the same time, the learned Sessions Judge has doubted the recovery on the very fickle and unsubstantial grounds. It was not probable for the Excise Inspector along with his companion staff to plant this huge number of bottles of English liquor from the possession of the accused. They did not have enmity or animosity with the accused from before. Simply saying that he had some altercations on the question of checking with the Excise Inspector, is not enough for the latter to plant this much heavy recovery from the accused. All the witnesses of the fact have proved the prosecution version of the recovery after the resistance extended by Ganesh Ram in his army uniform on the question of search. He was forced to put off his army uniform and then photographs of him 8 along with the recovered contraband liquor were taken and the same has been proved by the formidable oral testimony before the trial court. 14. The explanation on behalf of the accused that both black tin boxes were having the quilts, pillows and the clothes is not acceptable because while going from the remote hills to Chandigarh (a modern city), it is not practicable that a person will carry the quilt and pillows in the tin box. It is the case of Ganesh Ram that he was leaving his native place on the relevant date and time in his Jeep owned by his wife to the place of his posting. It is very strange that an Army Soldier of almost 15-16 years service in the Army will carry the quilt and pillow locked in two tin boxes, much less than in a holdall from his village to the modern town Chandigarh where his family resides. This is totally a concocted explanation offered by the accused Ganesh Ram which is not acceptable. 15. Learned senior counsel has further argued that the allegedly recovered liquor was not sent for chemical examination to any laboratory. He has relied upon the precedent of Punjab and Haryana High Court in the case of “The State of Haryana Vs. Radhey Shyam reported in 1977 Cri. L.J. 528” wherein it was held that it is for the prosecution to prove that the material recovered from the accused was only liquor and nothing else. Examination by the Excise Inspector with the help of Hydrometer is neither safe nor conclusive. Hence the material recovered should be tested by Chemical Analyser. 16. The next precedent relied upon by the learned senior counsel is of the Hon’ble Supreme Court in the case of “State of Andhra Pradesh Vs. Madiga Boosenna and others reported in AIR 1967 Supreme Court 1550 (V 54 C 323)”, wherein the Hon’ble Apex Court has opined that “burden of proving the 9 recovered commodity in question, as liquor, comes upon the prosecution”. In that case, except for a general statement, contained in the evidence of the witnesses, particularly P.Ws.1 and 4, that there was a strong smell of alcohol, emanating from the tins, which were pierced open, there is no other satisfactory evidence to establish that the article is one coming within the definition of the expression liquor. Merely trusting to the smelling sense of the Prohibition Officers, and basing a conviction on an opinion expressed by those officers, under the circumstances, cannot justify the conviction of the respondents. In our opinion, better proof by a technical person, who has considered the matter from a scientific point of view, is not only desirable but even necessary, to establish that the article seized is one coming within the definition of ‘liquor’. This precedent, with all due respect, is not applicable in the instant case because in the above cited case, the alcohol smell liquid was recovered in a tin which was pierced open. There was no label to show its authenticity of being liquor, while in the instant case, there were factory made 130 government Patiala- Chandigarh distilleries sealed bottles which were duly labelled to display the brand and kind of contents. Fortiori, the Hon’ble Apex Court later in the case of “Sri Chand Batra Vs. State of U.P. reported in (1974) 4 SCC 247” did not follow its earlier view, as expressed in the Madiga Boosenna case. The Supreme Court while distinguishing and limiting the ratio laid down in Madiga Boosenna’s case to its own facts, held that it is not desirable to lay down an inflexible rule on questions of fact even though their determination requires the adoption of scientific methods and tests. It is really for the Court of fact 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 10 possession of the accused included liquor of prohibited strength. 17. On facts held that where an accused person who could be presumed to have enough knowledge about the composition and strength of the prohibited liquor did not raise this question in the trial Court so that the prosecution may cure whatever weakness there might be in the evidence on that point, he should not be allowed to raise it in the Supreme Court, a stage when it may be difficult or impossible to adopt a conclusive test. 18. The Apex Court further held that the Excise Inspector, whose evidence was under consideration, if on the basis of pretty number of years of service, has sufficient knowledge of testing the samples of liquor and illicit liquor, then he should be treated as an expert within the meaning of Section 45 of the Evidence Act. The Excise Inspector, who in addition to employing the smelling test used all the other tests he could reasonable adopt, then his evidence regarding the identity of the recovered liquid can be accepted in the evidence. 19. In the instant case also, the Excise Inspector Sri D.S. Rawat has also conducted the test of smelling as well as the test based on Litmus, and has affirmed that the recovered liquid from the accused was the liquor, albeit all the recovered liquid was very well sealed and labelled in the bottles with the apparent look that all these bottles were the production of the Government distillery based at Patiala-Chandigarh at Punjab. 20. In the trial court, the accused did not raise any question about the competence of the Excise Inspector Sri D.S. Rawat, who has, after the litmus test, besides smelling and the power of observance on the basis of his long experience, determined the recovered bottles as of the illicit liquor. Government 11 factory manufactured liquor, sealed and labelled in the bottles itself is a formidable proof of its nature and to carry those bottles to the public analyst, is not needed at all. Such action is necessary only where the recovered contraband liquor is country-made. In this regard, the Rule 282 of the U.P. Excise Laws envisages as under: - 282. Analysis of and precaution as to intoxicants which may be produced in evidence: (1) When it appears necessary to the Excise Inspector or other officer prosecuting an Excise case that an intoxicant produced in the case should be analysed, he should move the Magistrate conducting the inquiry to have such an analysis carried out by the Chemical Examiner. Only the Magistrate in question can make a reference to the Chemical Examiner (vide paragraph 499 of the manual of Government Orders). 21. The above Rule reflects that it is not necessary in every case that the recovered liquor must be sent for chemical analysis. 22. Learned Sessions Judge has recorded the finding of acquittal on the basis of minor discrepancies in the oral testimony of the witnesses, while it is the settled principle of law that in every criminal trial, minor contradictions and discrepancies are always bound to occur because the power of observance by various witnesses at a point of time and the description of the incident in the court at different times varies. The retention of the sequence of incident and the minor details in the memory and narrating the same on being enquired by the defence counsel in the court, varies from person to person depending upon many factors. Hence, the minor discrepancies or contradictions, if they are not shattering the very substance of the prosecution case, should be ignored by the court. 12 23. As far as the confiscation of the vehicle is concerned, the learned Magistrate while recording the finding of conviction, has passed the order of confiscation of vehicle No.CH-02-1325, wherein the contraband liquor was being transported. The learned Sessions Judge in her judgment, without mentioning any provision of the relevant law, has opined that the proceedings of confiscation are made separately from that of the trial. But here, it would be relevant to mention Section 452(1) Cr.P.C. which reads as under: - 452. Order for disposal of property at conclusion of trial. “(1) When an inquiry or trial in any Criminal Court is concluded, the court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.” 24. The Allahbad High Court in the case of “Prem Nath Arora Vs. State reported in AWC (1996) Page 1858” has opined that even in the Excise cases, the Magistrate has wide enough power to dispose of the incriminating property. It may include referring the matter to Collector to initiate confiscation proceedings u/s 72 of the U.P. Excise Act. This power is vested in the Court by the word “otherwise” used in the language of Section 452 Cr.P.C. This Court too agrees with the view of the Allahbad High Court as above. This way, the powers of confiscation vested in the Collector u/s 72 of U.P. Excise Act are in addition to the powers of Section 452 Cr.P.C. vested in the trial court. 25. The accused has examined DW1 Dhani Ram, a retired armed constabulary man in his favour, who has accepted that 13 he and the accused Ganesh Ram belongs to the same caste. It also appears that this witness Dhani Ram is a resident of village in the vicinity of the native place of the accused. His evidence appears to be false patently just to favour the accused Ganesh Ram against the strong factual evidence which has been produced by the prosecution. 26. The statement of accused Ganesh Ram and the driver Keshav Ram, which are Ex.Ka-4 and Ka-5 respectively, recorded by Excise Inspector just after the recovery of the contraband liquor, is also relevant and admissible in such matters. At least the corroborative value of these statements can be inferred with rest of the evidence available on the record. 27. On the basis of the reasons stated above, this Court is of the considered opinion that the judgment and order rendered by learned Sessions Judge, Pithoragarh dated 23.11.2006 cannot be allowed to sustain and liable to be set aside. There cannot be any other view in favour of the accused, as has been expressed by learned Sessions Judge on the basis of unsubstantial discrepancies. At the same time, the judgment and order dated 1.8.2006 passed by the learned Magistrate is sustainable. 28. In view of the foregoing reasons, the appeal preferred by the State is allowed. Judgment and order dated 1.8.2006 passed by the Special Judicial Magistrate, Pithoragarh in Criminal Case No.174 of 2006, thereby convicting and sentencing the accused/respondent Ganesh Ram u/s 60(1)(a) of the Excise Act for one year R.I. with fine of Rs.5,000/-, and in default six months’ additional imprisonment, is sustained and affirmed. Resultantly, the judgment and order dated 23.11.2006 passed by the Sessions Judge, Pithoragarh is quashed. 14 29. Lower court record along with copy of this judgment be sent to the trial court concerned for compliance forthwith. (Servesh Kumar Gupta, J.) September 12, 2011 Rajeev Dang