O.P.Pradhan - (1.) THIS revision by convict is directed against the judgment and order dated 30.9.1983 rendered by Sessions Judge. Sitapur in Criminal Appeal No. 158 of 1982.
(2.) BRIEFLY speaking, the farts giving rise to this revision are that on 18.10.1979. S.I. Radhey Shyam Sharma. after getting secret information that a person coming from Lakhimpur via Manpur was in wrongful possession of some liquor, in company of some Police Officials and public witnesses, reached near about the Railway crossing on Sitapur-Biswa road at about 10.50 a.m. After about 20 minutes, a jeep bearing Wo. USO/ 6570 driven by the revisionist was noticed coming from the side of Sitapur. The jeep was stopped and the revisionist was overpowered and apprehended by the police. On search of the jeep, two bags one of which contained 15 bottles and the other 30 bottles of wine were seized by the S. I. Radhey Shyam Sharma. These bottles had the level of Co-operative Sugar Factory. Bazpur Naini Tal and the seal of U.P. Excise Distillery. There was prohibition in district Sitapur at that time but the revisionist had no licence for the possession of the aforesaid bottles of liquor. The jeep was also seized by the Police and seizure-memo Ex. Ka-1 was prepared on the spot. S.I. Sharma lodged F.l.R. at Police-Station Biswa on the same day at 1.45 p.m. The investigation followed and the revisionist was put up for trial in the Court of II Additional Munsif-Magistrate, Sitapur. He was charged under Section 60 (1) (a) of the U.P. Excise Act and Sections 112 and 123 of the Motor Vehicles Act. He pleaded not guilty to these charges and claimed false implication on account of enmity with the Police. The prosecution examined four witnesses and the revisionist examined one witness in defence. After appreciating the evidence adduced before him, the learned Munsif-Magistrate convicted the revisionist under Section 112 of the Motor Vehicles Act and sentenced him to pay a fine of Rs. 50 and in deafult to undergo one week's simple imprisonment. He however acquitted the revisionist of the charge under Section 123 Motor Vehicles Act. The learned Munsif-Magistrate also found the revisionist guilty under Section 60 (1) (a) of the U.P. Excise Act and sentenced him to undergo one year's R.I. and pay a fine of Rs. 50 and in default to undergo one month's simple imprisonment. Feeling aggrieved by this order of conviction and sentence, an appeal was preferred in the Court of Sessions Judge. Sitapur which gave rise to Cr. Appeal No. 158 of 1982. It was heard and dismissed by the learned Sessions Judge himself by the impugned judgment and order. Still dissatisfied, the convict preferred this revision. I have heard the learned counsel for the parties and perused the lower court record including the impugned judgmsnt. Two questions have been urged by the learned counsel for the revisionist for consideration in this revision. Firstly, whether the Excise Inspector. Ram Prakash Srivastava, P.W. 4 could be considered as expert whose opinion about the nature of the liquor found in the bottles was admissible under Section 45 of the Indian Evidence Act? And secondly, whether the prosecution has succeeded in establishing that the bottles, containing the liquor, were not tampered with and remained intact under seal till they were examined by the Excise Inspector, Ram Prakash P.W. 47. It will be seen from the statement of the revisionist under Section 313 Cr. P.C, that he made a wholesale denial of the allegations and circumstances placed before him. He produced in defence Jan Ali., D.W.I to say that the revisionist was apprehended by the Police from his house. His evidence, has been rightly discarded by the learned Magistrate. lt further appears from the evidence of S.I. Sharma. P.W. 1 that the revisionist, who was driving the jeep, tried to run away after the jeep stopped near about the Railway crossing but he was apprehended by the Police. This also indicates that he wanted to keep his distance from the liquor which was being carried in the jeep. It may be assumed that he was not ignorant about the wrongful possession of the liquor in the jeep.
(3.) THIS apart, the prosecution examined Ram Prakash Srivastava, P.W. 4 who stated that he was posted as Excise Inspector, Biswa Sitapur on 19.4.1980 and that he had examined the liquor of 45 battles which were brought to him in two sealed bundles by Constable Subedar retailing to Crime No. 261 of 1979. After examination of the liquor, contained in the bottles, he prepared his report Ex. Ka-4 which he also proved in the Court. A perusal of this report indicates that he had examined the liquor by three modes. Firstly, he ascertained the strength of the liquor. Secondly, by chemical examination he ascertained that the liquor's composition corresponded to U. P. Excise Distillery/Ware-house. Thirdly, by physical examination, he also confirmed the nature of the liquor. Strangely enough, his evidence was not subjected to any cross-examination at all on behalf of the revisionist. It is also noteworthy that his competence to examine the liquor in question was not challenged in the trial court. Hon'ble the Supreme Court laid down in the case reported in 1974 (4) SCC 247 (Sri Chand Batra v. Stale of U. P.) 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 possession of the accused included liquor. In the instant case, the courts below were satisfied on a consideration of the evidence of Ram Prakash Srivastava, P.W. 4 coupled with his report Ex. Ka-4 that the liquor contained in the bottles was wine of a particular strength and that its composition corresponded to the wine of U. P. Excise Distillery/Warehouse. There is no defence evidence to indicate that ihe liquor contained in the bottles could be anything else. In the circumstances aforesaid, it has to be found that Ram Prakash Srivastava, P.W. 4 who was the Excise Inspector at the material time could be treated as an expert within the meaning of Section 45 of the Indian Evidence Act. He had, in addition to employing the smelling test, used all the other tests he could reasonably adopt. If his competence to give his opinion or the sufficiency of the tests adopted by him had been questioned in the trial court, the prosecution could have been in a position to lead more evidence on these questions. Accordingly the first question urged by the learned counsel for the revisionist is answered in the affirmative. With regard to the second question, it may be pointed out that Ram Prakash Srivastava, P.W. 4 stated on oath that he received two bundles, containing 45 bottles in sealed state and the sample of the seal sent to him tallied with the seals affixed on the bundles. He further deposed that Constable Subedar had brought these bundles for examination on 19.4.80 in connection with Crime No. 261 of 1979 of Police-Station Biswa, Sitapur. This part of his evidence has gone unchallenged in cross-examination. Constable Shiv Baran Lal Pandey, P.W. 3 also deposed that these two bundles which contained the liquor in question were deposited in a sealed state with the sample of the seal at the Police-Station and that they remained intact with seal so long as they were kept at the Police-Station. There is no suggestion on behalf of the defence that the sealed bundles, containing 45 bottles of liquor were tampered with at any point of time. In my view, if this question had been raised in the trial court, the prosecution would have been in a better position to produce more evidence in this behalf. This question cannot be allowed to be raised for the first time in revision. The second question is also answered accordingly.;