- (1.) S. K. Agarwal, J. Heard learned Counsel for the applicant and perused the judgments. This revision arise out of an order directing the denatured sprit in question to be destroyed by the lower Appellant Court. The lower Appellate Court has directed the learned CJM Mirzapur, to pass an order of destruction of the dena tured spirit seized from the possession of the applicant by the Excise Inspector. The applicent was challaned by the Excise In spector, Robertsganj, for committing an offence punishable under Section 60 of Excise Act. The challan was submitted in Court on 25-1-1980. The case initially proceeded before the Judicial Magistrate, Robertsganj, but subsequently it was transferred to the Court of CJM, Mir zapur. The prosecution failed to adduce any evidence in the case on 23-12-1981. The Excise Inspector, who was the com plainant in the case, absented himself from the Court. No witness also appeared on final date. As a result, the learned CJM dismissed the complaint and acquitted the applicant of the charges levelled against him. He further directed that the dena tured spirit will be released in favour of the applicant. This spirit was not released. The applicant made an application on 29-4-1982 before the CJM Mirzapur, with the allegations that the denatured spirit was not found in Malkhana and the Court may direct for production of the same in Court This application remained pending. Meanwhile, on 15-6-1983 the Excise In spector moved an application before CJM, Mirzapur, for examination of the dena tured spirit by Chemical Examiner, Agra. The Excise Inspector alleged in this ap plication that while the applicant was denaturing the spirit he was arrested. Den ture can be lawful by a licence holder only. Denatured spirit is required under the rules to be of the strength of 95% v/v and it cannot be sold to any person either a retailer or a whole-seller, unless its purity is proved. It was further stressed in the application that if it is not upto the prescribed standard, its possession is not lawful. On 5-4-1982 and on 9-5-1982 the applicant moved other applications for release of the denatured sprit to him. He again moved an application on 3-6-1982 for the same purpose before the CJM, Mirzapur, with the allegations that he had moved an application for renewal of his licence and the shop is still running. The licence will be issued in due course of time. In case if the denatured spirit is not delivered to him, the Excise Inspector may be directed to pay the value of the dena tured spirit. The Excise Inspector filed his objection against this application and challenged that the price cannot be given to the applicant because he is not authorised to take back the denatured spirit as he has no valid licence in respect of the denatured spirit. The Excise Inspector moved a fresh application on 22-5-1984 for destruction of the denatured spirit.
(2.) THE learned Magistrate was of the opinion, after hearing the parties, that when the denatured spirit was seized from the possession of the applicant, the al coholic substance was 93. 5% and as the denatured spirit is in possession of the Excise Inspector, Robertsganj, since 22-12-1981 the strength was reduced. Thus, the CJM, Mirzapur, directed again that the denatured spirit be handed over to the applicant immediately. Against this order the present revision has been preferred. The learned Vth Additional Ses sions Judge, Mirzapur was wrong in hold ing in my opinion, after a lapse of several years from the date of recovery that the applicant has not alleged in his application that the alcoholic strength of the dena tured spirit seized from his possession, is reduced in strength because of long lapse to time. Such an allegation is not required to be made. In my opinion, this is a fact, which can be inferred easily from the cir cumstances. What is to be considered is that when the denatured spirit was seized from the possession of the applicant its strength was 93. 5% v/v. Subsequent loss in strength is of no consequence, so far as delivery of the possession is concerned, of the article so seized to the applicant. Moreover, if the acquittal has not been challenged, how can the prosecution challenge the release of the commodity, i. e. denatured spirit. This has not been given consideration by the learned Addl. Ses sions Judge while deciding the appeal. He has gone astray while holding that the denatured spirit was of low strength and was not conforming o the prescribed strength and, therefore, it cannot be given to the applicant. Since there was no dis pute with regard to the possession of the applicant and once he has been acquitted, there is no option but to release that article in favour of the accused especially when no such prayer was made by Excise Depart ment at the very outset. There is another anomaly in this case. Once an order has been passed for release, in favour of the applicant by the CJM as far back as on 23-12-1981, the application moved by the Excise Inspector on 15- 6-83 was not maintainable. None of the two judgments given an indication that the Excise Department has challenged the acquittal order and the release order. Then it does not stand to reason as to how and why the application dated 15-6-1983 was entertained by the Courts concerned and the denatured spirit recovered from the applicant was allowed to rot. The inten tion of the Excise Inspector appears to rob the applicant of his property. He was a licensee and the record shows that he has applied for the renewal of his licence in due course of the business. It is common knowledge that the licences are renewed in due course by the Departments, but the business used to continue in expectation of the renewal provided it is applied before its expiry. The subsequent application moved by the Excise Inspector for the. destruction of the denatured spirit recovered from the applicant on 22-5-1981 was a misconceived application. It was moved to cover up its loss from the malkhana. It should not have been enter tained and the learned Addl. Sessions Judge appeared to be completely oblivious of the facts and circumstances in directing the Magistrate to pass an order of destruc tion of this denatured spirit.
(3.) IN view of the above discussions, this revision succeeds and is allowed. The CJM Mirzapur, is directed to ask for the production of the denatured spirit from the Excise INspector in his Court and release the same in favour of the applicant, as directed by him earlier. IN case if the Excise Department fails to produce the denatured spirit, seized from the applicant the learned Magistrate will ensure the pay ment of its price to the applicant from the Excise INspector concerned. Revision allowed. .;