Ranawat - (1.) THESE are two revision petitions No. 92/58 and93/58 by Ramchandra and Nanda respectively from the judgment of the Sessions Judge of Jaipur City, dated the 25th of April 1958, confirming on appeal the judgment of the Excise Magistrate, Jaipur, by which both the petitioners Ramchandra and Nanda were convicted under sec. 57 of the Rajasthan Excise Act, 1950 (Act No. II of 1950 hereinafter called the Act) and sentenced to two months' rigorous imprisonment each.
(2.) THE prosecution case was that both Ramchandra and Nanda were carrying two plastic bottles of ethyl alcohol containing 20 bottles each and were going from Jaipur to some place outside it at about 9 p. m. on the 10th of September, 1956, when they were suspected by Tolaram and Vijailal and they, therefore, took them from outside Char Darwaza to the Police Station Ramganj, where a search was taken of the persons of both the accused, Ramchandra and Nanda, and two bottles as mentioned above were recovered one from the possession of each. Samples of the contents of both the bottles were taken by the Station House Officer and they were duly sealed and sent to the Chemical Examiner for examination. THE report of the Chemical Examiner was that both the samples contained 50% ethyl alcohol. THE case of the accused was that nothing was recovered from their possession and that Kanhayalal and Tolaram, the prosecution witnesses, put bottles on their heads and caught them in order to implicate them. The learned Magistrate, after holding a trial, found that the prosecution case was made out against both the accused persons and that two plastic bottles full of ethyl alcohol were recovered from their individual possession, when the search was taken by the police at the police Station Ramganj. On appeal, the learned Sessions Judge agreed with the findings of the trial Magistrate. In both the revision petitions it was contended that the certificate of the Public Analyst was not admissible in evidence under sec. 510 of the Criminal Procedure Code and that the court below was in error in admitting the said certificates into evidence without examining the Public Analyst as a prosecution witness. The learned Assistant Government Advocate conceded that the certificate of the Public Analyst was not admissible into evidence without proof and prayed that an opportunity be allowed for production of the Public Analyst. His request was allowed and Mr. P.N. Bhargava was summoned as a witness before this Court. His evidence was recorded in both the cases. He stated that he received two samples which were duly sealed and after examining the samples, he came to the conclusion that they contained ethyl alcohol 50.7% proof spirit and 26. 85% volume by volume of ethyl alcohol. The learned counsel of the petitioners contended that no case under sec. 57 of the Act was made out against the petitioners for the reason that the prosecution failed to place on record evidence to show that the stuff recovered from the possession of the petitioners was fit for human consumption and was therefore excisable article, as defined in sec. 3(4) of the Act. It was next argued that the prosecution also failed to prove that the samples which were received in the office of the Public Analyst were the same that were taken by the Station House Officer of Police Station Ramganj from the bottles reco-vered from the possession of both the accused persons. Mr. Rajnarain for the State replied that a case under sec. 57 of the Act could be made out against both the accused persons, even if no evidence was there on the record to show that the stuff recovered from their possession was fit for human consumption, for the reason that the words "for human consumption" appearing in sec. 3(4)(i) qualify the words "any alcoholic liquor" and do not qualify the preceding words ''spirit, fermented liquor. As regards the identity of the samples, he urged that Mr. P. N. Bhargava spedfically stated that the seals on the samples were intact and that they were compared by the sample of the seal received with the forwarding letter, and that Mr, Jodharam stated that he affixed seals on the samples when they were taken from the bottles that were recovered from the possession of the accused persons and that this evidence was sufficient to prove the identity of the samples, even though there was little evidence of the description of the seals put by the Station House Officer and of the seals that were found in tact by the Public Analyst. The relevant portion of sec. 3(4)(i) is as follows: - "Excisable Article" means and incudes - (i) Spirit, fermented liquor and any alcoholic liquor for human consumption, or ..................... The contention of the learned counsel for the petitioners is that the words "for human consumption" in sec.3(4)(i) of the Act qualify the words "spirit and fermented liquor" also. If the contention of the learned counsel is accepted, the use of the word "spirit" is rendered redundant, for, in that circumstance, there would be no difference between "spirit for human consumption" and "alcoholic liquor for human consumption". The legislature must have intended to use the three words "spirit, fermented liquor and alcoholic liquor" so as to give to each separate meaning and not in order to denote the same substance. "Spirit" has been defined by sec. 3(21) as meaning "any liquor containing alcohol obtained by distillation, whether it is denatured or not". "Fermented liquor" has been defined as meaning "wine, Pachari (Pachawai) and fermented Tari, and any other liquor that may from time to time be declared by the Government to be fermented liquor"; and "liquor" has been defined by sec. 3(15) as meaning "intoxicating liquor and includes spirits of vine, spirit, wine, Tari, Pachawar, beer and all liquid consisting of or containing alcohol, as also any substance which the Government may from time to time, by notification in the Rajasthan Gazette, declare to be liquor for the purposes of the Act" It would thus be noticed that the three terms used in sec. 3(4)(1) have been separately defined by the Act, as mentioned above and the intention of the legislature must have been to include all the three particular types of articles when they were so mentioned in sec. 3(4)(i). The contention of the learned counsel for the petitioners, therefore, cannot prevail that the words "for human consumption" qualify "spirit" as used in sec. 3(4)(i). There is an excise duty of 2 annas per gallon on denatured spirit and if the contention of the learned counsel prevails, the duty on spirit would become illegal. Whether spirit is for human consumption or otherwise is included in sec. 3(4)(i) and even if there be no evidence particularly to prove that the stuff was fit for human consumption, the offence under sec. 57 of the Act can be held proved under the circumstances of the case. The statement of Mr. P. M. Bhargave shows that the samples that were examined by him in both the cases showed that they contained 50.7% ethyl alcohol. It was argued by the learned counsel for the petitioners that the tests used by the Public Analyst were such as would have yielded the same results, even if the stuff had been denatured spirit which is unfit for human consumption. The contention cannot prevail, for the reason already discussed above. Even if the stuff is "spirit" unfit for human consumption, a case under sec. 57 would be made out against the accused persons. The next point regarding identity of the samples is also not of much help to the petitioners. Under the circumstances of the case, the evidence of the Station House Officer, who sent the samples and that of the Public Analyst, who received the samples duly sealed, is enough to prove that the samples that were received in the office of the Public Analyst were the very same that were taken and sealed by the Station House Officer. Both the revision petitions fail and are dismissed. The accused are on bail and they will surrender to their bail bonds and be sent to Jail to undergo the remaining terms of their sentences. Inform the District Magistrate, Jaipur. ;