- (1.) THIS is an appeal, by leave, by the State of Rajasthan against acquittal of Ladu, respondent, by the Addl. Judicial Magistrate, Beawar by his judgment dated January 13, 1982 for offence under sec. 14 read with Sec. 54 of the Rajasthan Excise Act, 1950.
(2.) FACTS of the case are that Shanti G. Timerwawas Excise Inspector, Beawar and, on July 11, 1972, he along with Excise Preventive Force raided the house of the respondent situated in village Lasadiya. He found certain excisable articles like a 'chari' used as receiver plastic 'nal', a pitcher and a bottle containing illicit liquor. He took sample of the liquid contents from the bottle and other articles and sealed them. The specimem of the seal was affixed on the seizure memo Ex. p/1. The sample was sent to the Chief Public Analyst, Rajasthan, Jaipur by the Excise Inspector through Moti J. Hingorani (PW/3), who was an LDC in the Excise Department, Beawar on August 10, 1978. The Cheif Public Analyst gave his report on January 25, 1979 and opined that the sample contained liquor and wash. Liquor content was 56. 89% and wash was 86. 82%. Thereafter the present complaint was filed by the Excise Inspector against the respondent. The respondent was charged for the offence under Sec. 16 read with sec. 54 of the Rajasthan Excise Act and after trial, the Addl. Munsiff-cum-Judicial Magistrate, Beawar acquitted the respondent solely on the ground that the Excise Inspector in his statement has not deposed that the sample which was sealed remained in whose possession and he also did not depose that when he handed over the sample to Moti J. Hingorani, the seal which had been affixed by him was intact. It was held that it was not established that the sample vial which was sealed remained in an intact condition till they were sent to the Central Public Health Laboratory, Rajasthan, Jaipur. The Judicial Magistrate relied upon the decisions in State of Rajasthan Vs. Daulat Ram (l) and that of the Rajasthan High Court in Babu lal Vs. State of Rajasthan (2 ). It would appear from seizure memo Ex. p/1 that it was mentioned in it by the Excise Inspector that one vial containing the sample was taken and it was sealed, and then seized. The specimem seal was also affixed on the seizure memo Ex. P/1. In his statement before the trial Court, Shanti J. Timerwa, Excise Inspector, as PW/4, gave the statement that the contents seized by him were sealed and taken into custody. He also stated that Ex. P/1 contained the specimen of the seal. The sample was sent to the Central Public Health Laboratory, Rajasthan, Jaipur through Moti J. Hingorani who was LDC, along with letter Ex. P/4. This letter also contained the specimen of the seal on the back side of Ex. P/4. Besides that, there is an endorsement from the office of the Chief Public Analyst that the samples were received sealed through Moti J. Hingorani on August 10, 1978. It is very pertinent to note that not a single question was put to the witness even remotely suggesting the tampering of the seal. Several questions were put in cross examination, but they were on different points and nothing regarding the intactness of the seal or its tampering with. Moti J. Higorani LDC was also examined as PW/3 and he clearly stated that sealed vials were handed over to him along with a tehrir and he delivered the same in the office of the Chief Public Analyst in the same sealed condition in which it was handed over to him by the Excise Inspector. A receipt had also been taken from the office of the Chief Public Analyst same sealed condition in which it was handed over to him by the Excise Inspector. A receipt had also been taken from the office of the Cheif Public Analyst (Ex. P/4 ). To this witness also not a single question was put on behalf of the respondent suggesting anywhere that there was likelihood of the same being tampered with. The report of the Chief Public Analyst, Ex. P/8, also mentions that the sample was received in a sealed condition, intact and unbroken and further that the seal on the container was similar to the seal impression as given on the covering letter. There is, however, material on record that no cross examination from the side of the respondent shows that the contents were sealed and when the same were sent to the office of the Chief Public Analyst, it contained the same seal of which specimen was given in Ex. P1 as well as on Ex. P/4. It was received in the office of the Cheif Public Analyst with the same impression and the intacting of the seal. I may refer to the decision of their Lordships of the Supreme Court in Ukha Kolhe Vs. State of Maharastra (3 ). That case was under the Bombay Prohibition Act. There was some accident and, on examination, the appellant was found smelling of alcohol. He was attended to by Dr. Kulkarni when he was taken to the hospital. Dr. Kulkarni directed one Dr. Rote to collect a specimen of blood from the body of the appellant. Accordingly, some venus blood was collected in a phial. The phial was closed in the presence of Dr. Rote and sealed. This was done on April 3, 1961. The blood specimen remained in the hospital. A specimen of the appellant's blood was again collected at about 11 a. m. on April 12, 1961, the Sub-Inspector, Incharge of the investigation, came to learn that a specimen of blood of the appellant had been taken by the hospital authorities early in the morning of April 3, 1961. On demand by the police officer, the Medical Officer delivered the phial containing the blood specimen together with a certificated from Dr. Rote that a blood specimen of the appellant was collected by him at 6 a. m. affixed an additional seal on the on April 3, 1961. The investigating officer affixed an additional seal on the package and forwarded the same with a special messenger to the chemical Examiner on April 18, 1961. On examination of the contents of the phial it was found that there was concentration of alcohol to the extent of 0. 069 percent W/v ethyl alcohol. This concentration was in excess of the concentration mentioned in S. 66 (2) of the Bombay Prohibition Act. It was observed that the prosecution has established that the specimen examined by the chemical Examiner by the specimen blood of the appellant and that the specimen disclosed concentration of alcohol in excess of the permissible limit. The only important piece of evidence on which the prosecution case against the appellant rested was contained in the report of the Chemical Examiner. Dr. Kulkarni had deposed that he had asked Dr. Rote to collect a specimen of blood and blood specimen was accordingly taken and the phial was sealed in his present by a laboratory servant. Dr. Rote also said that the sample was sealed. But there was no evidence on the record about the person in whose custody the phial remained from April 3, 1961 to April 13, 1961, when it was demanded by the Sub- Inspector Police. There was also no evidence about the precaution taken to ensure against tampering with the contents of the phial. Even the special messenger with whom the phial was sent to the Chemical Examiner, was not examined, and Ex. P/4 which was signed by some person belonging to the establishment of the Chemical Examiner did not bear the official designation of that person. The report of the Chemical Examiner mentioned that a sealed phial was received with Police, Officer, but there was no evidence that the seal was the one which was affixed by Dr. Rote on the phial. The Sessions Judge had pointed out these formalities. It was observed by Hon'ble Shah J. , speaking for the Supreme Court that the observations made by the Sessions Judge suggested that he was of the view that additional evidence was necessary. The examination of both Dr. Rote and Dr. Kulkarni was perfunctory. What steps were taken by Dr. Rote after he collected the blood specimen and sealed the phial, to whom he entrusted the phial, where it was stored and what steps were taken for preventing interference, deterioration or tampering with the same, are matters which were never investigated. Neither the prosecutor nor counsel for the defence asked any question in that behalf, and even the trial Magistrate did not take any steps to obtain information in this behalf. The method of storage of the phial when it was in the custody of the police officers and its dealings therewith when it was in the custody of, the special messenger have been left in obscurity. But the evidence does disclose that the phial was sealed in the presence of Dr. Rote and the report of the Chemical Examiner also disclosed that he had opened a phial which was sealed and the the seal was intact, with the device "medico-Legal Bombay". In the back-ground of these facts, their Lordships observed : "evidence regarding the dealing with the phial since it was sealed and it was submitted for examination for the Chemical Examiner may appear to be formal; but it has still to be led in a criminal case to discharge the burden which lay upon the prosecution. Such evidence would appeal to be 'necessary' within the meaning of S. 428 (1) of the Code of Criminal Procedure, a. 05. having regard to the circumstances, be permitted to be led in appeal. " "the Court would normally require some evidence that the concentration of alcohol is not due to deterioration or delay in the examination of the contents of the phial of to exposure to whether conditions. " The next decision on the point is in the case of State of Rajasthan Vs. Daulat Ram (Supra ). In this case, three tins alleged to contain illicit opium were seized. Several samples were taken and sealed and given to Jawan Singh of the Excise Head quarters on 24. 01. 1968. On 27. 01. 1968, the sample of marked 'a' was taken from the Excise Headquarters and was handed over to the S. I. Aidanram of Udai Mandir Police Station. On 29. 02. 1968, Nathu Singh took samples marked, A, given to him by PW/11 Harak Chand to the office of the Superintendent of Police, Jodhpur for onward transmission to the Public Analyst, but the samples were not accepted by the office of the Superintendent of Police as the lables were not in order. It was an admitted case of the prosecution that the samples changed several hands before reaching the public analyst. The samples remained in the custody of S. I. Aidanram, P. S. Udai Mandir, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during this period a fact which had to be proved affirmatively by the prosecution. The High Court, on account of this lacuna, held that the prosecution had not proved beyond reasonable doubt that the opium seized was the opium which was sent to the Public Analyst. In fact, the prosecution realised its mistake and at the fag and of the trial an application was made under Sec. 540 of the Criminal Procedure Code to examine Nathu Singh, Gajraj Singh and Jawan Singh. The application was rejected. The Supreme Court did not find any error in the judgment of the High Court. In Daulat Ram's case (supra), the prosecution had not examined any of the witnesses to prove that while in custody, the seals were not tampered with. The decision of their Lordships of the Supreme Court in Ukha Kolhe v. State of Maharashtra (supra) was relied upon by a Division Bench of this Court in Ratan Lal Vs. The State (4 ). In that case, from the bedding belonging to the accused opium was recovered. It was sealed by the Station House Officer, Begun and sent the same to the Public Analyst through the Superintendent of Police, Chittorgarh, for chemical examination. The Public Analyst received the same from the office of the Superintendent of Police with seals intact, but it was not mentioned in the report that the seals found on the sample were that of the Station House Officer, Begun or the Superintendent of Police. It was alleged on behalf of the appellant that the sample might have been changed at the office of the Superintendent of Police, Chittorgarh by mistake or otherwise. A different sample could have been sent under his seal. This Court relying upon the previous decisions in The State Vs. Motia (5); Mst. Javitri Devi alias Shanti v. State (6) and The State V. Banwari (7) and also the Supreme Court decision in Ukha Kolhe v. The State of Maharashtra (Supra) held that no doubt, the evidence that the sample of the incriminating article reached the hands of the Chemical Examiner in the same condition in which it was taken by the police officer is formal, yet it cannot be dispensed with and in the absence of such evidence, it is open to the accused to take a plea that the chemical examination report of the Public Analyst cannot be read against him to fasten the guilt on him. As the report of the Public Analyst could not be read in evidence against the accused on account of the above defect it was held that the prosecution has failed to prove that the article recovered from the possession of the petitioner was opium. This decision in Ratan Lal's case (Supra) was followed by a learned Single Judge of this Court in Babu Lal vs. State of Rajasthan (Supra ). This was a case where on February 23, 1969, 189 bottles of green liquor, and some other bottles of other types of liquor were recovered from the house of the petitioner. The Station House Officer sealed the bottles properly and out of these bottles, certain bottles were sent to the Chemical Examiner. From the Statement of PW/4 Punjraj Singh, it was evident that these bottles remained in the Malkhana of the police station, but the Incharge Malkhana was not examined at the trial. The prosecution also did not care to examine the person who took away these bottles to the S. P. Office, Sirohi. None was produced from the office of the Superintendent of Police to show the custody of these bottles there. However, Babu Lal (PW/1, was examined to prove that he carried these bottles to the office of the Chemical Examiner, Jaipur. The evidence of Babulal suffered from an infirmity that in his deposition he stated that he took these bottles from the office of the Superintendent of Police on February 23, 1969, though from the report of the chemical Examiner, it appeared that these bottles were taken away by the Office of the S. P. on March 13, 1969. It was stated that even if this infirmity was ignored, there were other wide gaps in the prosecution story which raised a doubt whether the incriminating articles reached the office of the Chemical Examiner in the same condition in which it was recovered and sealed.
(3.) A review of the above decisions would go to show that in this case every thing is proved except that the sample of liquor which was seized and sealed remained with seal intact during the period from July 11, 1978 to August 10, 1978 when Moti J. Hingorani took the same to the Central Public Laboratory to deliver it to the Chief Public Analyst. May be that the respondents did not make cross-examination on the point and howsoever formal this proof was required, it was for the prosecution to fill up this gap in its evidence. The burden to fill up this gap lay on the prosecution and it failed to fill it up. In these circumstances, the respondent was rightly acquitted. This appeal has not merit in it and it is hereby dismissed. .;