Sukhlal Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
- - revision petitioner has totally failed to show that the irregularity has caused any prejudice to him.orderu.l. bhat, c.j.1. revision petitioner has been concurrently found guilty of the offence punishable under section 34(f) of the m.p. excise act and sentenced to undergo rigorous imprisonment for one month and to pay fine of rs. 200/- with default sentence.2. on 13-10-1988, p.w. 3 excise sub-inspector received information that revision petitioner was manufacturing illicit liquor in his house. p.w. 3 proceeded with his staff and two witnesses p.ws. 1 and 2 to the house of the revision petitioner and found 30 liters of mowha liquor and 54 kgs. of mowha in his possession. his son was also found to be in possession of some quantity of liquor and mowha. he was separately prosecuted and convicted. the articles found in the possession of revision petitioner were seized under ex.p/1 seizure list. p.w. 3 took samples of the liquor in three bottles and destroyed the remaining part of the liquor. in due course, he filed charge-sheet before the court concerned & produced the documents and the samples. revision petitioner denied that he was found in possession of any liquor and stated that the seized articles belonged to his son. he also examined three witnesses to show that nothing was seized from him. the' two courts below on proper appreciation of evidence and circumstances, held that the guilt of the revision petitioner for the offence alleged has been proved beyond reasonable doubt.3. learned counsel for the revision petitioner has raised only two contentions before me. the first contention is that the alleged liquor was not sent for chemical examination and the two courts below relied on the evidence of p.w. 3 to the effect that the article seized was liquor. chemical examination could produce fool-proof or cast-iron evidence as to whether the liquid analysed is liquor or not. but that is not the only manner in which the identity of the liquid can be proved. it can be proved by persons having expertise in the field. it is not desirable to lay down an inflexible rule in regard to proof of questions of fact. the court of fact can in appropriate cases rely on the evidence of an expert who identifies articles by applying smell test or litmus test. the decision to that effect in sri chand batra v. state of u.p. air 1974 sc 639:1974 cri lj 590, has been followed by this court in kallukhan v. state of m.p. 1980 jlj 509. the court noticed that in that case the courts below on a consideration of totality of the facts found that the article seized was liquor and the revision petitioner in that case had not seriously disputed that question. in the present case, p.w. 3 who has been dealing with the liquor over the years applied the smell test and the litmus test to identify the article. the evidence was accepted by the two courts below. i find nothing illegal or improper in this finding.4. the second contention is that p.w. 3 should not have destroyed the liquor seized after taking samples. it is true that the act does not empower the seizing officer to destroy any part of the illicit liquor seized and, on the other hand, it requires him. to produce the seized articles before the court. but, his action in destroying the remaining part of the liquor after taking samples is only an irregularity which does not vitiate either the seizure or the prosecution or the trial. revision petitioner can take advantage of this irregularity only if he satisfies the court that such irregularity has prejudiced his defence. no attempt was made before the trial court or the appellate court to show that the irregularity has caused any prejudice. the three samples taken by p.w. 3 were before the trial court. revision petitioner had no case that the samples produced before the court were not samples of liquor seized in this case. he did not make any attempt to have the samples sent for chemical analysis. p.w. 3 was not cross-examined to bring out that there is anything wrong with the sample. revision petitioner has totally failed to show that the irregularity has caused any prejudice to him. the trial and conviction are not in any way vitiated. the revision is accordingly dismissed.

Judgment:
ORDER

U.L. Bhat, C.J.

1. Revision petitioner has been Concurrently found guilty of the offence punishable under Section 34(f) of the M.P. Excise Act and sentenced to undergo rigorous imprisonment for one month and to pay fine of Rs. 200/- with default sentence.

2. On 13-10-1988, P.W. 3 Excise Sub-Inspector received information that revision petitioner was manufacturing illicit liquor in his house. P.W. 3 proceeded with his staff and two witnesses P.Ws. 1 and 2 to the house of the revision petitioner and found 30 liters of Mowha liquor and 54 Kgs. of Mowha in his possession. His son was also found to be in possession of some quantity of liquor and Mowha. He was separately prosecuted and convicted. The articles found in the possession of revision petitioner were seized under Ex.P/1 seizure list. P.W. 3 took samples of the liquor in three bottles and destroyed the remaining part of the liquor. In due course, he filed charge-sheet before the Court concerned & produced the documents and the samples. Revision petitioner denied that he was found in possession of any liquor and stated that the seized articles belonged to his son. He also examined three witnesses to show that nothing was seized from him. The' two Courts below on proper appreciation of evidence and circumstances, held that the guilt of the revision petitioner for the offence alleged has been proved beyond reasonable doubt.

3. Learned Counsel for the revision petitioner has raised only two contentions before me. The first contention is that the alleged liquor was not sent for chemical examination and the two Courts below relied on the evidence of P.W. 3 to the effect that the article seized was liquor. Chemical examination could produce fool-proof or cast-iron evidence as to whether the liquid analysed is liquor or not. But that is not the only manner in which the identity of the liquid can be proved. It can be proved by persons having expertise in the field. It is not desirable to lay down an inflexible rule in regard to proof of questions of fact. The Court of fact can in appropriate cases rely on the evidence of an expert who identifies articles by applying smell test or litmus test. The decision to that effect in Sri Chand Batra v. State of U.P. AIR 1974 SC 639:1974 Cri LJ 590, has been followed by this Court in Kallukhan v. State of M.P. 1980 JLJ 509. The Court noticed that in that case the Courts below on a consideration of totality of the facts found that the article seized was liquor and the revision petitioner in that case had not seriously disputed that question. In the present case, P.W. 3 who has been dealing with the liquor over the years applied the smell test and the litmus test to identify the article. The evidence was accepted by the two Courts below. I find nothing illegal or improper in this finding.

4. The second contention is that P.W. 3 should not have destroyed the liquor seized after taking samples. It is true that the Act does not empower the seizing officer to destroy any part of the illicit liquor seized and, on the other hand, it requires him. to produce the seized articles before the Court. But, his action in destroying the remaining part of the liquor after taking samples is only an irregularity which does not vitiate either the seizure or the prosecution or the trial. Revision petitioner can take advantage of this irregularity only if he satisfies the Court that such irregularity has prejudiced his defence. No attempt was made before the trial Court or the appellate Court to show that the irregularity has caused any prejudice. The three samples taken by P.W. 3 were before the trial Court. Revision petitioner had no case that the samples produced before the Court were not samples of liquor seized in this case. He did not make any attempt to have the samples sent for chemical analysis. P.W. 3 was not cross-examined to bring out that there is anything wrong with the sample. Revision petitioner has totally failed to show that the irregularity has caused any prejudice to him. The trial and conviction are not in any way vitiated. The revision is accordingly dismissed.