TMI Blog2014 (7) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... the said finding, this Court has reached to the conclusion that finding of fact recorded by both the courts below are based on evidence available on record. Once the finding of fact based on evidence available on record, this Court in excise of its revisional jurisdiction would not interfere with the finding of fact so arrived into. - revision petition dismissed - decided against the petitioner. - Criminal Revision No. 624 of 2003 - - - Dated:- 18-6-2014 - Hon ble Shri Justice Sanjay K. Agrawal,JJ. For the Applicant : Shri Awadh Tripathi For the Respondent : Shri Anand Verma ORDER (1) Invoking revisional jurisdiction of this Court under Section 397/401 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C. ), sole accused/applicant- Mahadeo has preferred this revision questioning the legality and propriety of judgment impugned passed by the 1st Additional Sessions Judge, Raigarh in Criminal Appeal No. 147/2003 on 15.12.2003, by which learned Sessions Judge has affirmed the judgment of conviction recorded by Judicial Magistrate First Class, Sarangarh in Criminal Case No.691/2002 and the sentence awarded to him is reduced to simple imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the meaning of Section 2(11-a) of the Act of 1915; and after examination of the witnesses, came to the conclusion that the applicant/accused was found in possession of 30 bulk liters of country made liquor, which is duly supported by Seizure Witnesses namely Hafij Khan (PW-1) Nandram (PW-4); and also came to the conclusion that liquor/intoxicant seized is a country made liquor and rejected the defence of his false implication in the case and convicted the accused/applicant for the offence under Section 34(1) (a) of the Act of 1915 and sentenced to undergo imprisonment for six months, and also imposed fine of ₹ 5,000/-, and in default, he has to further undergo simple imprisonment of three months. (4) On appeal being preferred by the accused/applicant, the 1st Additional Sessions Judge, Raigarh in Criminal Appeal No.147/2003, by its judgment affirmed the findings of the trial Magistrate so far as it relates to judgment of conviction, but interfered with the order of sentence awarded by trial Magistrate; and jail sentence of six months, was reduced to jail sentence of one month while maintaining the fine sentence. (5) Shri Awadh Tripathi, learned counsel appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the report would show that Excise Sub Inspector applied the smell test as well as litmus test and after conclusion of the said tests, seized Article has been reported to be the liquor as an intoxicant within the meaning of Section 2(11-a) of the Act of 1915. (12) Mukesh Agrawal, Excise Sub Inspector has been examined by the prosecution as PW-2. It appears from his evidence that no question was put to him questioning the test made by him in order to identify the liquor as intoxicant. It is not a case of the defence that smell test and the litmus test made was not made or the smell test and litmus test applied by the Excise Sub Inspector was not a correct test to be conducted for identifying the liquor, even before the appellate Court, no such plea appears to have been raised questioning the smell test and litmus test applied for identification of the liquor as bad. Therefore, I do not find any good ground to hold that smell test and litmus test applied for identification of the liquor was not proper to hold that seized country made liquor was not intoxicant within the meaning of Section 2(11-a) of the Act of 1915 and it is held that litmus test and smell test applied by the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition and strength of the liquid under consideration was not questioned at all. We, therefore, think that this particular Excise Inspector could be treated as an expert within the meaning of Section 45 of the Evidence Act. The Excise Inspector 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 would have been in a position to lead more evidence on these questions. We also find that the objects recovered from the possession of the appellant almost proclaim the nature of his activity and of the liquid which could be in his possession. On the facts and circumstances of this case, neither Boosenna s case, (1967) 3 SCR 871 = (AIR 1967 SC 1550 = 1967 Cri.LJ 1398) nor any other case would, we think, help the appellant. Consequently, we discuss this appeal and affirm the conviction and sentence of the appellant. The appellant should surrender to his bail and serve out the sentence. (14) Following the decision of Supreme Court in the aforesaid case, Madhya Pradesh High Court also in case of Kallu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the contention made by applicant s counsel, alleging contravention of Section 57 of the Act of 1915 has no force and hereby rejected. (18) Turning back to the applicability of Section 57-A of the Act, 1915, it would appear that in the instant case Station House Officer upon seizure of the country made liquor on 6.7.2002 vide Ex.P-1, and, thereafter sent it to the Excise Sub Inspector vide Ex.P-5 for examination, which reported vide Ex.P-2 on 13.07.2002, which was duly sealed and sent to the Excise Sub Inspector for analysis and reporting back after examination. (19) Coming back to the testimony of C.S. Netam (PW-3), no question was put to the said witness that it was not duly sealed and it has not been allowed to Excise Sub Inspector to take sample etc. During the course of hearing before both the courts below, no question have been raised in this regard and for the first time, this defence has been projected placing reliance under Section 57-A of the Act and, therefore, the said submission has no legs to stand, it is accordingly rejected. (20) It is well settled that scope of revision under Sections 397/401 of the Cr.P.C. is very limited. The trial Court as well as appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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