The sufficiency of evidence, including the requirement for proper chemical analysis and the examination of independent witnesses, is crucial in determining the sustainability of a conviction in the eye of law.

JUDGMENT :

Heard learned counsel for the parties.

2. This revision application is directed against the judgment dated 24.1.2004 passed by learned 12th Additional Sessions Judge, Dhanbad in Criminal Appeal No.127/1999; whereby the judgment of conviction and order of sentence dated 23.08.1999 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in C.E.Case No.294 of 1995; whereby the petitioner was convicted u/s 47(a) of the Excise Act and was sentenced to undergo R.I. for One year and fine amount of Rs.1000; has been partly allowed by reducing the sentence from one year to three months and the fine amount of Rs.1000/- has been reduced to Rs.500/-.

3. The prosecution case in short is that on 6.7.1995, a raid was conducted by the Excise Department on an information in the house of the petitioner and 40 liters of Mahua liquor were recovered from the house of the petitioner and a seizure list was prepared in presence of witnesses and the petitioner was forwarded to jail.

4. Mr. Sahay Gaurav Piyush, learned Amicus appearing on behalf of the petitioner submits that the prosecution has failed to examine the seizure list witness. Further, it has come in the evidence of P.W.1 (Excise Constable) that at the time of raid, 15 to16 persons were present at the place of occurrence; however, none of the said persons have been examined by the prosecutions.

It has also come in the evidence of P.W.1 that at the time of raid, he did not enter the house of the petitioner and only on the directions of P.W.2 (Excise Sub-Inspector) he had signed the seizure list outside the house of the petitioner.

Learned Amicus further submits that material evidence was not produced in the court or proved during the trial. Further, the recovery of “Mahua” has not been supported by any chemical analysis. P.W.-2 has only stated that he smelled and tasted the material and came to a conclusion that the material was Mahua. He has further stated that he had experience in this regard and has received training but nothing has been brought on record to show such expertise and training. Only on the statement of P.W.2, it has been assumed that the seized material is Mahua.

He lastly submits that the statement recorded under Section 313 Cr.P.C. was also not considered. Thus, the judgments passed by the lower courts are harsh, illegal and against the material on record and accordingly fit to be set-aside.

5. Learned APP opposed the prayer of acquittal as there is concurrent findings against the petitioner.

6. Having heard learned counsel for the parties and after going through the judgments and the LCR it appears that the learned Appellate Court though appreciated all the grounds of the petitioner that there was no chemical test but while rebutting those grounds has held as under:-

“In the present case P.W.2 has deposed that he had been given special training in chemical analysis at police training center Hazaribagh. He has also deposed that he had an experience of 24 years……………………...

In these circumstance I find that chemical analysis conducted by P.W.-2 is sufficient compliance for arriving at an objective finding regarding nature of a liquid seized.”

By going through the above paragraph it evidently transpires that the finding given by the appellate court is obstinate. At this stage, it is pertinent to mention here that a person may have experience for a particular thing to any extent, but if the law demands that any particular item is to be sent for chemical examination; the same should be examined by an expert i.e. Chemical Analyst. Mere experience of an officer, who himself has done examination by smell of the seized article will not suffice the requirement of law; as such the conclusion arrived by the learned Appellate Court that the chemical analysis conducted by P.W.2 was sufficient compliance as per law is perverse and not sustainable in the eye of law.

7. Further, the prosecution has failed to examine any independent seizure list witness or for that matter, any independen