The burden of proving everything essential lies on the prosecution in a criminal trial, and there is a presumption of innocence in favor of the accused unless the contrary is proved.

JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. The instant application is directed against the judgment dated 30.04.2007, passed by learned Additional Sessions Judge, FTC No. VI, Dhanbad, whereby the Cr. Appeal No. 6 of 2004, preferred by the petitioner has been dismissed with modification and the judgment of conviction and order of sentence dated 17.12.2003 in C.E. Case No. 22 of 2000, passed by the learned Judicial Magistrate 1st Class, Dhanbad, whereby the petitioner was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- under Section 47(a) of the Excise Act, and in default of payment of fine, further directed to undergo imprisonment for one month.

The learned appellate court has reduced the sentence and fine amount from RI for one year to RI for three months and fine amount from Rs.1000/- to Rs.500/- and in default of payment of fine, petitioner will suffer further SI for 15 days.

3. The prosecution case in brief is that a raid was conducted by the Excise Department in the house of the petitioner at village Jambani, P.S. Chirkunda, District-Dhanbad and allegedly 10 liters of Mahua liquor were recovered. Thereafter, cognizance has been taken against the offences; for which the petitioner pleaded not guilty and claimed to be tried. After trial, the petitioner was found guilty for the offences and he was convicted and his appeal was also rejected with modification in sentence by the learned appellate court.

4. Mr. A.K. Das, Advocate, learned counsel for the petitioner submits that the case build by prosecution relies on the testimony of witnesses of Excise Department and no independent witnesses has been examined. The prosecution has failed to examine the independent seizure list witnesses also. No explanation has been given by the prosecution as to why no independent witness has been examined.

He contended that in the present type of cases chemical analysis of the seized liquor is the proper way to determine the nature of a liquid; and in absence of any such report, it cannot be determined that the liquid seized was mahua liquor.

5. Learned counsel for the State supported the judgment and submits that there is no error in the findings given by the Courts below; as such, the conviction cannot be set aside.

6. Having heard learned counsel for the parties and after going through the impugned judgments including the lower court records it appears that the learned appellate court through appreciated all the grounds of the petitioner that there was no chemical test but while rebutting those grounds has held as under:

“From perusal of the materials on record, I find that P.W.1 has clearly stated that he is trained to test the liquor. P.W.2 has also supported the story of recovery of the illicit liquor from the house of appellant. Both the witnesses are public servant and I do not find any reason that they will falsely implicate an innocent person due to grudge or enmity.”

By going through the above paragraph, it manifestly transpires that the finding given by the appellate court is obstinate, inasmuch as, a person may have training for a particular thing to any extent; but if the law necessitates that any particular item is to be sent for chemical examination; the same should be examined by an expert i.e. Chemical Analyst. Mere training 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 is 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 independent witness and both the prosecution witnesses were interested witnesses as they were among the raiding party. It has come in evidence that at the time of raid, two persons namely, Madan Yadav and Anup Pr