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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
PANKAJ BHATIA, J.
Ram Shankar – Appellant
Versus
State Of U.P. – Respondents
Criminal Appeal No.1822 of 2016
Decided on : 26-10-2021
Excise Act - Section 3(9) and 60(2) - Indian Penal Code, 1860 - Section 272 - Adulteration of food or drink intended for sale - Manufacturing illegal country liquor - Appeal against Conviction - Information was received by S.I. to effect that one Rama Shanker was manufacturing illegal country liquor at his house. Based upon the said information, the said two persons left towards house of Rama Shanker, on the way they convinced strangers to become panch, which was refused by them. However, said two persons went to house of Rama Shanker wherein they saw that from house smoke was coming out. On going into the house, they saw that one person sitting besides the stove (Chullha) which was on fire. On the said stove, two utensils made of mud were kept. On questioning, the said person disclosed his name as Rama Shanker aged about 45 years and from the spot 500 gms of Urea was recovered as well as country liquor which was being prepared was also recovered. It was recorded that in statement given by Rama Shanker, he admitted that he used Urea for manufacture of the country liquor.
Finding of the Court :
The definition of section 3(9) of the U.P. Excise Act, it had to be alleged and established that adding of Urea was contrary to the notification or that the said Urea was in excess of what was prescribed by any notification so as to render the country liquor as 'denatured'. There is no such material on record either before this Court or before the Trial Court to come to a conclusion that the liquor recovered was 'denatured' - Absence of any material to demonstrate that the country liquor so recovered was rendered 'noxious'/'denatured' and was intended for sale, the conviction of the appellant under section 272 I.P.C. cannot be justified. However, the conviction of the appellant under section 60(2) of the U.P. Excise Act cannot be faulted with.
Result: Appeal disposed off
JUDGMENT :
1. Heard Ms. Soniya Mishra learned counsel for the appellant and Sri Vivek Gupta, learned AGA for the State.
2. The present criminal appeal has been filed against the judgment and order dated 16.11.2016 passed by the learned Additional Sessions Judge, Court no.6 SC/ST Act, Lakhimpur Kheri in Sessions Trial No.527 of 2013 whereby the appellant has been convicted under section 60(2) of the Excise Act and sentenced for a period of one year along with fine of Rs.1000/-and further the appellant has been convicted under section 272 I.P.C. with sentence of ten years and a fine of Rs.10,000/-.
3. The facts, in brief, leading to the passing of the impugned judgment is that on 26.09.2010, an information was received by the S.I. Uttam Singh Rathaur and Vinod Kumar to the effect that one Rama Shanker was manufacturing illegal country liquor at his house. Based upon the said information, the said two persons left towards the house of Rama Shanker, on the way they convinced the strangers to become panch, which was refused by them. However, the said two persons went to the house of Rama Shanker wherein they saw that from the house smoke was coming out. On going into the house, they saw that one person sitting besides the stove (Chullha) which was on fire. On the said stove, two utensils made of mud were kept. On questioning, the said person disclosed his name as Rama Shanker aged about 45 years and from the spot 500 gms of Urea was recovered as well as country liquor which was being prepared was also recovered. It was recorded that in the statement given by Rama Shanker, he admitted that he used Urea for manufacture of the country liquor. A sample of the said liquor was drawn and was sent for forensic examination and the case was registered against the appellant.
4. During the trial, four witnesses were produced by the prosecution, two of whom were the part of the raiding party. In defense the appellant also produced two witnesses. PW-1 in his statement reiterated the version to the effect that on raiding the house of Rama Shanker, country liquor was recovered and he had admitted to adding Urea to the said country liquor. PW-2 also supported the raid. The report of the Forensic Science Laboratory was also cited before the trial court, which was to the effect that from the sample sent and analyzed 3.4% alcohol was found and urea was also present in the said sample. Based upon the said evidence, the impugned judgment was passed holding the appellant guilty under section 272 I.P.C. as well as under section 60(2) of the Excise Act.
5. The counsel for the appellant argues that the judgment in question is bad in law for more than one reason. He argues from the entire evidence on record, even if admitted to be true, there was no averment or evidence to the effect that the manufactured liquor was intended for sale. He further argues that there is no material on record to suggest that adding of Urea makes the drink (in the present case country liquor) 'noxious'. He has placed the reliance of the provisions of section 272 I.P.C., which is as under:
The U.P. amendment to the said section is also as under :
Uttar Pradesh -In section 272 for the words 'shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both" the following shall be substituted, namely:-
"shall be punished with imprisonment for life and shall also be liable to fine:
Provided that the court may, for adequate reason to be mentioned in the ju
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