JUDGMENT :

Umesh Kumar, J.

This appeal has been preferred against the judgment and order dated 02.09.2019 passed by Additional Sessions Judge, Court No.3, Moradabad in S.T. No. 112 of 2010 (State Vs. Ashok ), by which the appellant has been convicted and sentenced to undergo ten years R.I. under Section 272 IPC with a fine of Rs. 25,000/-and under Sections 60/62 of U.P. Excise Act to undergo two years R.I. with a fine of Rs. 5,000/-with default stipulations.

2. The prosecution case, in brief, is that one Surendra Singh Pachori-S.I. posted at Police Station, Civil Lines, Moradabad during checking, on the information given by police informer, raided the place where on a furnace, one tin and a patili (pot) were seen and there country made liquor ( kacchi ) was being prepared; that two persons using force were arrested; that on interrogation, they disclosed their names as Pawan @ Sonu and Ashok (the appellant before this Court); that a recovery memo(Ex.Ka.1) was prepared in which two plastic jarikain containing 8 litres kacchi liquor, one furnace, one pipa and other apparatus for manufacturing country made liquor (kacchi Sharab) were shown; during investigation, I.O. prepared spot map (Ex.ka2), chick FIR (Ex.Ka.5), G.D. entry (Ex.Ka.6) and send material for test report; that after completing investigation, the I.O. submitted charge sheet (Ex.Ka.4); that charges were framed against the appellants under Sections 272 IPC and 60/62 of Excise Act which was read over to the accused who denied the charges and claimed to be tried. The prosecution examined, S.I. Surendra Pachori as P.W.1, constable Dal Singh as P.W.2 and retired Inspector Veerpal Singh as P.W.3. The appellant-accused in his statement under Sections 313 Cr. P. C. denied the incident and stated about false implication.

3. By the evidences adduced by the prosecution, P.W.1 Surendra Singh Pachori has proved the fact that on 20.2.2010 at 8.45 a.m., he recovered the illicit ‘kacchi sharab’ about 8 litres and appliances, he has proved fard Ex.Ka.1, destroyed the ‘Lahan’ at spot and obtained sample ‘namuna sharab’.

4. P.W.2 Dal Singh has also supported the prosecution version and has proved Jarican Ex..1 and 2, patili Ex.3, container Ex.4, plastic pipe Ex.5, bottle (plastic) Ex.6 and a bag of cement Ex.7. This witness has proved fard Ex.Ka.1.

5. P.W.3 Veerpal Singh is the Investigating Officer of the case. He has proved Ex.Ka.2, map Ex.Ka.3, letter to FSL, Agra and Charge sheet Ex.Ka.4. This witness has also proved the chick FIR Ex.Ka.5, Ex.Ka.6 G.D entry as secondary evidences.

6. Learned Trial Judge after taking into the prosecution witnesses, has convicted and sentenced the appellant as mentioned above. Aggrieved, the instant appeal.

7. I have heard learned Counsel for the appellants, learned A.G.A. and perused the impugned judgment carefully.

8. Submission of learned Counsel for the appellants is that the findings of learned Trial Judge are perverse and against the weight of evidence available on record; that the punishment is too severe; that learned Trial Judge has no appreciated the discrepancies in the statements of witnesses; that there is no independent witnesses except police personnel; that no offence under section 272 IPC at all is made out against the appellants; that the learned Trial Judge has no properly assessed the FSL report which speaks about mixture of 5.4 percent of alcohol; that this report is vague which only speaks of presence of urea, Ammonium chloride (nausadar) and thus, it cannot be said to be report in the eye of law bringing the appellant guilty for offence punishable under Section 272 IPC.

9. Learned Counsel for the appellant further submits that in order to establish that an offence under Section 272 IPC has been committed, the prosecution has to prove that the article involved was food or drink meant to be consumed by live persons, that the accused altered it, that such adulteration rendered it noxious as food or drink and that the accused at the time of s