1. This revision is for impugning the judgment dated 23.11.2001 passed by the Second Additional Sessiuns Judge. Bhind in Criminal Appeal No. 93/01 affirming the judgment of conviction dated 19th October, 2001 passed by the Chief Judicial Magistrate, Bhind in criminal case No. 815/0 I, whereby the petitioner has been convicted for the offence punishable under section 34 (2) of the Excise Act imposing one year's rigorous imprisonment alongwith fine of Rs. 25,000/-.

2. The facts in brief are that on 13th August, 200 I, 288 quarters of whiskey were recovered from the possession of petitioner. On prosecution, he has been convicted as aforesaid.

3. Shri Mishra, the learned advocate for the petitioner, has assailed the impugned judgment on the ground that both the independent witnesses of the seizure memo have become hostile. On seizure memo (Ex. P-1) crime number appears written as 59/1 4th August, 200 I. Liquor of only 3 quarters has been tested. Seizing officer is the only witness who has stated against the petitioner. In aforementioned facts, he ought not to be believed, as observed by the apex Court in Mukhtiar Ahmed Anshan' v. State (N. C. T of Delhi) [2005 (3) Supreme 370]. It is further submitted by him that all the bulk has not been tested.

4. Shri Irshad for the respondent/State has drawn attention at paragraphs from 9 to 12 of the impugned judgment and has submitted that the observation of the Court below in these paragraphs is justified.

5. It is truly observed by the learned Judge in paragraphs 6 to I I that the sole testimony of the Excise Sub-Inspector San jay Gupta (PW 3), cannot be disbelieved on the ground that the two Panch witnesses of the seizure memo have become hostile in the trial. He has rightly mentioned that despite the fact that these two witnesses are not corroborating the seizure of the alcohol from the possession of the petitioner, yet they are admitting their signatures on the seizure memo. It is not explained by them as to why they put their signatures on the seizure memo, when no such alcohol was seized from the possession of the petitioner. On perusal of the seizure memo. Ex. P-l. which has been proved by the Excise Sub Inspector Sanjay Gupta, it appears that at the time of the incident, the aforementioned liquor was recovered from the possession of the petitioner.

The observation of the learned Judge on this point does not appear erroneous.

6. The appearance of Crime No. (P8 No.) on the seizure memo. this fact has been explained by the Excise Sub Inspector that these numbers were put by him in his office and not at the place of incident where the seizure memo was prepared. He has denied this fact that the seizure memo was also prepared in his office. Considering this statement, the story of the prosecution cannot be disbelieved simply on this ground also. Filing of a complaint by the Excise Sub Inspector after seizure of the alcohol is no where prohibited. He is not such a police officer who has conducted the investigation and filed charge sheet under Chapter XII of CrPC for whom it can be said that if he seized a contraband article, he should not conduct the investigation, as observed by the apex Court in the case of Mukhtiar Ahmed Anshari (supra), as cited on behalf of the petitioner. It was a case based on TADA offences in which and it has been observed that investigation by very same police official who had lodged the complaint, in absence of independent corroboration, no conviction could be recorded. In view of the above the observation in this case cannot fruitfully be utilized in favour of the petitioner on this point.

7. It is stated by Sanjay Gupta (PW 3) in paragraph 2 of his statement that he has conducted physical test of the seized material and found the same as alcohol. The relevant part of his statement goes as under:

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