A criminal appeal was filed against the judgment and order dated 16.11.2016 passed by the learned Additional Sessions Judge, whereby the appellant was 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 was convicted under section 272 I.P.C. with sentence of ten years and a fine of Rs.10,000/-.

On 26.09.2010, an information was received by the S.I. Uttam Singh Rathaur and Vinod Kumar that one Rama Shanker was manufacturing illegal country liquor at his house. The said two persons went to the house of Rama Shanker. On questioning, the said person disclosed his name as Rama Shanker and from the spot 500 gms of Urea as well as country liquor which was being prepared was 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. The report of the Forensic Science Laboratory was 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.

The counsel for the appellant argued that the judgment in question was bad in law for more than one reason. He argued 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 was no material on record to suggest that adding of Urea makes the drink ‘noxious’. He placed the reliance of the provisions of section 272 I.P.C.

The U.P. amendment to the said section is 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 judgment, impose a sentence of imprisonment which is less than imprisonment to life.”

The appellant argued that there was no evidence whatsoever to the effect that the drink, was rendered noxious by the use of Urea and further there was no material whatsoever to establish that there was any intent of selling the said manufactured liquor by the appellant so as to attract the rigour of section 272 IPC. He further argues that the appellant is in custody since 16.11.2016 after the judgment was given against him and had also suffered the custody during the trial of approximately one year. Thus, he argued that the appellant had already undergone six years of imprisonment and the appeal should be allowed on the sentence undergone. Counsel for the appellant placed reliance on two judgments of this Court in the case of Ashok vs. State of U.P. passed in Criminal Appeal No.5815 of 2019 as well as in the case of the State vs Asgar and another passed in Government Appeal No.156 of 2019.

Learned AGA argued that 105 liter of country liquor was recovered from the possession of the appellant and thus, the punishment awarded was justified. He argued that the nature of the offence against the appellant is very serious and the acts done by the appellant is a crime against the whole society and no leniency needs to be shown towards the appellant.

After hearing the counsel for the parties the court raised a query to the learned AGA with regard to what was the material available before the trial court in the form of evidence to allege and establish that the country liquor seized from the possession of the appellant was intended for sale. After going through the entire judgment and the evidence referred, to leading to the conviction of the appellant by means of the impugned judgment, there was no whisper with regard to the intention of the appellant to sell the alleged country liquor. Even the recovery so made from the appellant did not point out to recovery of any packaging material in the form of bottles, labels etc. to demonstrate that the alleged country liquor was intended for sale. There was no evidence on record to establish that adding of Urea to the liquor would render the same noxious for human consumption.

To come to a conclusion that the liquor recovered from the possession of the appellant would fall within 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 was 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’. In the absence thereof, it could not be said that the liquor so recovered was rendered ‘noxious’ for human consumption and further there is no material to implicate the appellant under section 272 of I.P.C. as there was no material to come to the conclusion that the said country liquor was intended for sale. In the 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. was not justified.

The conviction of the appellant under section 60(2) of the U.P. Excise Act cannot be faulted with. The appellant had already undergone more than six years in imprisonment, the appeal was disposed off with direction that the appellant shall be released forthwith on the sentence already undergone.

Reference:

https://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do

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