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Ravindra Nath v. State Of U.P. - CRIMINAL REVISION No. 204 of 1986 [2005] RD-AH 6277 (23 November 2005)


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Criminal Misc.Revision No.204 of 1985

Ravindra Nath @ Binder                             Vs.                               State of U.P.

Hon.Shiv Shanker,J.

This criminal revision has been directed against the impugned order dated 24.1.1986 passed in criminal appeal no.39 of 1984, Ravindra Nath @ Binder vs. State of U.P. by R.S. Pandey, Judicial Magistrate Ist Jaunpur whereby the conviction and sentence for the offence under Section 60 (A) Excise Act was confirmed as the trial court has  convicted and sentenced undergo imprisonment for three months and Rs. 500/- fine in default to undergo  further imprisonment for one month.  

Brief facts, arising out of this criminal revision,  are that on 29.6.1979 at about 4 P.M., Excise Inspector  arrested the accused  and recovered from his possession  38 liters illicit liquor. Thereafter recovery memo of the liquor was prepared by him and same was sealed. The accused was taken to the police station where  the report was lodged. The Excise Inspector submitted a complaint against the accused, who pleaded not guilty.

The prosecution, in support of  this case, examined  Sri N.K. Rai, Excise Inspector and Expert, PW 1, Yogendra Singh, PW 2 and Jaijai Ram, Inspector, PW 3.

Bhulai Ram was examined on behalf of the accused in his defence. Thereafter accused was found guilty by the trial court for the above offence and convicted him.

Against the judgement and order of conviction criminal appeal no.39 of 1984, Ravindra Nath @ Binder Vs. State was preferred.

After hearing the arguments of learned counsel for both the parties, the appeal was dismissed and conviction and sentence awarded by the trial court was confirmed. Feeling aggrieved it. the accused appellant preferred the present revision, which is before this Court.

Heard arguments of learned counsel for both the parties and perused the whole record as well as the impugned  judgement and order.

It is contended on behalf of the revisionist that  liquor contained in 38 bottles were not examined. It is further contended that Excise Inspector has not disclosed his length of  service and experience  for examining the liquor. Therefore, he is not an expert and conviction, based on his evidence, is wholly illegal. It is further contended that there is no testing report of the alleged liquor on the file. It has been argued on behalf of the respondent that court below has not committed any illegality.

After perusal of the judgement and order of the trial court as well as appellate court nothing has come in it that P.W.1 N.K.Rai has disclosed his length of service and experience for examining the liquor. The revisionist/accused has been convicted on the basis of the evidence of expert. It has been observed in the case of  Pitamber vs. State, 1975 CRI.L.J. 948 that

" In the instant case the excise Inspector Abid Nasir Khan did not state either about his qualifications or his experiences. It is not known how long he had been in service as an Excise Inspector nor did he state as to how many samples he had tested. In these circumstances it is not possible to treat this particular Excise Inspector Abid Nasir Khan as an expert within the meaning of Section 45, Evidence Act".                    

It is known that evidence could not, therefore, be relied upon to reach the conclusion that canister in question contained illicit  liquor. The above pronouncement is applicable in the present case. Appellate court gave his opinion regarding the expert without any evidence deeming P.W.1 is the expert under Section 45 Indian Evidence Act. Therefore, P.W.1 N.K.Rai cannot be deemed as expert within the meaning of Section 45 Indian Evidence Act. In the circumstances, both courts have committed illegality by passing the conviction against the revisionist on the basis of evidence of P.W.1, as expert. Therefore, the trial court as well as appellate court committed  illegality in convicting the revisionist for the said offence. Therefore, the findings given by the appellate court and the  trial court are not tenable in this revision.

In view of discussions made I come to the conclusion that this revision is liable to be allowed and the impugned judgement and  order passed by appellate court as well as trial court deserved to be quashed.

This criminal revision is, hereby, allowed. The impugned judgement and   order passed by the appellate court as well as trial court are set aside. The revisionist is acquitted for the offence under Section 60 A Excise Act.

He is on bail in this revision. Therefore, his personal bond and sureties bonds are cancelled and his sureties are discharged.

Dt.           2005



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