K.V. Rathnam, A.J.C.
1. One Makhan Chandra Sen, the accused in C. R. case 476 of 63 on the file of 1st Class Magistrate, Sadar is the revision petitioner. He is convicted by the trial court Under Section 46(a) of the Bengal Excise Act and sentenced to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for 15 days. His appeal 96 of 1963 was dismissed by the Addl. Sessions Judge, Tripura confirming the conviction and sentence passed by the trial court.
2. Briefly stated, the case of the prosecution is that at about 8 p. m. on 20th August, 1963, the accused Makhan Chandra Sen was found coming towards his shop on a cycle carrying two packets covered with gunny bags. Kalidas Deb Barma, the Inspector of Excise, have along with his excise guard was keeping watch on the Maharajganj Bazar Road, stopped the accused. Thereupon the accused attempted to destroy the articles which he was carrying and had actually broken one bottle alleged to contain liquor. The Excise Inspector (P.W. 1) seized the gunny bag and found therein two bottles and on examination he found the bottles to contain 1.300 M. L. and 1.500 M. L. of illicit liquor. In the presence of witnesses, P.W. 1 recovered the two bottles, the gunny bags, the broken bottle and the cycle under Ext. P-l. As the accused failed to produce a licence for carrying the liquor he was arrested and subsequently prosecuted for an offence punishable Under Section 46(a) of the Bengal Excise Act, In support of the prosecution case, 4 witnesses are examined of whom P.W. 1 is the Excise Inspector. P. Ws. 2 and 3 are the Jamadar and guard in the Excise Department while P.W. 4 is one Kamini Debnath. a person dealing in fuel. The accused pleaded that the prosecution case is false and that he has not committed any offence. The learned trial Magistrate finding that there is nothing to disbelieve the prosecution case and that the evidence of the prosecution witness remained unimpeached, found the accused guilty for an offence punishable Under Section 46(a) of the Bengal Excise Act for carrying contraband liquor without a licence and sentenced him to pay fine of Rs. 100/- in default to undergo R.I. for 15 days. Observing that the cycle is liable for confiscation under Section 63 of the Bengal Excise Act, the learned Magistrate ordered the same to be returned to the accused on payment of further fine of Rs. 50/-. On appeal, the learned Addl. Sessions Judge by his Judgment dated 30-11-1966 confirmed the conviction and sentence passed by the trial court. Hence the accused has come up to this Court in revision.
3. As Shri N. N. Dasgupta, Advocate who filed this criminal revision petition had died and as the accused had not engaged any other Advocate, on 21st October, 1970 a notice was issued to the accused that his revision petition would be taken up for hearing on 6th November, 1970. The said notice was served on the accused on 27-10-1970, but he has not chosen to take any steps to engage any lawyer nor has he appeared in this Court to argue his case in person. However, the learned Govt. Advocate has taken me through the records and advanced arguments.
4. The finding of fact arrived at by both the courts below is that on 20th August, 1963 at about 8 p. m. the accused was found corning on a cycle bringing along with him 3 bottles and 2 tins kept in gunny bags and that on seeing the Excise Inspector he attempted to destroy the said articles and had actually broken one bottle and that P.W. i seized all the articles and that two bottles were found to contain illicit liquor. It is true, the revisional -jurisdiction conferred on this Court Under Section 439, Criminal P.C. is not to be lightly exercised. However, it could be exercised in exceptional cases where the interests of public justice require for the correction of a manifest illegality or the prevention of gross miscarriage of Justice. In the instant case out of 4 witnesses examined, P.W. 2 and P.W. 3 who were examined on 20-6-1964, were not cross-examined as the advocate for the accused was absent on that day and as the accused expressed his inability to cross-examine them. As such the observation of the trial court that their testimony remained unimpeached cannot be accepted. It may be stated here that on 1-7-1964 the accused has put in an application in the trial court for recalling those 2 witnesses for cross-examination, but the trial court dismissed that application observing that on 20-6-1964 on which date those 2 witnesses were examined, the accused did not file any application for adjournment. When this aspect was brought to the notice of the lower appellate court, the learned Addl. Sessions Judge held that the trial court was justified in refusing to recall the 2 witnesses. I find myself unable to agree with the reasoning given by the courts below on this aspect. When the evidence of P. Ws. 2 and 3 was not at all tested in cross-examination the trial court ought not have placed reliance on their evidence particularly having refused an opportunity to the accused to cross-examine them. The procedure adopted in that regard has certainly caused prejudice to the accused resulting in gross miscarriage of justice. Learned Govt. Advocate while conceding the same, stated that the case may be sent back to the trial court for fresh trial to enable the accused to cross-examine P. Ws. 2 and 3, but considering the long lapse of time and the view I take on the merits of the case, I find it unnecessary to order a retrial as suggested by the learned Govt. Advocate.
5. Section 46(a) of the Bengal Excise Act under which the accused is convicted runs thus:—
If any person, in contravention of this Act, or any rule, notification, or order made, issued or given, or licence, permit or pass granted under this Act:—
(a) imports, exports, transports, manufactures, possesses or sells any intoxicant or
he shall be liable to imprisonment for a term which may extend to six months, or to fine which may extend to one thousand rupees, or both.
As such before the accused could be convicted under the above provision, it must be proved that he was importing, exporting, transporting, manufacturing, possessing or selling any intoxicant in contravention of the Act or any rule, notification, order, licence, permit or pass granted to him.
Section 2, Sub-section (12a) of the Act defines intoxicant thus:—
(i) any liquor, or
(ii) any substance from which liquor may be distilled and which is declared by the Chief Commissioner by notification in Tripura Gazette to be an intoxicant for the purpose of this Act, or
(iii) any intoxicant drug.
Section 2, Sub-section (14) defines liquor thus:—
Liquor means liquid consisting of or containing alcohol, and includes spirits of wine, spirit, wine, tari, Pachawai, beer and any substance which the Chief Commissioner may, by notification, declare to be liquor for the purposes of this Act.
Section 12 of the Bengal Excise Act provides that no intoxicant exceeding such quantity as the Chief Commissioner may prescribe by notification either generally or for any specified local area, shall be imported or transported, except under a pass. The proviso thereof lays down that in the case of duty paid foreign liquor other than denatured spirit, such passes shall be dispensed with unless the Chief Commissioner by notification, otherwise directs with respect to any local area. Thus it is clear from Section 12 that possession of a pass is necessary if the import, export or transport of an intoxicant exceeds the quantity prescribed by a notification issued Under Section 12 of the Act, whereas in respect of duty paid foreign liquor no such pass is required whatever may be the quantity unless by a notification the Chief Commissioner otherwise directs.
In the instant case the accused is charged for possessing and transporting intoxicant, which P.W. 1 the Excise Inspector found to be liquor. Apart from the fact that no notification issued Under Section 12 of the Act referred to above is placed before the court, there is absolutely no satisfactory and convincing evidence to establish that what was being transported by the accused was liquor and that the said liquor was illicit liquor. The evidence of P.W. 1 is that on seizure he has examined the bottle and understood it to contain contraband liquor. That evidence of P.W. 1 by itself is not sufficient to hold that the bottles and tins seized from the accused, in fact, contained contraband liquor. It is true the presumption that a person acts honestly applies as much in favour of an Excise Inspector and it is not a judicious approach to distrust him without good grounds therefor. But when the accused is sought to be convicted on the basis that what was possessed by him at the relevant time was illicit liquor, the oral testimony of the Excise Inspector alone is not sufficient. The contention of the learned Government Advocate that the accused has not disputed the fact of his possessing and carrying with him illicit liquor is not correct. In his examination Under Section 342. Criminal P.C. the accused stated that the prosecution case is false and that he has not committed any offence. Further from the trend of the cross-examination of P.W. 1, it is clear that the accused has questioned the correctness of the statement of P.W. 1 that what was seized from him was liquor. Quite apart from that, it is for the prosecution to prove beyond reasonable doubt the offence punishable Under Section 46(a) of Bengal Excise Act, which the accused is alleged to have committed and the prosecution can be said to have discharged its onus only if it establishes that what was possessed and transported by the accused was illicit liquor. In his chief examination P.W. 1 stated that he has examined them and understood that they were contraband goods and that the 2 bottles and 2 tins contained in all 2.600 M. L. contraband liquor. According to him he has examined the liquor in the distillery and decided it to be liquor. However, he admits that he is only a Matriculate and has not read Chemistry and that he did not make Hydrometre test of the liquor and he further admits that he has not written down the result of his examination on any paper. It is true, P.W. 2 and P.W. 3 stated that P.W. 1 tested the liquor in the distillery. But as stated already, the accused had no opportunity to cross-examine these 2 witnesses and hence no reliance can be placed on their evidence. The only other witness examined by the prosecution is P.W. 4 and he does not speak about P.W. 1 testing the liquor in the distillery. The distillery, is at a distance of about 1 furlong from the place where the accused was stopped and the alleged liquor was seized, and even according to P.W. 1 immediately after the seizure, in presence of witnesses, he has sealed them.
6. In In re Madura Boosena A.I.R. 1964 Andh Pra 429 an identical question arising under Andhra Pradesh Prohibition Act was considered. In that case, the accused were convicted by the trial court Under Section 4 (1) (a) of the Prohibition Act and their conviction and sentence were confirmed on appeal by the Addl. Sessions Judge, Kurnool. Both the courts relied on the evidence of P.W. 1 the Excise Inspector and P.W. 4 a petty officer of the Prohibition Department who stated that the articles seized were smelling arrack. In revision it was contended before the High Court that the prosecution did not Drove by convincing and cogent evidence that the alleged article that was seized from the petitioners which they are alleged to be transporting was arrack or alcohol or any prohibited article. Mohammad Mirja. J. allowing the criminal revision petition and acquitting the accused held thus:—
When scientific methods are available to prove the fact of alcoholic content of an article the Prohibition Officers should not be allowed to confine proof of such an article by their mere oral statements because the primary duty of the prosecution is to exclude every possibility of a doubt or suspicion before they ask for the conviction of a person charged under the Act. The smell of liquor is not sufficient to raise a presumption against a person charged for an offence under the Act. The prosecution when they seize the arrack should get it examined by the chemical examiner. They cannot be allowed to adopt an easier course of examining its own officers to prove the contents of the tins only by smell. If this is to be accepted as a general rule, it would be giving a very large latitude to the prohibition officer to prove alcoholic content of any prohibited article or drug under the act by mere smell.
Aggrieved by that decision, the State of Andhra Pradesh took the matter to the Supreme Court in State of Andhra Pradesh v. Madiga Boosenna. A.I.R. 1967 SC 1550. Their Lordships of the Supreme Court upholding the decision of the High Court observed thus:—
Merely trusting to the smelling sense of the prohibition officers and basing a conviction on an opinion expressed by those officers, under the circumstances, cannot justify the conviction of the respondent. In such a case better proof, by a technical person who has considered the matter from a scientific point of view is not only desirable but even necessary to establish that the article seized is one coming within the definition of 'liquor'. The fact that the accused have not challenged effectively the answers given by the prosecution witnesses that the commodity is arrack will not absolve the prosecution for establishing the ingredients of the offence, for justifying the conviction.
The dictum laid down in the aforesaid decision of the Supreme Court equally applies to the facts of the instant case. That being so, in the absence of proof by a technical person, who has examined the commodity from in scientific point of view it is not at all desirable to base a conviction on the oral testimony of the Excise Inspector that the commodity seized from the accused is liquor. Obviously it is to get over this aspect. P.W. 1 stated that he took the liquor to the distillery and examined it. but admittedly he has not studied chemistry and was not scientifically trained to test liquor and he further admitted that he has not made the hydrometre test and that he has not noted down anywhere the results of his test. P.W. 4 the witness to the seizure of the1 articles does not state about P.W. 1 tiling the liquor in the distillery. That being so, apart from the oral testimony of P.W. 1 the Excise Inspector, there is absolutely nothing on record to establish that what was seized from the accused was illicit liquor.
7. Learned Government Advocate has invited my attention to Section 47 of the Bengal Excise Act which lays down that in prosecutions Under Section 46 it may be presumed, unless and until the contrary is proved, that the accused person has committed an offence punishable under that section in respect of (a) intoxicant or (b)... or (c)... for the possession of which he fails to account satisfactorily.
The presumption provided in Section 47 of the Act cannot be relied on to contend that in all cases of prosecution Under Section 46 of the Act, the initial burden is placed on the accused to prove what was possessed by or seized from him is not an intoxicant. In Lingappa v. State of Mysore A.I.R. 1955 Mys 116, dealing with Section 4 of the Mysore Prohibition Act. the High Court of Mysore has held that the burden of proof is heavy on the prosecution to establish that the articles alleged to have been seized from the accused are prohibited articles. Section 47 of the Bengal Excise Act does not absolve the prosecution from proving the ingredients of the offence with which the accused is charged. The burden is on the prosecution to prove beyond reasonable doubt that the accused was transporting liquor an intoxicant and that burden never shifts; on to the accused. If that is proved by the prosecution, Under Section 47, it may be presumed that in respect of that intoxicant the accused had committed an offence punishable Under Section 46 of the Act if he fails to satisfactorily account for his possession of that intoxicant, but it is not open to the prosecution to urge that by virtue of Section 47 of the Act a presumption may be drawn that what was seized from the accused was liquor.
8. For all the reasons stated above and as there is no satisfactory and cogent evidence to prove what the accused was transporting was an intoxicant as defined in Section 2(12a) of the Bengal Excise Act, the accused is entitled to an acquittal, consequently this revision petition is allowed. The conviction and sentence of the accused are set aside and he is acquitted. The fine amount, if paid, shall he refunded to him. The cycle which was seized from the accused shall also be returned to him.