# Pradeep Kumar Pandey & Ors v. State of U.P

- **Citation:** (2024) 3 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-04
- **Case number:** Criminal Appeal No. 8560 of 2022
- **Bench:** Arvind Singh Sangwan, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-pandey-ors-v-state-of-u-p-51638
- **Pages:** 11

## Headnote

(A) Criminal Law - Reversal of Conviction
under IPC Section 272 - U.P. Excise Act -
Indian Penal Code, 1860 - Sections 272 -
Adulteration of food or drink intended for
sale, Section 120 - offense of concealing a
design to commit an offense, The Uttar
Pradesh Excise Act, 1910 - Sections 60/63
230 INDIAN LAW REPORTS ALLAHABAD SERIES
- Code of Criminal Procedure, 1973 -
Sections 207 - Supply to the accused of
copy of police report and other documents
- Noxious - Mens Rea - Conviction under
Section 272 IPC and the U.P. Excise Act
cannot
be
sustained
without
clear
evidence of intent to sell noxious food or
drink, as well as specific percentages in
F.S.L. reports.(Para - 17-18, 26-27, 30-31,
39-40)

Appellants
were
accused
of
transporting
adulterated liquor - vehicle crash led to
discovery of 40 liters of allegedly adulterated
liquor - prosecution relied on testimony of two
witnesses, P.W.-1 and P.W.-4 - FSL report
indicated
presence
of
87.2%
alcohol
in
recovered sample - accused were not arrested
at the spot - no test identification parade was
conducted - seized car was not produced before
court - recovery memos were questionable - FSL
report was not supplied to accused in time -
expert who prepared it was not examined.

(Para - 1-6, 9-13, 19-28)

HELD: - Prosecution failed to establish its case
beyond reasonable doubt due to unreliable
eyewitness testimony and non-compliance with
Section 207 Cr.P.C. Accused-appellants were
entitled to benefit of doubt and acquitted of
charges under IPC and UP Excise Act. Judgment
and order of trial court set aside. Accusedappellants acquitted of charges & released from
judicial custody. (Para - 39,40,42,43)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

## Text

3 All. Pradeep Kumar Pandey & Ors. Vs. State of U.P.
229
party do not co-relate with number of coaccused or in the alternative in an attempt
to rope in as many persons as possible from
other side. Apex court acquitted, the
accused
who
was
implicated
for
committing offence under section 302
I.P.C. with the help of section 34 I.P.C.

24. This court further finds that most
of the arguments raised by the learned
counsel for the appellants have not been
replied by the other side such as the
weakness of motive, delay in lodging of
First Information Report, falacity of
arguments regarding the opening of door,
when no door was found in the house of the
deceased, semi -digested food in the
stomach of the deceased , his bladder being
empty, non production of wife of the
deceased as witness by the trial court;
discrepancy in the injury and weapon
allegedly used in the crime;difference of
cloths founds on the body of the deceased.

25. The Apex court in the case of The
State of U.P. and another Vs. Jaggo alias
Jagdish and others, AIR 1971, SC 1586
has held that witness whose evidence is
essential for unfolding the narrative must
be produced in evidence. Non-production
of Urmila, the wife of deceased, before the
court proves that prosecution case was
doubtful. She was the best witness to have
proved the manner of incident and the roles
of accused therein.

26.

In
view
of
the
above
consideration, the judgement and order of
the trial court cannot be sustained and is
hereby set aside. The surviving appellant
nos. 3, 5, and 6, namely, Devendra Singh,
Kehri Singh and Rakesh Kumar, are
acquitted of charges under section 302/149
I.P.C. They are on bail. Their bail bonds are
cancelled and sureties are discharged. The
amount of fine, if deposited by the
surviving appellants, shall be refunded to
them.

27. Certify the judgement to the lower
court within a week for compliance and
making entry of decision in the register.
The record of the case be also transmitted
to
the
court
below
immediately.
Compliance of section 437-A shall be
ensured by the court below The compliance
shall be reported by the court below to this
court within four weeks from the date of
receipt the copy of this judgement.

28. Criminal Appeal is allowed.
----------
(2024) 3 ILRA 229
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.01.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 8560 of 2022

Pradeep Kumar Pandey & Ors.
 ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri
Dhirendra
Kumar
Srivastava,
Sri
Sandeep Maniji Bakshi, Sri Utsav

Counsel for the Respondent:
G.A.

(A) Criminal Law - Reversal of Conviction
under IPC Section 272 - U.P. Excise Act -
Indian Penal Code, 1860 - Sections 272 -
Adulteration of food or drink intended for
sale, Section 120 - offense of concealing a
design to commit an offense, The Uttar
Pradesh Excise Act, 1910 - Sections 60/63
230 INDIAN LAW REPORTS ALLAHABAD SERIES
- Code of Criminal Procedure, 1973 -
Sections 207 - Supply to the accused of
copy of police report and other documents
- Noxious - Mens Rea - Conviction under
Section 272 IPC and the U.P. Excise Act
cannot
be
sustained
without
clear
evidence of intent to sell noxious food or
drink, as well as specific percentages in
F.S.L. reports.(Para - 17-18, 26-27, 30-31,
39-40)

Appellants
were
accused
of
transporting
adulterated liquor - vehicle crash led to
discovery of 40 liters of allegedly adulterated
liquor - prosecution relied on testimony of two
witnesses, P.W.-1 and P.W.-4 - FSL report
indicated
presence
of
87.2%
alcohol
in
recovered sample - accused were not arrested
at the spot - no test identification parade was
conducted - seized car was not produced before
court - recovery memos were questionable - FSL
report was not supplied to accused in time -
expert who prepared it was not examined.

(Para - 1-6, 9-13, 19-28)

HELD: - Prosecution failed to establish its case
beyond reasonable doubt due to unreliable
eyewitness testimony and non-compliance with
Section 207 Cr.P.C. Accused-appellants were
entitled to benefit of doubt and acquitted of
charges under IPC and UP Excise Act. Judgment
and order of trial court set aside. Accusedappellants acquitted of charges & released from
judicial custody. (Para - 39,40,42,43)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. Ashok Vs St. of U.P., 2021 (2) ALJ
259/AIRONLINE 2021 All 13

2. Tarun Tyagi Vs C.B.I., (2017) 4 SCC 490

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. This criminal appeal has been
preferred
by
the
accused-appellants,
Pradeep Kumar Pandey, Kartikey Pandey,
and Amrendra Kumar Pandey against the
judgment and order dated 16th September,
2022
passed
by
the
Special
Judge
(SC/ST)/Additional Sessions Judge, Court
No.2, Bhadohi in Sessions Trial No. 108 of
2016 (State Vs. Pradeep Kumar Pandey &
Others) arising out of Case Crime No. 282
of 2015, under Sections 272, 120 of I.P.C.
read with Sections 60/63 Of U.P. Excise
Act,
Police
Station-Aurai,
DistrictBhadohi, whereby all three accusedappellants
have
been
convicted
and
sentenced to life imprisonment each under
Section 272 of I.P.C. with a fine of Rs.
5,000/- each and in default thereof, they
have to further undergo one year additional
imprisonment; and one year rigorous
imprisonment each under Section 60 of the
Excise Act with fine of Rs. 500/- each and
in default thereof, they have to further
undergo
one
month
additional
imprisonment each, with an observation
that
all
the
sentences
are
to
run
concurrently.

2. We have heard Mr. Dhirendra
Kumar Srivastava, learned counsel for the
accused-appellants and learned A.G.A. for
the State and also perused the entire
materials available on trial court record.

3. The prosecution story is that on
11th July, 2015, the Sub-Inspector Suresh
Singh
(informant)
and
other
police
personnels were on patrol duty for
searching the miscreants on the way of
Maharajganj and when they reached near
the tractor workshop of one Bhola Singh,
they found that Anand Kumar Singh,
Village Pradhan of Village Tewri along
with two persons were chasing two young
boys, who were aged around 19 to 20 years
and were wearing dark coloured pants and
shirt, and were running towards the western
side of the tractor workshop. Seeing them,
all the police personnels including the
3 All. Pradeep Kumar Pandey & Ors. Vs. State of U.P.
231
informant and other villagers tried to chase
both the young boys and made all possible
efforts to nab them but they took the
advantage of rain and escaped.

4. As per the informant, the Village
Pradhan, Anand Kumar told him that at
about 09.00 p.m. one vehicle bearing No.
U.P. 70 AL-0312 came from the side of
Varanasi in a high speed and after losing its
balance went down the road and collided
with the old thresher kept at the vacant
place before the workshop and it got
damaged. At that time he was on his way to
the tractor workshop for his work. The
Village Pradhan further stated that two
person quickly came out of the aforesaid
vehicle and swiftly started running towards
the west side on the road. On suspicion that
they might be criminals, he along with
other villagers tried to chase them. In the
meantime, Police personnels came and
information was given that some illicit
substance may be kept in the vehicle.
Following this, the damaged vehicle
bearing No. UP 70 AL-0312 was checked
by the Police personnels along with Village
Pradhan and from the back side of the
vehicle i.e. dicky, two Jerrican (can) in
black colour were recovered, out of which,
one was broken and empty and the other
contained
about
40
liters
liquor
(adulterated). When the cap of the said
Jerrican was opened, it emitted strong smell
of mixed liquor. Out of the aforesaid 40
litres of liquor (adulterated), one litre was
taken out as a sample in a plastic bottle and
the same was sealed. The recovered
Jerrican containing remaining 39 litres
adulterated
liquor
was
also
sealed.
Recovery memos were prepared. The
recovered vehicle was also seized as per
Section 207 of the Motor Vehicles Act for
carrying/transporting illicit liquors. After
that, case under Sections 60/63 of Excise
Act and Section 272 of I.P.C. against two
unknown persons was registered.

5. Later on, during investigation, the
accused-appellant, Pradeep Kumar Pandey
was arrested upon obtaining a report from
the concerned Regional Transport Officer
in which it was stated that the recovered
vehicle bearing No. UP 70 AL-0312
belongs to the accused-appellant Pradeep
Kumar Pandey.

6. Investigation proceeded and after
conducting statutory investigation in terms
of Chapter XII of the Cr.P.C. the
Investigating Officer submitted the Charge
Sheet Nos. 11/2016 and 11A/2016 against
the accused-appellants, namely, Pradeep
Kumar Pandey, Kartik Kumar Pandey and
Amarendra Kumar Pandey under Sections
272, 120B of I.P.C. and Sections 60/63 of
Excise Act for trial before the Court
concerned. Upon submission of the chargesheets, cognizance was taken by the
Additional Chief Judicial Magistrate on
12.02.2016 and the case was committed to
the Court of Sessions. The concerned
Sessions Court i.e. trial court framed the
charges against the accused-appellants,
namely, Pradeep Kumar Pandey, Kartik
Kumar Pandey and Amarendra Kumar
Pandey under Sections 272, 120B of I.P.C.
and Sections 60/63 of Excise Act. The
accused-appellants denied the charges and
requested for trial.

7. The prosecution examined total
four witnesses in the following manner:-

i) P.W.-1/Informant, namely, SubInspector Suresh Singh;

ii) P.W.-2, namely, Anil Kumar
Gupta, retired Sub-Inspector;

iii)
P.W.-3,
namely,
Hemant
Kumar Jaiswal, Head Constable; and
232 INDIAN LAW REPORTS ALLAHABAD SERIES

iv) P.W.-4, namely, Anand Kumar
Singh, Village Pradhan, who is said to be
an eye-witness.

8. In order to prove its case, the
prosecution
relied
upon
documentary
evidence, which were duly proved and
consequently marked as Exhibits. The same
are catalogued herein below:-

i) Recovery memos/written report
have been marked as Exhibit-Ka-1;

ii) Charge-sheets submitted by
the Investigating Officer against the
accused-appellants have been marked as
Exhibits Ka-2 & 3;

iii) Site plan has been marked as
Exhibit-Ka-4;

iv) Letter written to the Regional
Transport Officer has been marked as
Exhibit-Ka-5;

v). Carbon copy of G.D. entry has
been marked as Exhibit-Ka-6; and

vi). The first information report
has been marked as Exhibit-Ka-7.

9. P.W.-1/informant, namely, SubInspector Suresh Singh, in his statement,
has reiterated the same version as unfolded
in the first information report. It is stated
that the damaged car, which was used for
transporting the illicit liquor was seized
under Section 207 of the Motor Vehicles Act
and the same has been made case property.
The recovery memos of the seized car and
Jerrican were marked as Exhibit Ka-1 and the
same were proved by P.W.1. The recovered
car bearing No. UP 70 AL-0312 is lying in
the Police Station in a damaged condition and
therefore, it could not be produced before the
trial court.

10. P.W.-2, Anil Kumar Gupta, retired
Sub-Inspector, in his statement has supported
the prosecution version as unfolded in the
first information report. He has submitted that
after the verifying the fact that the owner of
the recovered Indica Car No. UP 70 AL-0312
was the accused-appellant Pradeep Kumar
Pandey, he was arrested. Later on, other two
accused-appellants, namely, Kartik Kumar
Pandey and Amarendra Kumar Pandey were
also nominated from the disclosure made by
the accused-appellant Pradeep Kumar Pandey
in his confessional statement before the
Police. This witness has also proved the
memos of arrest of accused-appellants,
namely,
Kartik
Kumar
Pandey
and
Amarendra Kumar Pandey, which were
marked as Exhibits Ka-3A/1 and 3A/2 and
also the site plan which was marked as
Exhibit-Ka-4. The letter written to the
Regional Transport Officer along with report
of P.W.2, which were marked as Exhibit-ka-5
has also been proved by this witness.

11. P.W.-3 Head Constable Hemant
Kumar Jaiswal has also supported the
prosecution version as enumerated in the first
information report. He has also stated that he
has prepared the recovery memos of seized
car, Jerrican containing 39 litres adulterated
liquor and the plastic bottles containing one
litre adulterated liquor as sample. He has also
prepared the report of seizure of the car under
Section 207 of the Motor Vehicles Act. He
has prepared the chik first information report.
He has further stated that his statement has
also been recorded by the Investigating
Officer under Section 161 Cr.P.C. He has
proved the document no. 8A/5, which was
prepared by him and was marked as
Exhibit-Ka-6. He has also proved the
computerized copy bearing no. 4A/1, which
was prepared by Sita Ram Yadav and
marked as Exhibit-Ka-7.

12. P.W.-4, Anand Kumar Singh, who
is said to be an eye-witness has deposed in
his statement that at the time of incident, he
3 All. Pradeep Kumar Pandey & Ors. Vs. State of U.P.
233
was village Pradhan of village Tewri and he
was present at his house, when at about
09:00 a.m. (in the morning) a car, which
was in high speed collided with the thresher
parked next to Shambhu Singh's tractor
workshop on the east side. On hearing the
loud noise, he and some other villagers
from the neighbourhood came to the spot.
It was seen that a car bearing No. UP 70 AL
0312 had collided with a thresher due to
which the rear seat of the car was broken
and the front bumper was also broken. Two
boys of around 19 to 20 years of age were
sitting inside the car. The smell of alcohol
was coming from the car. After opening the
gate, both the boys were hauled out and
after some time, they both began to walk
and moved a short distance apart. They
thought that they were going for natures'
call, but after reaching some distance both
of them started running away. This witness
and two-three boys tried chasing them. In
the
meantime,
P.W.-1/informant
and
Assistant Sub-Inspector Vijay Yadav came
on the spot and asked why were both boys
running, P.W.-4 informed them everything
and showed the two boys running. P.W.-1
and Vijay Yadav also started chasing them.
But taking advantage of the rain, both boys
succeeded in escaping from the spot.
Thereafter, the damaged car was checked,
two Jerricans of about 40 liters each were
found, one of which was filled with
adulterated liquor and the other was broken
and its thick liquor had flown away. After
that one litre liquor was taken out from the
jerrican containing 40 litres of adulterated
liquor as a sample. This witness has further
stated that the Police personnels prepared
the recovery memos on which he appended
his signatures and proved the same before
the trial court. Thereafter the Police took
away the damaged car to the Police Station
with the help of Crane, He has further
stated that he was asked by the Police
whether he could identify the said boys at
the police station in front of them.
Statement of P.W.-4 was also recorded by
the Investigating Officer under Section 161
Cr.P.C. He has proved the recovery memos
prepared by the Police and were marked as
Exhibit-Ka-1.

13. After recording of the prosecution
evidence
by
the
trial
court,
the
incriminating evidence were put to the
accused-appellants,
namely,
Pradeep
Kumar Pandey, Kartik Kumar Pandey and
Amarendra Kumar Pandey for confronting
with the same under Section 313 Cr.PC. In
their statements recorded under Section 313
Cr.P.C. the accused appellants, denied their
involvement in the commissioning of the
offence punishable under Sections 272 and
120-B of I.P.C. and Sections 60/63 of
Excise Act. The accused-appellants have
also not adduced any evidence in support of
their case.

14. On the basis of evidence so lead
during the course of trial, the court below
has come to the conclusion that the
prosecution has established its case beyond
reasonable
doubt
against
accusedappellants and has convicted them for the
offence punishable under Section 272 of
I.P.C. and Section 60 of Excise Act and
sentenced them to life imprisonment with
fine, referred to above.

15. At the very outset, learned counsel
for the accused-appellants has submitted
that the accused-appellants have undergone
more than one and half years of actual
sentence as on date.

16. Assailing the impugned judgment
of conviction, it is argued by the learned
counsel for the accused-appellants that the
charge under Section 272 of I.P.C. is not
234 INDIAN LAW REPORTS ALLAHABAD SERIES
made out against the accused-appellants. In
support of his submission, he has referred
to Section 272 of I.P.C., which is extracted
herein-below:

"272. Adulteration of food or
drink intended for sale

Whoever adulterates any article
of food or drink, so as to make such article
noxious as food or drink, intending to sell
such article as food or drink, or knowing it
to be likely that the same will be sold as
food or drink, 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.

STATE AMENDMENTS

........

Uttar Pradesh:

In its application to the State of
Uttar Pradesh, in S. 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" substitute the following words. "shall
be punished with imprisonment for life and
shall also be liable to fine":

Provided that the Court may, for
adequate and special reasons to be
mentioned in the judgement, impose a
sentence of imprisonment which is less than
imprisonment for life."- U.P. Act 47 of
1975, S. 3 (1) (15-9-1975)."

17. Learned counsel for the accusedappellant submits that from the perusal of
the aforesaid Section, it is apparent that in
order to prove the charge under Section 272
of I.P.C. the prosecution is required to
prove that the recovered article from a
person is an adulterated article of food or
drink, so as to make such article noxious as
food or drink and the intention to sell such
article as food or drink.

18. Learned counsel for the accusedappellants submits that there is no evidence
on record that the accused-appellants
intended to sell the recovered material as an
article of food or drink. Learned counsel
for the accused-appellants submits that
another requirement under Section 272 of
I.P.C. is that the accused/persons must have
knowledge that it is likely to be sold as
noxious drink or food. The intention and
mens rea on the part of the accusedappellants is to be proved by the
prosecution, which is completely missing
in the present case.

19. Then, learned counsel for the
accused-appellant has referred to the first
information report, which was marked as
Exhibit-Ka-7, G.D. entry dated 11th July,
2015 and the recovery memo marked as
Exhibit-Ka-1, wherein it is mentioned that
at the spot, car make of Alto bearing No.
UP 70 AL 0312 was found, whereas in the
letter addressed to the Regional Transport
Officer by the Investigating Officer dated
15th July, 2015, which was marked as
Exhibit Ka-5 for verification of the
recovered and seized car, it is mentioned
that the said car is of make Indica bearing
Registration No. UP 70 AL 0312, Engine
No. BTZP 17671, Chassis No. 600136
BTZP 4930.

20. The learned counsel for the
accused-appellants has also drawn the
attention of the Court to the report
submitted by the Regional Transport
Officer in response to the letter of the
Investigating Officer, which was also
marked as Exhibit Ka-5, wherein it has
been stated that vehicle No. UP 70 AL 0312
3 All. Pradeep Kumar Pandey & Ors. Vs. State of U.P.
235
of make "Indica" belongs to accusedappellant Pradeep Kumar son of Panna Lal.

21. Thus, it has been argued by the
learned counsel for the accused-appellants
that it is the candid case of the prosecution
as well as P.W.-4 that from the spot the car
of make Alto was recovered and later on
during
the
investigation,
it
was
converted/changed into a car of make
"Indica",
without
there
being
any
explanation in this regard. It is a major
inconsistency in the prosecution evidence.

22. Next argument of the learned
counsel for the accused-appellant is that
there is no evidence on record that after the
arrest of the accused-appellants when they
were produced before the Magistrate along
with the case property, any endorsement
was made by the concerned Magistrate as
required under Section 457 Cr.P.C. ,when
as a matter of fact that it is the specific case
of the Investigating Officer and P.W.-1 that
the recovered car was never produced,
before the trial court, as it was in damaged
condition for verifying/establishing the fact
that the recovered car from the spot was a
car of make "Alto" or "Indica".

23. It is next argued that even the
identity of the accused-appellants were not
proved by the prosecution. It has come in
the statement of P.W.-4 that two boys of
around 19 to 20 year of age were seen in
the car and that they ran away from the
spot.

24. Learned counsel for the accusedappellant has next argued that as per the
prosecution case, even the seizure of the
sample i.e. 1 litre of adulterated liquor
taken from the Jerrican containing 40 litres
adulterated liquor, was not proved, as no
sample slip or recovery memo was
prepared at the spot which was sent for
chemical examination to Forensic Science
Laboratory. Even the remainder of 39 litres
was not produced before the trial court, as
admitted by P.W.-1/informant.

25. Learned counsel for the accusedappellant has referred to the statement of
P.W.-4, who is said to be an eye-witness. In
the cross-examination, P.W.-4 has stated
that he has not signed on the written
recovery memos, whereas the Police
obtained his signatures on a blank paper,
which also creates a doubt in the
prosecution case.

26. Learned counsel for the accusedappellants next argued that in order to
establish its case under Section 272 of
I.P.C.
against
the
accused-appellants
beyond reasonable doubt, the prosecution
has
to
prove
that
the
recovered
article/material is in fact noxious drink
meant for sale. Learned counsel for the
accused-appellants has drawn the attention
of the Court to the report of the Joint
Director, Forensic Science Laboratory,
U.P., Ramnagar, Varanasi dated 22nd
December, 2015, wherein the result reads
as under:

"बोतल क िूर दवश्लेषण द्व र अवदमदित दथप्रांट
प यी गयी। नमूने में एल्कोहल की प्रदतशत म त्र 87.2 आयतन /
आयतन प यी गयी। नमूने में अमोदनयम क्लोर ईड (नौस िर) के
परीक्षण पररण म सक र त्मक प ये गये तथ दडनेचरेधट्स दमथ इल
एल्कोहल एवां क्लोरलह इड्रेट' के परीक्षण पररण म नक र त्मक प ये
गये। भौदतक एवां र स यदनक दवदधय ाँ प्रयोग की गयी।"

27. On perusal of the said report,
learned counsel for the accused-appellants
submits that on analysis of the bottle, sprint
was found in the sample. The percentage of
alcohol in the sample was found to be 87.2
%. In the sample, the test results of
ammonium chloride salt were found
236 INDIAN LAW REPORTS ALLAHABAD SERIES
positive, whereas the test results of
denatured methyl alcohol and chloro
hydrate were found negative. There is no
opinion formed that recovered alcohol was
unfit for human consumption.

28. Learned counsel for the accusedappellant has referred to Section 3 of the
U.P. Excise Act, wherein the word
"denatured" is defined under Section 3 (9)
of the Excise Act. For ready reference the
same is quoted hereunder:

"3. Definitions.---

..

[(9) "denatured" means rendered
unfit for human consumption in such
manner as may be prescribed by the [State
Government] by notification in this behalf.
When it is proved that any spirit contains
any quantity of any substance prescribed by
the '[State Government] for the purpose of
denaturation the Court may presume that
such spirit is or contains or has been
derived from denatured spirit;]"

29. Learned counsel for the accusedappellants submits that even as per the
report of the Forensic Science Laboratory,
wherein no percentage of ammonium
chloride is defined or mentioned and only it
is stated that same is found in positive,
therefore, is not sufficient to hold that the
recovered article in fact is noxious drink.

30. Learned counsel for the accusedappellants has relied upon the judgment of
this Court in the case of Ashok Vs. State of
Uttar Pradesh reported in 2021 (2) ALJ
259/AIRONLINE 2021 All 13, wherein this Court
has held that where the report of the Forensic
Science Laboratory does not specify the
percentage
of
the
Ammonium
Chloride
(Nausadar) and only speaks of presence of urea,
Ammonium Chloride, it cannot be said to be a
legal report in eye of law for bringing a person
guilty for offence punishable under Section 272
I.P.C.

31. Learned counsel for the accusedappellants submits that in the report submitted by
the Joint Director, Forensic Science Laboratory,
U.P., Ramnagar, Varanasi dated 22nd December,
2015, only presence of Ammonium Chloride
(Nausadar) is found but there is no percentage of
Ammonium Chloride (Nausadar) mentioned in
such report and therefore the conviction of the
accused-appellants under Section 272 I.P.C. is
liable to be set aside.

32. In the case of Ashok (Supra), it has also
been observed that the Food Act as per Chapter IX
deals with the offences and penalties which
provide for punishments for contravention of the
provisions of the Act. However, the comparative
study of Section 272 of I.P.C. and the relevant
provisions of Food Act, which has repealed the
Prevention of Food Adulteration Act, 1954 do not
provide the definition of terms with regard to
commission of offence, as in the present case.

33. Perusal of the judgment of this Court in
the case of Ashok (Supra) shows that in the said
case also recovered article was illicit liquor
containing Ammonium Chloride (Nausadar)
without specifying any percentage and on the
basis of same the Court has come to the
conclusion that the prosecution has failed to
establish its case beyond reasonable doubt against
the accused-appellant and therefore, the
conviction of the accused under Section
272 of I.P.C. was set aside. Learned counsel
for
the
accused-appellant,
therefore,
submits that the conviction of the present
accused-appellants is also liable to be set
aside.

34. However, the learned Additional
Government Advocate for the State has
opposed the above submission advanced on
3 All. Pradeep Kumar Pandey & Ors. Vs. State of U.P.
237
behalf of the accused-appellants on the
ground that it is the accused-appellants to
prove that the liquor which was carrying
was not meant for human consumption.

35. Learned Additional Government
Advocate for the State has further argued
that in the report submitted by the Regional
Transport Officer, it was mentioned that the
recovered car belongs to one of the
accused-appellant
i.e.
Pradeep
Kumar
Pandey and therefore, wrong mentioning of
make of car in the first information report,
which was marked as Exhibit-Ka-7, G.D.
entry dated 11th July, 2015 and the
recovery memo marked as Exhibit-Ka-1,
will not demolish the prosecution case to
hold that no case is made out against the
accused-appellants. He has also argued that
P.W.-4,
who
is
an
eye-witness
has
supported the prosecution case in all
respect and has proved the recovery memo.

36. Learned Additional Government
Advocate could not dispute the fact that no
test
identification
parade
which
has
evidentiary value under Section 9 of the
Indian Evidence Act, was done in the
present case and even in the statements of
the prosecution witnesses, it has not come
that two of the accused-appellants were in
fact the same persons, who were sitting in
the car collided with the thresher as per the
prosecution case.

37. On a query made by Court about
the criminal antecedents to the credit of the
accused-appellants, learned counsel for the
accused-appellants has submitted that they
were not involved in any criminal case
before institution of the present criminal
case nor they have been convicted in any
other case. One of the accused-appellant
i.e. appellant no.1 is said to be 60 years of
age. This fact is not denied by the learned
A.G.A.

38. After considering the submissions
made by the learned counsel for the parties
and after appreciation of the evidence on
record with regard to the credibility of and
reliability of P.W.-1 and P.W.-4, we do not
find the same trustworthy or reliable nor
can they be treated as eye witnesses so as to
rely upon their testimony. P.W.-1 has
neither given make of car nor produced the
case property i.e. car and remaining sealed
39 litres of alcohol.

39. In view of the deliberation and
discussions, we find that prosecution has
not been able to establish its case beyond
reasonable
doubt,
inasmuch
as
the
witnesses
of
fact
produced
by
the
prosecution are also not found reliable. The
F.S.L.
report
does
not
support
the
prosecution case. There is no other
evidence on the basis of which the
conviction and sentence of the accusedappellant could be sustained.

40. In such view of the matter, we
find that judgement and order passed by the
Court below convicting the accusedappellants
cannot
be
sustained
for
following reasons:

a). The Court below has not
examined the testimony of witnesses and
other evidence on record nor have they
been carefully scrutinized. There are
inherent contradictions in their versions,
which have been clearly overlooked by the
trial court. The basic and important
evidence which is lacking in this case is
that nothing has come on record to prove
that the recovered article was meant for
sale as human consumption. It is also not
proved that the recovered item falls within
the definition of noxious food, which is
harmful
for
human
consumption.
In
absence of any specific report regarding
238 INDIAN LAW REPORTS ALLAHABAD SERIES
percentage
of
Ammonium
Chloride
(Nausadar), though it is specified in the
report of Forensic Science Laboratory that
in the sample 87.2 % alcohol was found,
the prosecution has even failed to prove
that the recovered illicit liquors from the
car was meant for sale and for human
consumption.

b). Another aspect which makes
the prosecution case doubtful is that no
accused-appellant/person was arrested on
the spot and after their arrest, the
prosecution has failed to conduct the test
identification parade and therefore, the
accused-appellants are entitled to benefit of
doubt. Even otherwise, the case property
i.e. the seized car has also not been
produced before the trial court, so that it
may find out as to whether the seized car is
make of "Alto" or "Indica" and the same
belongs to one of the accused-appellant i.e.
Pradeep Kumar Pandey. The FIR reflects
make of the car as "Alto", which met with
accident from which recovery was made.
Moreover, even in the statement of P.W.-
1/informant make of the car is not
mentioned.

c). The recovery memos of
Jerrican containing 40 litres of adulterated
liquor as per the case of prosecution and
broken Jerrican, prepared by the Police also
make the recovery doubtful, as P.W.-4
himself in his cross-examination has stated
that he has not signed on the written
recovery memos and his signatures were
obtained by the Police on a blank paper.

d). In examination-in-chief, P.W.-
4 Anand Kumar, who is the sole eyewitness, failed to identify any of the
accused-persons and in cross-examination,
he admitted that no accused was arrested at
spot. This witness stated that his signatures
were taken on a blank paper by the Police.
Therefore, the identity of none of the
accused is proved.

e). The report of the F.S.L. was
put to accused persons for the first time
during statement recorded under Section
313 Cr.P.C. There is nothing on record to
prove that it was part of report under
Section 173 Cr.P.C. and was provided to
accused persons at the time of framing of
charge. Both the Investigating Officers i.e.
P.W.-1 and P.W.-2 have failed to prove and
exhibit the report under Section 173 (2)
Cr.P.C. along with the list of documents.
Therefore, the F.S.L. report was never
supplied to the accused persons.

It is held by the Supreme Court of
India in the case of Tarun Tyagi Vs.
Central Bureau of Investigation reported
in (2017) 4 SCC 490 that Section 207
Cr.P.C. puts an obligation on prosecution to
furnish to the accused copies of documents,
free of cost, which are forwarded by the
Police to the Magistrate report under
Section 173 (5) Cr.P.C.

f) Though
the
expert,
who
prepared F.S.L. report, is not examined as
witness, yet the trial court in view of
Section 293 Cr.P.C. has relied upon and
taken into consideration. But once the
F.S.L. report is not supplied till the stage of
recording statement of accused under
Section 313 Cr.P.C., the right of accused to
cross-examine the Investigating Officers on
this point was denied.

g). Even the charge made under
Sections 60/63 of U.P. Excise Act is not
sustainable. Section 60 provides penalty for
unlawful
import,
export,
transport,
manufacture,
possession
or
sale
of
intoxicants. The punishment for possession
and transportation of intoxicant, as per
Section 60 (b) of U.P. Excise Act, which is
not covered under Section 63 of the Act, is
upto two years and fine, as defined and
punishment for transport and possession of
unlawfully imported intoxicant is six
months
to
five
years
with
fine.
3 All. Hariom Vs. State of U.P.
239

In the instant case, neither the
possession nor transportation is proved as
already held that none of the accused was
arrested at spot; make of car is different i.e.
recovered car was "Alto" and later on
changed as "Indica"; neither the case
property nor car was produced before the
trial court; the sole eye-witness i.e. P.W.4
failed to identify any of the accused; the
F.S.L. report was never supplied to the
accused in terms of provision of Section
207 Cr.P.C. and F.S.L. report does not
specify contents/percentage of Ammonium
Chloride and ever does not disclose the
sample as unfit for human consumption.
Therefore, on all counts prosecution case
false flat.

41. In view of the above, the findings
returned in the judgement and order passed
by the Court below dated 16th September,
2022
passed
by
the
Special
Judge
(SC/ST)/Additional Sessions Judge, Court
No.2, Bhadohi in Sessions Trial No. 108 of
2016 (State Vs. Pradeep Kumar Pandey &
Others) arising out of Case Crime No. 282
of 20105, under Sections 272, 120 of I.P.C.
read with Sections 60/63 Of U.P. Excise
Act,
Police
Station-Aurai,
DistrictBhadohi, convicting and sentencing the
accused-appellants are reversed.

42. The present criminal appeal
consequently succeeds and is allowed.
Judgement and order dated 16th September,
2022
passed
by
the
Special
Judge
(SC/ST)/Additional Sessions Judge, Court
No.2, Bhadohi in Sessions Trial No. 108 of
2016 (State Vs. Pradeep Kumar Pandey &
Others) stands set aside.

43. The accused appellants, who are
in judicial custody for more than one year
and six months, are acquitted of the charges
and they shall be released forthwith, unless
are wanted in any other case on compliance
of Section 437-A Cr.P.C.

44. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Bhadohi,
henceforth,
for
necessary
compliance.
----------
(2024) 3 ILRA 239
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2024

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 9185 of 2022
And
Criminal Appeal No. 9644 of 2022
And
Criminal Appeal No. 9885 of 2022

Hariom ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajrshi Gupta, Sri Mukesh Singh, Sri
Devendra Kumar Tiwari, Sri Rizwan Ahmad,
Sri Dileep Kumar (Sr. Advocate)

Counsel for the Respondent:
G.A., Sri Vikas Tripathi, Sri Sagir Ahmad
(Sr. Advocate)

(A) Criminal Law - Suspension of sentence
pending appeal - Indian Penal Code, 1860
- Sections 147, 148, 149, 307, 302, The
Code of criminal procedure, 1973 - Section
389(1) - Suspension of sentence pending
the appeal; release of appellant on bail -
Arms Act, 1959 - Section 3/25 - Prima
Facie Satisfaction - Ocular Testimony -
Appellate court should avoid microscopic
analysis
of
evidence
while
deciding
suspension of sentence under Section