A. Kokan Rao vs State of Orissa

The petitioner A.Kokan Rao has filed this application under section 482 Cr.P.C. for quashing the impugned order dated 15.02.2006 passed by

the learned S.D.J.M., Berhampur in G.R. Case No. 1744 of 2005 in taking cognizance of the offences under section 272 of the Indian Penal

Code and section 47(a) of Bihar & Orissa Excise Act and issuance of process against him.

On the basis of the first information report submitted by Manoranjan Mishra, S.I. of Police, Berhampur Town Police station, Berhampur Town

P.S. Case No. 342 of 2005 was registered on 15.11.2005 under sections 272/273 of the Indian Penal Code and section 47(a) of the Bihar &

Orissa Excise Act. As per the first information report, it is the prosecution case that on the direction of the Inspector in charge of Berhampur Town

police station, while the informant along with other police officials were conducting evening patrolling at about 5.30 p.m. at Gate Bazar, Canal Sahi

area, they received reliable information that the petitioner was carrying two plastic jarkins filled with liquor and proceeding towards the Baikuntha

Nagar. On receipt of such information, the informant along with other patrolling staff rushed to that area and found that one person was carrying

two plastic jarkins in his hand and proceeding towards Baikuntha Nagar and they detained the person and found the two plastic jarkins were full

with liquor and the person concerned failed to produce any license or authority for possession of such liquor. As the possession of I.D. liquor is

noxious for health of the public which he was taking for selling to the public, the seizure was made and the person concerned disclosed his name

and address to be the petitioner in the case. The informant collected samples from the two bottles and seized liquor and lodged the F.I.R.

On completion of investigation, charge sheet was submitted on 12.02.2006 under section 272 of the Indian Penal Code and section 47(a) of

Bihar & Orissa Excise Act against the petitioner as well as one Sk. Kalim.

Mr. Jeetendra Samantaray, learned counsel appearing for the petitioner contended that submission of charge sheet under section 272 of the

Indian Penal Code and taking cognizance of such offence suffers from non-application of mind in as much as there is no material that the article

which was seized from the possession of the petitioner was noxious as drink and the petitioner had adulterated such drink intending to sell it as

drink or knowing that it will be sold as drink. Learned counsel for the petitioner relied upon the chemical analysis report in support of his

contention. The learned counsel for the State on the other hand supported the impugned order.

On the basis of the materials available on record, it prima facie appears that I.D. liquor was seized from the possession of the petitioner on

15.11.2005. The chemical analysis report indicates that the two samples which were sent in two sealed glass bottles and marked as Exhibit A &

B, on chemical analysis it was found that both the exhibits contained I.D. liquor and the percentage of ethyl alcohol in each of them 28% v/v.

Methyl alcohol could not be detected in the exhibits A & B.

In order to attract the ingredients of the offence under section 272 of the Indian Penal Code, the prosecution is required to prove that the article

involved was food or drink meant to be consumed by live persons and that the accused adulterated it and that such adulteration rendered it

noxious as food or drink and that the accused adulterated it with intention to sell such article as food or drink. The word ''noxious'' means harmful,

poisonous or injurious to health.

The learned counsel for the petitioner as well as the learned counsel for the State produced some study materials relating to methyl alcohol and

ethyl alcohol which indicate that ethyl alcohol is a volatile, flammable, colorless liquid with a significant characteristic odour. It is a psychoactive

substance and is the principal type of alcohol found in alcoholic drinks. It is produced naturally by fermentation of sugars by yeasts or via

petrochemical processes and it is most commonly consumed as a popular recreational drug. It also has medical applications as an antiseptic and

disinfectant. It is widely used as a chemical solvent either for scientific chemical testing or in synthesis of other organic compounds. It is a vital

substance utilized across many different kinds of manufacturing industries. So far as methyl alcohol is concerned, it is highly toxic and unfit for

human consumption. It is poisonous to the central nervous system and may result in blindness, coma and death.

In view of the chemical analysis report, since no methyl alcohol could be detected in Exhibits A & B, I am of the view that the from the available

materials on record, the ingredients of the offence under section 272 of the Indian Penal Code are not attracted. Therefore, I am inclined to accept

the prayer made by the petitioner and quash the impugned order in taking cognizance of the offence under section 272 of the Indian Penal Code.

The learned Magistrate shall proceed against the petitioner for the commission of offence under section 47(a) of the Bihar & Orissa Excise Act.

Accordingly, the CRLMC application is disposed of.