Mst. Kelki vs The State of Rajasthan

N.K. Jain, J.—This revision petition is directed against the order of Addl. Sessions Judge, Nagaur dated 2.7.83 whereby while maintaining the conviction u/s 4(2) of the Rajasthan Prohibition Act passed by learned Judicial Magistrate Nagaur, reduced the sentence of imprisonment from one year to six months S.I. and also reduced fine from Rs.500/- to Rs.200/- and in default of payment of fine to undergo further one month S.I.

Brief facts giving rise to this petition are that PW 1 Chiman Ram Excise Inspector, recovered 6 bottles vide Ex.2 from the house of the petitioner. The sample was sent to Jaipur for chemical examination vide Ex.P-5 and on the basis of the report Ex.P-6 a challan Under Sections 4(1)(e) and 4(2) of the Rajasthan Prohibition Act, was tiled. After due investigation and conclusion of trial, the learned Magistrate found the offence well established against petitioner and sentenced him as mentioned above. On appeal, the same was dismissed by the order of learned Addl. Sessions Judge, dated 2.7.81. Hence this petition.

Mr. Doongar Singh, learned Counsel for the petitioner has submitted that there is no evidence that the sample remained intact throughout and no specific question was asked from the accused regarding chemical report and placed reliance on Sharad Birdhichand Sarda Vs. State of Maharashtra, and Mahmood Vs. State of U.P.,

Mr. V.S. Choudhary, learned Public Prosecutor has opposed the petition but could not controvert the facts.

I have heard Mr. Doongar Singh, learned Counsel for the petitioner and Mr. V.S. Choudhary, learned Public Prosecutor. It is the duty of the prosecution to prove that the samples remained intact from the date of seizure till it has reached, to chemical examiner and it was not tempered. In the instant case PW 1 Chiman Ram has stated that he has recovered 6 bottles of liquor on 19.4.78 and seized articles were kept in Malkhana and the key remained with him and the goods were taken out in his presence. He has also stated that he himself has taken the sample to Jaipur vide forwading letter Ex. P. 5 on 20.4.79 and report is Ex. P. 6. He has not stated that the seal remained intact and the two motbirs in whose presence bottles were recovered and samples were taken have not supported the prosecution case and were declared hostile. In this case PW 1 Chiman Ram has taken sample and kept under his supervision and seal was also with him, so the possibility of tempering cannot over-ruled, without proving the fact that it remained intact from the date of seizure till it has reached chemical examiner and not tempered. In view of Mahmood v. State of U.P. (supra) a possibility has not been positively excluded by the prosecution.

Admittedly, PW 1 Chiman Ram has sealed the sample which thereafter remained with him throughout and no other material was prduced. Thus it was all the more necessary to prove the fact that it was not tempered and the seals remained intact. Therefore the conviction of the accused cannot be maintained, even if sample was found with alcohol.

It is also evident that no question has been put to accused in the statement u/s 313 regarding report of the chemical examination. The very purpose of Section 313 Cr. PC is to put the circumstances against the accused so that he may meet out the prosecution case and explain the circumstances brought by the prosecution to implicate him in the commission of the crime.

In Sharad Birdhichand Sarda Vs. State of Maharashtra, it has been observed that the circumstances which were not put to the accused in examination u/s 313 have to be completely excluded from consideration, the opinion of the chemical examination is an important circumstances in the case of this type and such circumstances not even brought and not put to the accused and the court taking help of the report without putting question to the accused in that record and affording him opportunity to him to explain is a vital infirmity.

In the instant case no question has been put to the accused. Thus, conviction cannot be maintained on this count also.

Under these circumstances, the conviction of the petitioner u/s 4(2) of the Rajasthan Prohibition Act deserves to be quashed. The orders passed by learned lower courts deserve to be set aside.

In the result, this petition is allowed. The conviction of the accused u/s 4(2) of the Act is quashed and she is acquitted. The orders passed by courts below are set aside. The accused Kelki is already on bail so she need not surrender and her bail bonds are discharged.