YOGESH KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal under Section 374 (2) Cr. P.C., has been preferred by appellant Yogesh Kumar against the judgment and order dated 09.08.2005 passed by IV Additional Sessions Judge, Pratapgarh, Court No. 8 in S.T. No. 239/2004 under Section 60 of the Excise Act and Sections 272, 273 I.P.C., P.S. Antu, district Pratapgarh, by which appellant Yogesh Kumar has been convicted for the offence under Section 60 of the Excise Act and sentenced for a period of two years rigorous imprisonment and a fine of Rs. 5,000/ -. In default of payment of fine further imprisonment for a period of six months.

(2.) BRIEF facts of the case are that on 09.09.2003 Station Officer, P.S. Antu Manoj Kumar Pandey along with police force were patrolling and when they reached Chandrikan Bazaar, they met Head Constable R. P. Singh along with other 'sipoys' who informed them that two persons had unloaded a truck of unauthorized liquor in Chandrikan Jungle and the same was being loaded on Tata Sumo and being carried away. On this information, the police party reached Chandrikan Jungle and found one truck and one white coloured Tata Sumo and few persons were unloading the truck and loading Tata Sumo. On seeing the police personnel, accused persons fled away, one person was arrested on the spot at about 8 p.m., on being asked, he told his name as Yogesh Kumar (the present appellant). The truck bearing no. MKW 7558 was searched and total 20 gunny bags having 4000 pouches of liquor was recovered. The Tata Sumo was bearing no. DL3C7 -2613. Appellant Yogesh Kumar on questioned informed that the truck was loaded at Kanpur and unauthorized banned liquor made in Patiala and to increase its intoxication, poisonous contents were added to it by Sant Bux Singh and his sons Dinesh, Ramesh, Rinku and Radhey Shyam and sold by them. On demand of licence, the appellant could not furnish the same. The appellant was arrested after being informed of his arrest; out of recovered pouches, 10 pouches of liquor was separated as sample. The bags were sealed, the sample pouches were also sealed, recovery memo was prepared at the spot, in pursuance thereof, loaded truck and Tata Sumo were taken into custody under Section 72 of Excise Act. No independent witness was available though efforts were made.

(3.) THE F.I.R. of the incident was lodged on 09.09.2003 at 9.25 in the night. The case was investigated. Accoridng to the test report the recovered liquor was "red special desi masaledar" liquor; according to the report of Vidhi Vigyan Prayogsala, Lucknow dated 10.12.2003, chemical poison was found and the percentage of alcohol was 27.2, 27.1, 27.3, 27.3 and 26.8. The second report of Vidhi Vigyan Prayogsala, Lucknow dated 09.09.2004 indicated that a ethyl alcohol was found in the recovered liquor.