High Court of Chhattisgarh
Case Details
1 2025:CGHC:17574 NAFR PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2025.04.17 16:04:07 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Revision No. 698 of 2012 • Premnarayan S/o Channuram Dahre, aged about 21 years, R/o Village Donar, PS Arjuni, Tah. and Distt. Dhamtari, Chhattisgarh, ... Applicant Versus • State of Chhattisgarh Through District Magistrate Dhamtari, P.S. - Arjuni, Distt. Dhamtari, Chhattisgarh, ... Respondent For Applicant : Mr. Sunil Sahu, Advocate For State/Respondent
Legal Reasoning
15. Dealing with the issue, this Court in the matter of Suresh Kumar (supra) has observed as under: “10. It is pertinent to note from the order sheet dated 01-10-2004 written by the trial Judge that the seized property was not produced before the Court. No reason has been signed by the Excise Sub Inspector Shri K.L. Taram PW-2 for not depositing the Jerrican containing 30 liters of country made liquor with the Officer in charge of the concerned Police Station or to take any samples there from and to seal it. There is nothing on record to show as to where and in whose custody the 30 bulk liters of country made liquor was kept till filing of challan on 01-10-2004. There is also nothing to show that Excise Sub Inspector Shri K.L. Taram PW-2 had, within 24 hours after making the seizure made a full report of all the particulars of arrest, seizure or search to his 8 immediate official superior as required under Section - 57 of the Act. Thus, there is total non-compliance of Section-- of the Act. 11. Having thus considered the evidence led by the prosecution, the following points emerge: (A) There is total non-compliance of Section-- of the Act by Excise Sub Inspector K.L. Taram PW-2 which vitiates the prosecution. (B) It is not established beyond doubt that the Applicant was found in possession of country made liquor in excess of 25 bulk liters. (C ) Testimony of Shri K.L. Taram PW-2 is rendered doubtful since he did not produce the intoxicant alleged to have been seized from the Applicant in the trial Court. Independent witness Ishwar Prasad (D) PW-1 and Neeraj Shrivastava PW-3 did not corroborate the testimony of Excise Sub Inspector K.L. Taram PW-2 relating to seizure and test performed upon the intoxicant alleged to have been seized from the possession of the Applicant. In the result, the revision is allowed. The 12. conviction of the Appellant under Section-34(1)(a) of Chhattisgarh Excise Act, 1915 and the sentence awarded there under are set aside. The Applicant is acquitted. Fine if paid, shall be refunded to the Applicant.” 16. By applying the decision to the facts of the present case, this Court is of the opinion that the prosecution has failed to prove its case and the conviction of the applicant under Section 34 (2) of the C.G. Excise Act and the sentence awarded thereunder being contrary to the law is liable to be set aside in exercise of revisional jurisdiction and accordingly, the conviction of the applicant under Section 34 (2) of the C.G. Excise Act and the sentence awarded thereunder is hereby set 9 aside and the applicant is acquitted of the aforesaid charge. Fine if paid, shall be refunded to the applicant. 17. Consequently, the revision is allowed. The applicant is reported to be on bail and his bail bond shall remain in force for a period of six months from today in view of provision of Section 437-A of Cr.P.C. Records of both the Courts be sent back to the concerned Courts along with a copy of this order forthwith for information and necessary compliance. Sd/- Judge (Radhakishan Agrawal) Prakash
Arguments
: Ms. Smita Jha, Panel Lawyer Hon'ble Shri Justice Radhakishan Agrawal Order on Board 16/04/2025 1. The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 18.10.2012 passed in Criminal Appeal No.152/2012 by the Additional Sessions Judge, Dhamtari, (C.G.), arising out of judgment dated 27.09.2012 passed by the Chief Judicial Magistrate, Dhamtari (C.G.) in Criminal Case No.559/2012 wherein the present applicant and co- accused Ashwini have been convicted under Section 34(2) of the Chhattisgarh Excise Act, 1915 and sentenced to undergo RI for one 2 year and to pay fine amount of Rs.50,000/- each, and in default thereof, additional SI for 60 days each. The learned Appellate Court while allowing the appeal in part confirmed the conviction and jail sentence of the applicant, however, reduced the fine amount from Rs.50,000/- to Rs.25,000/-, and in default thereof, additional SI for two months. 2. Case of the prosecution, in brief, is that on 12.06.2012, Ramesh Sahu (PW-07), Assistant Sub-Inspector, Police Station Arjuni along with other Police Officials had gone for patrolling to village side and on the basis of information received from an informer, near Mahanadi river, the police officials stopped one motorcycle bearing registration No.CG-05- C-8540 in which the present applicant and co-accused Ashwini were sitting. Upon search, they were jointly found in possession of total 18 liters of country made liquor (50 bottles of plain liquor and 50 bottles of masala liquor each 180 ml) in two cartoons. After following the necessary procedure, the police registered the case for the offence punishable under Section 34(2) of Chhattisgarh Excise Act against the applicant and the co-accused person. 3. After completion of investigation, charge sheet under Section 34 (2) of the C.G. Excise Act was filed before the Court of Chief Judicial Magistrate, Dhamtari. The applicant abjured his guilt and pleaded innocence. So as to prove the guilt of the accused/applicant, the prosecution has examined as many as 8 witnesses. Statement of the accused/applicant was also recorded under Section 313 of Cr.P.C. 4. Learned trial Court, after appreciation of oral and documentary evidence, convicted the applicant and co-accused under Section 34 (2) 3 of the C.G. Excise Act and sentenced them as mentioned in para 1 of this order. The said judgment was challenged by the applicant in criminal appeal, however, the Appellate Court, vide judgment dated 18.10.2012 has confirmed the conviction and jail sentence but reduced the fine amount as stated in paragraph 1 of this order. Hence, this revision. 5. Learned Counsel appearing for the applicant submits that the prosecution has failed to establish its case beyond reasonable doubt. He further submits that there is material contradictions and omissions in the statement of the investigating officer Ramesh Sahu (PW-07) with regard to seizure, seal and safe custody of the seized articles. This apart, the statement of the investigating officer is not properly corroborated with the statement of Chhanu Lal Sahu (PW-06), Head Constable. Moreover, the independent witnesses, namely, Vijay Kumar Dhruw (PW-03) and Rajau Ram (PW-04) have not supported the case of the prosecution. Learned counsel for the applicant has also pressed this revision on additional ground of non-compliance of Section 57 (a) of the Excise Act, which vitiates the prosecution case. In support of his arguments, he placed reliance upon a decision rendered in the matter of Suresh Kumar vs. State of Chhattisgarh reported in 2006 (3) CGLJ 259. Lastly, he submits that the fine amount has already been deposited before the trial Court by the applicant. 6. On the other hand, learned State Counsel opposed the revision, while supporting the impugned judgment of conviction and order of sentence. 7. I have heard learned counsel appearing on behalf of the parties and perused the record minutely. 8. As per the statement of Investigating Officer Ramesh Sahu (PW-07), 4 Assistant Sub-Inspector, on 12.06.2012, he along with other Police Officials had gone for patrolling to village side and on the basis of information received from an informer, he reached to the spot near Mahanadi river, and stopped one motorcycle bearing registration No.CG-05-C-8540 in which the present applicant and co-accused Ashwini were transporting liquor and on being inquired, they were jointly found in possession of total 18 liters of country made liquor (50 bottles of plain liquor and 50 bottles of masala liquor each 180 ml) in two cartoons which was tied in a red coloured towel (gamchha). After following the necessary procedures, the same was seized vide seizure memo Ex.P-4. He further stated that on the said date itself, he has recorded the statements of witnesses Vijay Dhruw, Rajau Yadav, Pradeep Singh, Prahlad Banchor and, thereafter produced the seized motorcycle and the seized articles to the Malkhana Moharir. This witness, in his cross-examination, has admitted that on the date of incident, he put the seal on the liquor box after sealing it and further admitted that he had not put seal on the towel (gamcha). 9. On the other hand, Chhanu Lal Sahu (PW-06), Head Constable who was posted as Malkhana Moharir on the date of incident, in his statement has deposed that Ramesh Sahu (PW-07), Assistant Sub- Inspector presented him sealed desi plain and desi masala liquor (50- 50 bottles each) kept in two cartoons tied in a red colour towel (gamchha) and after receiving the same, he kept it safely in the Malkhana after making entries in the malkhana register. He further stated that on 18.06.2012, he sent the seized articles for examination 5 to Excise Sub-Inspector but the same was returned on the same date without examination. This witness in his cross-examination, has admitted that after seizure, the towel (gamchha) which was presented to him was sealed and therefore, he did not count it. He further admitted that the reason why the confiscated goods were returned without testing on 18.06.2012 has not been mentioned in the Malkhana register. 10. Nidhis Koshti (PW-02), Excise Sub-Inspector, has stated that on 20.06.2012, seized liquor was brought by constable No.376, namely, Gaukaran Netam in two cardboard cartoons. In his cross-examination, he admitted that he did not make any panchnama before opening the cardboard cartoons. He further admitted that he did not tested the entire liquor. He lastly admitted that the liquor which was brought in cardboard cartoon was sealed and apart from that there was no seal anywhere else. He has also not stated that the seized liquor was sent in a red coloured towel (gamchha) in a sealed condition. 11. This apart, seizure witness, namely, Vijay Kumar Dhruw (PW-03) in his statement has stated that on the date of incident, the police had caught the applicant Premnarayan and co-accused Ashwini who had kept two boxes of country made liquor. However, in his cross-examination, he admitted that the boxes were sealed and it was not opened and, therefore, he cannot say whether there was liquor inside in the box or not. 12. Another seizure witness, Rajau Ram (PW-04) in his statement deposed that on the date of incident, the police called him and told him that they have seized liquor from the accused persons and told him to put 6 signature. He further stated that there were three motorcycles on which two-two (each) boxes of liquor were kept on it. However, in cross- examination, he admitted that the police has seized three motorcycles and six boxes of liquor. He further admitted that the liquor box was sealed and it was not opened before him, and therefore, he could not say that whether there was liquor inside the box or not. 13. On careful perusal of the statements of the witnesses and documents available on record, there appears material contradictions and omissions in the statement of investigating officer Ramesh Sahu (PW- 07), Malkhana Moharir Chhunu Lal Sahu (PW-6) and Excise Sub- Inspector Nishid Koshti (PW-02) with regard to the seal affixed in the liquor box and/or towel (gamchha) and safe custody of the seized articles. The statements of these witnesses do not corroborate with each other. This apart, the seizure witnesses, namely, Vijay Kumar Dhruw (PW-03) and Rajau Ram (PW-4) have not supported the case of the prosecution and have not seen the alleged seized property and have not supported the version of the investigating officer Ramesh Sahu (PW-07). 14. As per the case of prosecution, the article was seized on 12.06.2012 but the same was sent for examination by the Excise Sub-Inspector on 20.06.2012 i.e. after 08 days of the seizure. Chhanu Lal Sahu (PW-06) Head Constable, Thana Malkhana Incharge has also stated in his examination-in-chief that he has sent the seized property for examination to Excise Sub-Inspector on 18.06.2012 but it was returned without examination. It is pertinent to mention here that the entries made in Malkhana panji i.e. Ex.P-8C do not show that the alleged 7 property was sent for examination on dated 18.06.2012. Therefore, the alleged property, without mentioning its entries in Malkhana Panji, was removed from Thana Malkhan on 18.06.2012. Further, the entry is not mentioned in Thana Malkhana Panji that the property which was sent on 18.06.2012 was again deposited in Thana Malkhana. This apart, Nidhis Koshti (PW-02), Excise Sub-Inspector has also not stated that the property which was sent to him for examination, was sealed in a red coloured towel (gamchha). The prosecution has not offered any explanation for the delay caused in sending the seized article for examination nor has produced any evidence to show that whether the seized property was kept in safe custody. It is bounden duty of the prosecution to seal the seized property and to keep the same in safe custody, but the prosecution has failed to discharge its duty. This apart, the provisions of Section 57 (a) of the Excise Act have also not been complied with by the prosecution.