Mahasamund, Chhattisgarh v. State Of Chhattisgarh Through
Case Details
1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 536 of 2016 Digitally signed by ANJANI KUMAR ALLENA Date: 2025.02.21 16:42:09 +0530 Nandiram Bhoi S/o Nathuram Bhoi Aged About 60 Years R/o Khairadera, P.S. And Tahsil - Bagbahara, District – Mahasamund, Chhattisgarh ... Applicant versus State Of Chhattisgarh Through - Collector Mahasamund District - Mahasamund Chhattisgarh ... Non-applicant
Legal Reasoning
11. Dealing with the issue, this Court in the matter of Suresh Kumar (supra) has observed as under: It is pertinent to note from the order sheet dated 01-10-2004 “10. 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 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: There is total non-compliance of Section-- of the Act (A) by Excise Sub Inspector K.L. Taram PW-2 which vitiates the prosecution. It is not established beyond doubt that the Applicant (B) 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. (D) Independent witness Ishwar Prasad 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 conviction of the 12. 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.” 5 12. 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 beyond reasonable doubt and the conviction of the applicant under Section 34 (1) 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 (1) of the C.G. Excise Act and the sentence awarded thereunder is hereby set aside and the applicant is acquitted of the aforesaid charge by giving him benefit of doubt. Fine if paid, shall be refunded to the applicant. 13. 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/- (Radhakishan Agrawal) JUDGE Anjani
Arguments
For PetitionerApplicant : Shri Bhuneshwar Singh Rajput, Advocate appointed through Legal Services Authority. For Non-applicant : Shri R.N.Pusty, Government Advocate. (HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL) Order on Board 21/02/2025 Heard. 1. The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 09.06.2016 passed in Criminal Appeal No.47/2016 by the 1st Additional Sessions Judge, Mahasamund (C.G.), whereby the appeal filed by the applicant is partly allowed convicting the applicant under Section 34 (1) of the Chhattisgarh Excise Act, 1915 and sentencing him to undergo R.I. for three months with fine of Rs.5,000/-, in default to pay fine amount, to further undergo RI for one month. 2. Case of the prosecution, in brief, is that on 13.08.2015, when the Yogeshwar Kumar Verma (P.W.4) of Police Station Baghbahra along with Constables No.388 and 318 was on patrolling duty, at that time, he received information from informer that the applicant is involving in selling Mahua liquor illegally made in his badi at village Khairadera. On receipt of such information, he rushed to the spot along with 2 witnesses Rashid Khan and Manrakhan and saw the applicant selling liquor, then P.W.4 Yogeshwar Verma raided the house and served notice (Ex.P.8) under Section 91 Cr.P.C. to the applicant, thereupon the applicant could not produce any illegal documents. Thereafter, P.W.4 Yogeshwar Verma seized the jerrycan containing 3.5 liters of liquor vide vide Ex.P.1. The seized article was sent for chemical examination and upon examination, vide Ex.P.8 it was found to be hand-made liquor. 3. After completion of investigation, charge sheet under Section 34 (A) was filed before the Chief Judicial Magistrate, Mahasamund. 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 4 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 under Section 34(a) of the Excise Act and sentenced and sentenced him to RI for one year with fine of Rs.10,000/- and in default to pay such fine, he shall suffer additional RI for one month. The said judgment was appealed in Appellate Court and the Appellate Court modified the said judgment as mentioned in opening paragraph. 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 in the seizure memo (Ex.P.1), the alleged liquor was said to be seized on 13.08.2015 whereas the seized alleged liquor was sent for examination on 10.10.2015, thus there was delay of about 2 months, however, the prosecution has failed to explain as to how such delay of more than two months has occurred nor the prosecution was able to show as to where the seized article was kept in safe custody after seizure proceedings are completed by it. It is also submitted by him, no Malkhana register was produced before the Court nor any person, who kept the seized article, has not been examined by the prosecution. He also contends that there is no evidence on record to show that liquor was seized on the spot. Learned counsel for the applicant has also pressed this revision on additional ground of non-compliance 3 of Section 57 (a) of the Excise Act, which vitiates the prosecution case. In support of his arguments, he placed his reliance upon a decision rendered in the matter of Suresh Kumar vs. State of Chhattisgarh reported in 2006 (3) CGLJ 259. 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 P.W.4, Yogeshwar Verma, on 13.08.2015 when he along with Constables No.388 and 318 was on patrolling duty, at that time, he received information from informer that the applicant is involving in selling Mahua liquor illegally made in his badi at village Khairadera. On receipt of such information, he rushed to the spot along with witnesses Rashid Khan and Manrakhan, thereafter, 3.500 liters of liquor, kept in a jerrycan was seized by him from the possession of the applicant in front of witnesses vide seizure memo Ex.P-1. However, on the contrary, independent witnesses, namely Rashid Khan (P.W.1) and Manrakhan (P.W.2) admitted in their depositions that their signatures have been obtained in blank papers but before them no liquor was seized from any person. Thus, it is clear from the above evidence that P.W.1 and P.W.2 Rashid Khan and Manrakhan that they did not support the prosecution story. 9. There is no evidence on record to show where was the alleged seized article kept and whether it was kept in safe custody and whether the seized article was sealed properly. The seized article was also not produced before the Court. Moreover, as per evidence of P.W.3 Ramesh Agrawal, Excise Sub-Inspector, he received the seized article on 10.10.2015 through Constable No.293 Raghunandan for its examination, thus, it took about 2 months delay in sending the articles for examination and the prosecution has not been able to offer any explanation as to why delay of about 2 months occurred in sending the seized article for examination nor the said Constable No.293 Raghunandan has been examined. Further, the sample seal was not mentioned in examination report Ex.P.8. 4 10. 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. The prosecution has also not been able to show the exact place from where the liquor was seized. This apart, the provisions of Section 57 (a) of the Excise Act have also not been complied with by the prosecution.