1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Revision No.471 of 2016 Ajay Kumar Ratre, S/o Rohit Kumar Ratre, aged about 30 years, r/o Indira Atmanagar, Telibandha, Police Station – Telibandha, District Raipur (C.G.) ---- Applicant Versus State of Chhattisgarh through District Magistrate, Raipur, Distt. Raipur (C.G.) ---- Non-applicant For Applicant : Smt. Indira Tripathi, Advocate. For State/Respondent : Shri Ram Narayan Sahu, Dy. Govt. Advocate. Hon'ble Shri Justice Radhakishan Agrawal Order on Board 29.01.2026 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 07.05.2016 passed in Criminal Appeal No.245/2015 by the Special Judge (C.B.I), Raipur (C.G.), whereby the appellate Court partly allowed the appeal and while maintaining the conviction under Section 34(2) of the Chhattisgarh Excise Act, 1915, has reduced the sentence to RI for one year from RI for two years keeping intact the fine sentence of Rs.50,000/- and default sentence of additional RI for 4 months as passed by the Additional Chief Judicial Magistrate, Raipur (C.G.) in its judgment dated 23.11.2015 in Criminal Case No.4584/2015. 2. Case of the prosecution, in brief, is that on 13.02.2015, P.W.2 D.S.Dehari, Police Inspector, Police Station Puranibasti received the information that two persons were travelling in a suspicion condition in Nano Car No.C.G.04-HD- 5735 and based on such information, he along with other Police Officials rushed to the spot, i.e., Bhatgaon and stopped the said Car going towards Digitally signed by ALLENA ANJANI KUMAR Date: 2026.01.30 16:36:26 +0530 2 Bhatgaon chowk and one person who was sitting behind the driver fled away but he caught the other person sitting in the driver seat. Thereafter, the person seated in the driver seat disclosed his name to be Ajay Kumar and after completing formalities and taking possession of the Car, found 14 packets of Goa whisky, each packet contains 48 quarters, which were seized vide Ex.P.3 from the applicant – Ajay Ratre and came to the Police Station Purani Basti, registered the offence under Section 34 (2) of the Excise Act under the Crime No.30/2015 and F.I.R. vide Ex.P.8 was lodged and out of the seized property, 4 quarters bottle were examined by the Excise Sub- Inspector Rajesh Sharma, who found it to be liquor of special whisky. 3. After completion of investigation, charge sheet under Section 34 (2) was filed before the Court of ACJM, Raipur. 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 (2) and sentenced him to RI for two years with fine of Rs.50,000/- and in default thereof, additional RI for 4 months. The said judgment was modified by the Appellate Court, vide judgment dated 07.05.2016, 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. She further submits that in the seizure memo (Ex.P-3) dated 13.02.2015 at about 20:10 0’ clock, the Crime No.30/2015 is mentioned at Column No.1, but the prosecution has failed to explain as to how the Crime No.30/2015 has been mentioned in the seizure memo before lodging of the FIR (Ex.P-8) at about 20:05 O’clock. It is also submitted by her that the seizure memo also does not bear any sample 3 seal. The prosecution witnesses have also not supported the case of prosecution. She also submits that the alleged liquor was seized on 13.02.2015 but it was sent to Excise Sub-Inspector Rajesh Sharma (PW-03) for examination on 27.03.2015 and the prosecution has failed to offer any explanation for the delay in sending the same for examination. She further contends that the prosecution has not produced any evidence to show that where the seized property was kept in safe custody and no Malkhana register has also been produced to show that the seized property was kept in Malkhana in safe custody. 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 her arguments, she placed 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.2 Dhanmant Sai, Police Inspector, during patrolling on 13.02.2015, he got information that one Nano Car bearing registration No.CG-04-HD-5735 two persons were travelling towards Raipur in a suspicious condition. Then, he along with witnesses Harjeet Singh and Paramjit Singh went to Bhatgaon chowk where he stopped the said vehicle and one person sitting besides driver fled away and another person sitting in the driver seat was caught by him and on enquiry, he disclosed his name to be Ajay Ratre and thereafter upon checking the vehicle, he found Goa whisky in 14 packets, each packet contained 48 quarter bottles, totalling 672 quarter bottles and he seized the illegal liquor vide Ex.P.3. Thereafter, he brought the accused to the Police Station Purani Basti and registered F.I.R. vide 4 Ex.P.8 for the offence punishable under Section 34 (2) of the Excise Act against the applicant under Crime No.30/2015. P.W.1 Harjeet Singh (wrongly mentioned as Ajeet Singh in deposition sheet), who is cited as witness to seizure memo, has stated that he was having transport business in Hirapur and 4 – 5 months ago, he and his friend Paramjit Singh stopped near Bhatgaon Chowk after seeing the crowd and saw the Police action there and he was asked to sign some documents after showing him 14 packets of liquor which was brought by the accused and later on, although this witness was declared hostile witness, but on a leading question put by the prosecution he admitted in cross-examination in para 8 that as soon as they reached the Bhatgaon Chowk, there was crowd of 10 – 12 people and thereafter the crowd was gathering. If the statements of P.W.1 Harjeet Singh and P.W.2 Dhanmant Sai are examined together, then it reveals that statement of P.W.2 Dhanmant Sai has not been properly corroborated by the statement P.W.1 Harjeet Singh as P.W.2 Dhanmant Sai has stated that during patrolling he reached the spot along with witnesses Harjeet Singh and Paramjit Singh. 9. Paramjit Singh, another witness to seizure memo (Ex.P.3), has not been examined by the prosecution for the reasons best known to it. P.W.2 Dhanmant Sai further admitted that proceedings held at the site of the occurrence would be registered at zero. If his admission is taken as it is, then how this witness mentioned the Crime No.30/2015 in seizure memo during alleged seizure proceedings and the prosecution has failed to explain as to how such crime number was mentioned in the seizure memo before lodging of the F.I.R. (Ex.P.8). Therefore, the conduct of the alleged seizure proceedings is suspicious. Further, the seizure memo (Ex.P.3) could not bear any sample seal. Moreover, P.W.2 Dhanmant Sai himself admitted in cross- examination that he could not state on which date, the seized liquor was sent to examination, it was sent for a month and half after the incident and during 5 that time, he kept the seized liquor in Thana Malkhana and for that he did not produce any document and that, he did not send the all seized articles for its examination. 10. Seizure memo (Ex.P-3) also does not transpire that after seizure of liquor, no seal was affixed and that where was the seized liquor kept in safe custody. Ex.P.3 seizure memo shows the signatures of the witnesses, but as per Column Nos. 12 & 13, there was no sample seal affixed and it was also not proved by the prosecution that signature of the witnesses has been obtained only after the seized article is sealed and if the seized article could have been sealed, then sample seal would have certainly been there but in Column No.13, there was no sample seal affixed. 11. As per the case of prosecution, alleged liquor was seized on 13.02.2015 but it was sent to Excise Sub-Inspector Rajesh Sharma (PW-03) for examination on 27.03.2015 i.e. about one and half month delay occurred. The prosecution has not offered any explanation for the delay about one and half month caused in sending the seized article for examination nor has produced any evidence to show that where the seized property was kept in safe custody and that no Malkhana register has also been produced to show that the seized property was kept in Malkhana 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. 12. 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 6 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: (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. (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. 12. In the result, the revision is allowed. The 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.” 13. 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 7 applicant under Section 34 (2) of the C.G. Excise Act and the sentence awarded thereunder is hereby set aside and the applicant is acquitted of the aforesaid charge. Fine if paid, shall be refunded to the applicant. 14. 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 481 of B.N.S.S. 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