2025:CGHC:6853 HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A.No. 948 of 2001 Harish Dabara, S/o. Baximal Dabra, aged about 34 Years, R/o.M.I.G.-93/11, Nehrunagar East, P.S. Supela, District – Durg (C.G.) ---- Appellant Versus The State of Chhattisgarh, through P.S. Utai, Distt. Durg (C.G.) --- Respondent ______________________________________________________________________ For the Appellant : Dr. Shailesh Ahuja, Smt. Anju Ahuja and Shri Palash Rajani, Advocates. For State / Respondent : Ms. M. Asha, Panel Lawyer. ______________________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 06/02/2025 1. The appellant has filed this appeal under section 374 (2) of the Code of Criminal Procedure, 1973 (for short CrPC) assailing the legality, correctness and propriety of the judgment dated 01/10/2001 passed by the II Additional Sessions Judge, District – Durg (C.G.) in Session trial No. 80/2000 by which the appellant has been convicted for an offense punishable under section 49 A(1)(c) of the M.P. Excise Act, 1915 (for short “Excise Act”) and sentenced to undergo R.I. for 05 years with fine of Rs.2000/- in default of payment of fine 06 months additional R.I. was imposed on the appellant. 2. Four accused persons namely Chandrabhaan Gupta, Kamlesh Thakur, Lekhram Gond and Harish Dabra (present appellant) were put to trial. Appellant was charged for an offence punishable under section 49 A(1)(c) of Excise Act and remaining accused person were charged for an offence punishable under section 304/308 of the IPC and 49 A(1)(c) of Excise Act. ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.02.13 18:04:11 +0530 -2- 3. Prosecution case, in nutshell, is that , on 05/11/1999 some persons of Village – Ghor, which includes Baldu, Kapil, Puranik purchased Country made liquor from Parasram Sharma and they consumed it. After consumption of liquor, Baldu, Lekhram, Rambabu, Ishwari, Deenuram, Mahesh, Jageshwar, Kapil and Parasram fell ill and they were admitted in District Hospital Durg. From there Lekhram, Rambabu, Deenuram, Ishwari, Mahesh, Jageshwar and Puranik etc. were sent to Bhilai Hospital. During treatment in B.S.P. Hospital, Kapil, Baldu Ram, Paras Ram, Puranik, Karamchand have passed away. Thereafter merg intimation was recorded and merg inquiry was conducted. The Medical examination the sick persons on account of consumption of liquor was conducted. Autopsy of Baldu Ram, Kapil, Puranik, Parasram and Karamchand was conducted and postmortem report Ex.P. 22-23, Ex.P. 24-25, Ex.P. 34-35, Ex.P. 36-37 and Ex.P. 38-39 was given. In the postmortem report cause of death was opined to be uncertain. Viscera was preserved and was sent for chemical examination to the Forensic Science Laboratory. 4. During the course of investigation accused Chandrabhaan was taken into custody who informed that he purchased spirit from the shop of shankar paint and jericane from another shop and by mixing burned sugar, essence and water prepared the liquor. He further informed that 250 ML spirit is kept in the jericane, steel bowl and steel drum was kept by him. The articles were seized at his instance. 100ML liquor like substance was seized from the accused – Kamlesh. Liquor like solution of 35 litrs., 20 litrs. and 5 litrs. were seized from two jericane respectively from the shop of Harish Chabbra from which two sample of 150 ML were taken out, and kept into bottle and properly sealed. Viscera and solution seized from the accused person was sent for Chemical Examination. First Information was lodged. Statement of the witnesses were record and after due investigation the charge sheet was filed against the accused persons. FSL report was received mentioning that the liquid and viscera contained a mixture of Ethyl and Methyl Alcohol. -3- 5. The appellant was charged for an offense punishable under section 49 A(1)(c) of the Excise Act who denied the charges and claimed to be tried. 6. In order to bring home the guilt of the appellant, prosecution has examined 25 witnesses and exhibited as many as 65 documents. 7. The learned trial court on analysis of material placed before it, convicted the appellant as stated above. The other accused were acquitted from the charges under sections 304 and 308 of the IPC. Accused - Lekhram was also acquitted for charge of the Excise Act. Rest of the accused persons were convicted for the charge of the Excise Act. 8. Learned Counsels appearing for the appellant vehemently argued that the learned trial court in absence of any cogent and prudent evidence against the appellant committed an error of law in convicting the appellant for the aforesaid offence. They further submit that the allegations against the appellant is that a co-accused - Chandrabhaan Gupta purchased 10 litrs. of spirit from the shop of the appellant which was used by him for preparing the polluted liquor unfit for human consumption and consumption of which resulted into the death of many persons. They further submit that the appellant was not charged for an offence under sections 304/308 of the IPC and the other co-accused persons have been acquitted from this charge, therefore, no case is made out against the appellant under section 49 A(1)(c) of the Excise Act. They further submit that the prosecution was not able to prove the fact that the alleged purchased of spirit was made from the shop owned by the appellant. They further submit that prosecution has not brought on record any documentary evidence to substantiate that the appellant is the owner the shop from where the spirit is said to have been purchased. They further submit that the recovery of 25 liters of spirit at the instance of the appellant cannot be taken into the account for sustaining the conviction of the appellant as no memorandum statement of the appellant was recorded by the Police and therefore seizure of such spirit cannot be said to be as per section 27 of the -4- Evidence Act, 1872. Apart from this, there is no evidence against the appellant except the memorandum statement of the co-accused Chandrabhaan and the witnesses to the seizure of the spirit have not supported the case of the prosecution and have been declared hostile. The learned trial court fell in error in relying upon the statement of Investigating officer (PW-24) to hold that the said spirit was seized from the shop of the appellant. This finding cannot sustain the scrutiny of the court in absence of any admissible evidence in this regard. They further go on to submit that the alleged purchased said to have been made on 02/11/1999 and as per the case of the prosecution the co-accused Chandrabhaan prepared polluted liquor unfit for human consumption on 05/11/1999 and no evidence on record that the appellant had any object or intention for preparation of such polluted liquor, consumption of which resulted into the death of the persons. Therefore, the conviction of the appellant is bad in law and the conviction of appellant may be set a side by allowing the appeal of the appellant. 9. Per contra, State Counsel opposing the same and submits that the learned trial court gave a categorically finding that the shop from where the spirit was purchased by the co-accused Chandrabhaan was of the present appellant. He submits that even if the seizure witnesses have not supported the case of the prosecution and which is a normal phenomena in the criminal trials, the learned trial court has rightly relied upon the statement of Investigating Officer (PW-24) to sustain conviction of the appellant. He further submits that the appellant failed to prove that the shop from where the purchased was made and the seizure was effected does not belong to the appellant. In order to sustain conviction under section 49 A(1)(C) of Excise Act, possession of the spirit which has been used for preparation of the polluted liquor resulting into death is sufficient to hold the appellant guilty and which has rightly being held by the learned trial court. He further submits that the well merited finding recorded by the learned trial court does not require any inference by this court and the appeal sans merits and is -5- liable to be dismissed. 10. I have heard learned counsel for the parties, considered their rival submission and also perused the record with utmost circumspection. 11. Case of the prosecution is that some persons who were resident of Village – Ghora, consumed a country made liquor and thereafter they fell ill and were admitted to the District Hospital - Durg and thereafter for better treatment, they were admitted to BSP hospital where five people have lost their life. Investigation was set on motion and during the course of investigation the co-accused – Chandrabhaan was arrested. His memorandum statement was recorded by the Police and in which he deposed that on 02/11/199 he along with co-accused – Kamlesh had purchased 10 liters spirit from the shop of Shankar Paint, Power House, Bhilai. At this strength, the Police raided the shop of the appellant and said to have recovered the spirits kept in two jericanes. From record it does not appears that any documents were seized by the Police which would show the ownership of that shop. The record also does not reflect as to whether the Investigating Officer (PW-24) made any effort to procure documents with regard to ownership of the shop. The statement of the Investigating Officer (PW-24) also discloses that he believed the shop to be of the present appellant on saying of the appellant only. He categorically admitted that he has not interrogated the present appellant and he has not made any effort to find out the owner of shop shankar paints. In this context one witness namely Bhakar Rao who allegedly accompanied the co-accused Chandrabhaan who purchased the liquor has been examined and he has totally denied and discarded the prosecution story. The case of the prosecution was based on the fact that the Chandrabhaan and co-accused – Kamlesh went to purchase the spirit which was used in preparation of polluted liquor whereas the other witness - Bhaskar Rao have totally discarded the case. Apart from this two witnesses of memorandum statement of co-accused Chandrabhaan and seizure of the spirit from the shop of the appellant have totally discarded the story of the prosecution. Nothing in record to suggest that the appellant was having specific -6- knowledge or intention in preparation of such polluted liquor. The learned trial court paid much emphasis on the statement of the Investigating Officer (PW-24) and simply observed that since the seizure of spirit was effected from the shop of the appellant, convicted him for the aforesaid offence. The severe is the offence, the prosecution is required to prove the offence beyond reasonable doubt with cogent and prudent evidence. The seizure memo Ex.P/29 also does not contained the nature of the appellant. Though an explanation was offered by the Investigating Officer in his statement that the appellant refused to sign on it but this fact has not been corroborated by other two witnesses as they have totally denied the execution of the said seizure memo except admitting their signature on it. 12. Considering the entire facts and circumstance, evidence available on record, particularly when it has not been prove that the shop from where the seizure of spirit was made belongs to the appellant beyond reasonable doubt and the witnesses to the seizure and the memorandum statement have not supported the case of the prosecution and the case of prosecution does not came out from shadow of doubt. In the considered opinion of this court, the prosecution was unable to prove the charge against the appellant for commission of as stated above. Therefore, this court is extending benefit of doubt to the appellant. As a result, the appellant is acquitted from all the charges and the impugned judgment is hereby set aside. Appeal thus allowed. 13. Since the appellant is reported to be on bail, his bail bond shall remain in force for a period of six months from today in view of the provision of Section 481 of BNSS, 2023. 14. The record be sent back to the trial Court along with a copy of this order for necessary compliance and information. Sd/- (Sachin Singh Rajput) Judge Ashish