1 2025:CGHC:19369 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 420 of 2011 • Jalesh Chandrawanshi, S/o Daniram Chandrawanshi, aged about 40 years, R/o Village Majgaon, P.S.-Kawardha, Distt.-Kabirdham, C.G. ...Applicant versus • State of Chhattisgarh, Through District Magistrate Kawardha, District Kabirdham, C.G. ... Non-applicant For Applicant : Ms. Indira Tripathi and Mr. Manish Kumar Sahu, Advocates. For Non-applicant : Ms. Pragya Pandey, Deputy Government Advocate. Hon'ble Shri Justice Radhakishan Agrawal Order on Board 29/04/2025 1. The present applicant has preferred this criminal revision under Section 397 read with Section 401 of Cr.P.C. against the order dated 22.07.2011 passed by the Sessions Judge, Kabirdham (Kawardha), C.G. in Criminal Appeal No.19/2010, whereby the learned Appellate Court dismissed the appeal, while affirming the judgment dated 17.05.2010 passed in Criminal Case No.142/2010 by the Chief Judicial Magistrate, Kabirdham (Kawardha), C.G. convicting the applicant under Section 34(2) of the Chhattisgarh Excise Act, 1915 (for short, 'the Act, 1915') and sentencing him to undergo rigorous imprisonment for one year and fine of Rs.30,000/-, in default thereof, AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.05.01 10:34:56 +0530 2 to undergo additional rigorous imprisonment for six months. 2. Case of the prosecution, in brief, is that on 25.01.2010, while Head Constable-Om Singh (PW-7) was on patrolling, he received a secret information from the informant that in village Majgaon, 10-15 persons captured the applicant with illegal liquor. After receiving the said information, he along with Narendra Chandravanshi, Deepak, Tarakeshwar, Jaiprakash and others went to the hotel of the applicant and seized 93 quarters country made liquor, 19 quarters Masala liquor and 48 quarters of foreign Goa whiskey in three boxes, total 144 quarters (46.80 litres) sealed bottles each containing 180-180 ml. Thereafter, present applicant was asked to produce the valid document for possessing said liquor, but he did not produce any document. After that, Dehati Nalishi (Ex.P-8) was prepared and the said liquor was seized vide Ex.P-1 and thereafter, FIR (Ex.P-10) was registered against the applicant under Section 34(2) of the Act, 1915. 3. After completion of investigation, charge sheet under Section 34(2) of the Act, 1915 was filed before the Court of Chief Judicial Magistrate, Kawardha, Dhamtari, C.G. 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 7 witnesses. Statement of the accused/applicant was also recorded under Section 313 of Cr.P.C. 4. Learned trial Court as well as the Appellate Court, after appreciation of oral and documentary evidence, convicted the applicant under Section 34(2) of the Act, 1915 and sentenced him as mentioned in para 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. 3 She further submits that independent seizure witnesses in this case have not supported the case of the prosecution. She also submits that prosecution has failed to prove that after seizure proceedings, alleged property and sample were sealed properly and kept in safe custody. She also submits that Thana Malkhana Panji has also not been produced by the prosecution to prove that the alleged property was in sealed condition. She also submits that seized liquor was not sent for chemical examination, which makes the prosecution case doubtful. On these premises, it is urged by counsel for the applicant that the present revision be allowed and the applicant be acquitted of the charge leveled against him. In support of her argument, reliance has been placed upon a decision of Supreme Court in the matter of Suresh Kumar vs. State of Chhattisgarh reported in 2006 (3) CGLJ 259. 6. On the other hand, learned State Counsel opposes the revision, while supporting the impugned judgments of conviction and order of sentence passed by the trial Court as well as Appellate Court. 7. I have heard learned counsel appearing on behalf of the parties and perused the record. 8. PW-7 Om Singh, Head Constable, has stated that while he was on patrolling, he received a secret information from the informant that in village Majgaon, 10-15 persons caught the applicant in hotel with illegal liquor. After receiving the said information, he along with other persons went to the hotel of the applicant and in presence of the witnesses, seized 93 quarters country made liquor, 19 quarters Masala liquor and 48 quarters of foreign Goa whiskey in three boxes, 4 total 144 quarters i.e. 46.80 litres sealed bottles of liquor each containing 180-180 ml vide Ex.P-1 and sealed the same at spot. In cross-examination, he admitted that he seized the liquor from hotel premises and not from the house. He further admitted that there were 8-10 boys were present along with applicant. He also admitted that there was no mention in the roznamcha sanha (Ex.P-9) with respect to seal the seized liquor. He further admitted that he did not send the seized liquor for its examination. It is further admitted by him that there was no seal of the department over sample liquor. It is also admitted by him that the place where he seized the liquor is an open place which is adjacent to road. However, on the contrary, PW-1 Deepak witness to seizure, in his cross-examination, admitted that in his presence, police personnel did not conduct any search and seal proceedings. He further admitted that he has signed the documents in police station itself where they took his photo. He also admitted that along with him, Narendra, Tarkeshwar and Jayprakash etc. also signed the documents in police station itself and he was unable to disclose the quantity of seized liquor and thus, has not supported the case of the prosecution. This apart, PW-3 Narendra Chandravanshi, another witness to seizure, has stated that police personnel seized the liquor from the shop of the applicant, but on the contrary, PW-7 Om Singh, I.O. has stated that he has seized the liquor from the hotel of the applicant. In cross-examination, he admitted that police alone entered the spot and seized the alleged liquor and thereafter, they informed him about the seizure and took his signature over the document. Besides above evidence, PW-4 Jay Prakash Chandravanshi, in 5 his cross-examination, admitted that for the raid proceedings, about 80 people including him went to the spot. He further admitted that for the first time, he saw the applicant in police station and he did not see the applicant at the spot. He also admitted that before him, no liquor was seized, therefore, he could not state about the quantity. It is also admitted by him that police personnel did not seize the liquor from the hotel. Furthermore, PW-2 A.K. Banjare, Excise Sub-Inspector, has stated that he examined the alleged seized liquor on 01.02.2010 whereas, as per seizure memo (Ex.P-1), liquor was alleged to be seized on 25.01.2010, however, it is nowhere mentioned that during that period where the alleged seized liquor was kept. 9. Thus, from perusal of above evidence, it is quite vivid that there are material inconsistencies in the statement of PW-7 Om Singh, I.O. and his statement does not corroborate with other prosecution witnesses and documents available on record with respect to seizure of alleged liquor. This apart, witnesses to seizure namely PW-1 Deepak and PW- 3 Narendra Chandravanshi have also not supported the prosecution case. Moreover, PW-7 Om Singh, I.O. has stated that he has seized the liquor from the hotel, but as per statement of PW-3 Narendra Chandravanshi police seized the liquor from the shop and not from the hotel and that the seizure witnesses have also admitted that no seizure proceedings were conducted in front of them by the police, thus, making the prosecution story doubtful. Furthermore, PW-2 A.K. Banjare has stated that he has received 4-4 quarters bottles for examination, but there is no evidence available on record to show that 4-4 quarters bottles were sent for examination. That apart, perusal of seizure memo (Ex.P-1) shows that there is no sample seal affixed on 6 it in column No.13. Had the seized property was sealed, then sample seal would definitely have been mentioned in the column No.13 of the seizure memo. Besides, the prosecution has also not offered any explanation for the delay 8 days caused in sending the seized article for its examination nor has produced any evidence to show that where the seized property was kept in safe custody and that no Thana Malkhana Panji and other documents have 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. The prosecution has also not been able to show the exact place from where the liquor was seized and that no sample seal was affixed on it. This apart, the provisions of Section 57 (a) of the Excise Act have also not been complied with by the prosecution. 10. 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 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: 7 (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.” 11. 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(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 aside and the applicant is acquitted of the aforesaid charge on the basis of benefit of doubt. Fine, if paid, shall be refunded to the applicant. 12. 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 8 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 Akhilesh