1 / 9 2025:CGHC:16538 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 679 of 2012 Arjun Devangan S/o Narayan Devangan, aged about 44 years R/o Village: Bhendi Chandapara, Post and Thana: Magarlod, District: Dhamtari, C.G. Pin Code - 493663 ... Applicant Versus State of Chhattisgarh through District Magistrate Thana and Post: Dhamtari District:. Dhamtari C.G. Pin Code - 493773 , Chhattisgarh ... Respondent(s) For Applicant : Mr. Sanjeev Kumar Sahu, Advocate For State : Ms. Smita Jha, P.L. Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board 08.04.2025 1. This present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 13.09.2012 passed in Criminal Appeal No. 120/2012 by the Additional SAURABH YADAV Digitally signed by SAURABH YADAV Date: 2025.04.09 15:10:14 +0530 2 / 9 Sessions Judge, Dhamtari, (C.G.), whereby judgment dated 20.07.2012 passed by the Chief Judicial Magistrate, Dhamtari, (C.G.) in Criminal Case No. 315 of 2012 convicting the applicant under Section 34 (2) of the C.G. Excise Act, 1915 and sentencing him to undergo RI for 1 year and to pay fine amount of Rs. 50,000/- and in default of payment of fine, additional SI for 2 months, has been affirmed by the Appellate Court, however, the Appellate Court has reduced the fine amount to Rs. 25,000/- from Rs. 50,000/-. 2. Case of the prosecution, in brief, is that on 25.04.2012, Hemlal Jain (PW-7) Sub-Inspector, along with other staff, on the basis of information received from the informer that the applicant is carrying illegal liquor on the motorcycle, rushed to the spot and seized 40 country made liquor quarter bottles each 180 ml, amounting to Rs.1,760/-, which was kept in a plastic bag with Motorcycle bearing registration No. CG 04 DS 8783, in presence of the witnesses i.e. Ramhu Sahu (PW-1) and Bhikhari Ram Sahu (PW-2). The seized articles were examined by Nidhish Koshthi (PW-6), Excise Sub- Inspector. On being examined, the seized article was found to be country-made liquor. 3. After completion of investigation, charge sheet under Section 34 (2) of the C.G. Excise Act was filed before the Court of CJM, Dhamtari. The applicant abjured his guilt and pleaded innocence. So as to prove the guilt of the accused/applicant, the prosecution has 3 / 9 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, after appreciation of oral and documentary evidence, convicted the applicant under Section 34 (2) of the C.G. Excise Act and sentenced him as mentioned in para 1 of this judgment. The said judgment was challenged by the applicant in criminal appeal, however, the Appellate Court, vide judgment dated 13.09.2012 has affirmed the conviction and sentence as awarded by the trial Court while reducing the fine amount to Rs. 25,000/- from Rs. 50,000/-. Hence, this revision. 5. Learned Counsel appearing for the applicant submits that the prosecution has failed to establish its case beyond reasonable doubt. He submits that the independent witnesses in this case namely Ramhu Sahu (PW-1) and Bhikhari Ram Sahu (PW-2) have not supported the case of prosecution. He further submits that sample seal was not mentioned in the Column No.13 of Seizure Memo (Ex.P-1) and that, the prosecution has also failed to prove that the seized property was kept in safe custody. He further submits that as per Thana Malkhana Register, the alleged seized article was kept in cartoon and thereafter, it was in plastic bag, but Thana Malkhana Register (Ex.P/2-C) does not show that the alleged seized property was kept in Cardboard in sealed condition. On these premises, it is prayed that applicant be acquitted of the charge leveled against him. 4 / 9 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 Hemlal Jain (PW-7), Sub Inspector, after receiving the information on 25.04.2012 from the informer that the present applicant is carrying country-made liquor on a motorcycle for sale, he rushed to the spot along with other staff and seized 40 quarter bottles which was kept in plastic bag and one Motorcycle bearing registration No. CG 04 DS 8783 from the applicant vide Ex.P/1 (Seizure Memo) in front of two witnesses i.e. Ramhu Sahu (PW-1) and Bhikhari Ram Sahu (PW-2). Thereafter, he registered the offence under Section 34 (2) of Excise Act against the applicant and lodged FIR vide Ex.P/11. However, on the contrary, PW-1 Ramhu Sahu, who is the witness to seizure, has stated that on the date of incident, he had gone to canal after having tea and saw that the police officials were bringing the applicant and applicant was holding one plastic bag. In his cross-examination, he admitted that police officials have not caught the applicant in front of him. He further admitted that the seizure was made at 07:00 pm and the paper work was done at Kareli Police Chouki. PW-7 Hemlal Jain, admitted in his cross- examination that place of incident is ½ km away from Bade Kareli. He 5 / 9 also admitted that the all the paper work/proceedings were done at Kareli Police Station. 9. This apart, PW-2 Bhikhari Ram Sahu, who is also the witness to seizure, has stated that the time of incident was 5:15 pm and he was having tea in Kashi Hotel and has seen the liquor in the bag. However, in his cross-examination, he admitted that time of incident was 5:00 pm and at that time, he was having tea with PW-1 Ramhu Sahu. He further admitted that Sub-Inspector, Hemlal Jain (PW-7) has not served him any notice and the seizure proceedings took place at Nagar Nala Bade Kareli. He also admitted that the outpost in-charge had brought the accused in the vehicle and made the seizure in front of him. That apart, PW-7 Hemlal Jain has admitted that he reached the spot at 7:30 pm. 10. Thus, from perusal of the above evidence, it appears that there are material contradictions and omissions in the statements of PW-1 Ramhu Sahu, PW-2 Bikhari Ram and PW-7 Hemlal Jain and their statements do not corroborate with each other. Furthermore, PW-1 Ramhu Sahu has stated that seizure was made at 7:00 pm, but seizure memo (Ex.P-1) and contents of FIR (Ex.P-3) show that the seizure was made at 8:00 pm, making the prosecution case doubtful. Besides. PW-3 Bhojlal Dhruv, Police Constable, who accompanied the Sub-Inspector Hemlal Jain (PW-7) also admitted in his cross- examination that all the seizure proceedings were done at the Police 6 / 9 Chauki itself and the entire investigation was done by Hemlal Jain (PW-7) in the police station. Moreover, PW-4 Radheraman Pandey, Head Constable has stated that seized 40 quarter bottles of country-made liquor and motorcycle were deposited in Thana Malkhana and the copy of the same is Ex.P/2-C. However, in the Malkhana Panji (Ex.P/2-C shows that there is no mention that the said seized articles were in a sealed condition kept in Malkhana. However, PW-6 Nidhish Koshti (Excise Sub-Inspector) has stated that on 30.04.2012, he has received the seized country-made liquor in a cardboard cartoon and examined 4 quarters bottles of liquor and after examining the same, it was returned in the same cartoon to Bhojlal Dhruv (PW-3), but in Thana Malkhana Register (Ex.P/2 (c), it is not mentioned that the seized articles were not kept in cardboard in sealed condition, meaning thereby the seized property was not kept in a proper manner and in safe custody which is in contravention of the provisions contained in Section 57- A of the Excise Act which reads as under: “57A. Police to take charge of articles seized. - An officer in charge of a police station shall take charge of and keep in safe custody pending the orders of a Magistrate or an Excise Officer, all articles seized under this Act which may be delivered to him, and shall allow any Excise Officer who may accompany such articles to the police station, or who may be depted for the purpose by his superior officer, to affix his seal to such articles and to take samples of and from them. All samples so taken shall also be sealed with the seal of the officer in charge of the police station.” 7 / 9 11. Moreover, the statements of PW-7 Hemlal Jain has not been supported by the seizure/independent witnesses i.e. Ramhu Sahu (PW-1) and Bhikhari Ram Sahu (PW-2). Further, it has not been proved that the seizure proceedings were conducted on the spot as stated by PW-3 Bhojlal Dhruv (Constable) and that the seizure memo (Ex.P-1) also shows that there was no sample seal affixed on it. 12. In the matter of Suresh Kumar vs. State of Chhattisgarh reported in 2006 (3) CGLJ 259, this Court 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: (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 8 / 9 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 there are material inconsistencies in the statements of prosecution witnesses and their evidence do not corroborate with each other and that the prosecution has failed to produce any cogent and clinching evidence which would show the complicity of the applicant in the crime-in-question and also failed to prove its case beyond reasonable doubt. Therefore, 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 by giving him benefit of doubt. Fine if paid, shall be refunded to the applicant. 9 / 9 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 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 Saurabh