1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 778 of 2012 Juliya @ N. Surendra S/o Late Shir N. Prasad Aged About 22 Years R/o Camp-1 Sunder Nagar , P.S. Chhawani , Bhilai ,distt. Durg C.G. ... Applicant versus State Of Chhattisgarh, Through - The District Magistrate Durg, Distt. Durg C.G. ... Respondent For Applicant : Ms. Seema Verma, counsel for the applicant. For Respondent/State : Smt. Smita Jha, Panel Lawyer. (HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL) ORDER ON BOARD 16/04/2025 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 30.11.2012 passed in Criminal Appeal No.237/2012 by the 5th Additional Sessions Judge, Durg (C.G.), whereby the appeal filed by the applicant is dismissed while affirming the judgment dated 26.10.2012 passed by the Chief Judicial Magistrate, Durg, in Criminal Case no.1171/2012 convicting the applicant under Section 34 (2) of the Chhattisgarh Excise Act, 1915 and sentencing him to undergo R.I. for one year with fine of Rs.25,000/-, in default to pay fine amount, to further undergo RI for three months. 2. Case of the prosecution, in brief, is that on 21.04.2012 when B.P.Gupta (P.W.6) of Police Station Chhavni along with Constables was on patrolling duty, at Digitally signed by ANJANI KUMAR ALLENA Date: 2025.04.17 17:22:28 +0530 2 Subhash Square at 9.50 am, he received information from informer that the applicant kept liquor in huge quantity in his motorcycle Hero Honda No. CG-07/LF/4129 and was waiting for supplying the same before the B.S.P.High School. On receipt of such information, he rushed to the spot along with staff and surrounded the applicant. Thereafter, P.W.6 B.P.Gupta seized 26.280 liters of liquor and motorcycle vide vide Ex.P.1 and from every seized quarter bottles, 2 quarters each were taken out in a white plastic bag for testing and sealed at the spot and seizure memo was prepared. The seized article was sent for examination and upon examination, vide Ex.P.23 it was found to be country made liquor. 3. After completion of investigation, charge sheet under was filed before the Chief Judicial Magistrate, Durg. 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 6 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 and sentenced the applicant as mentioned in opening paragraph. Hence, this revision. 5. Learned Counsel appearing for the applicant submits that both the learned Courts have not properly appreciated the evidence on record. She further submits that independent witnesses, P.W.1 Mahendra Ramteke and P.W.2 Ravi have not supported the prosecution case. Further, as per Malkhan Panji (Ex.P.10), the alleged seized liquor was not sealed properly. It is also submitted by her that no Malkhana register was produced before the Court nor any person, who deposited the seized article, has not been examined by the prosecution. She further contends that prosecution has failed to prove the fact that after seizure of liquor, where the seized property was kept 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 3 her arguments, she 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.6 B.P.Gupta, on 21.04.2012 when he along with staff was on patrolling duty, at that time at 9.50 am, on receipt of information from informer, he rushed to the spot along with witnesses Mahendra Kumar Ramteke (P.W.1) and Ravi (P.W.2), after issuing notices to them. Thereafter, he surrounded the applicant and taken him into custody and from the possession of the applicant, total 146 quarters of country made liquor, which was kept in 3 white sacks, were seized in front of witnesses and prepared seizure memo Ex.P-1. He has further stated that from the seized liquor, he took out 2 – 2 bottles of liquor on the spot for testing and sealed the same. However, on the contrary, independent witnesses, namely Mahendra Ramteke (P.W.1) and Ravi (P.W.2) specifically admitted in their depositions that their signatures have been obtained in blank papers but before them no liquor was seized from the possession of the accused/applicant. That apart, the said two independent witnesses did not recognise the applicant in Court. Thus, it is clear from the above evidence that P.W.1 and P.W.2 Mahendra Ramteke and Ravi that they did not support the version of P.W.6 B.P.Gupta, A.S.I., thus making the prosecution story doubtful. 9. P.W.6 B.P.Gupta further admitted that there is no mention with respect to taking sample from the seized liquor and that sample has been sent for examination, in Exs. P.10 & 12, Thana Malkhan Panji & Nakal Wapsi. He further admitted that liquor recovered from the scene of incident was not sent for testing but it was sent for testing only after it being brought to the Police Station through a clerk. Although it is clear from perusal of Ex.P.10 that the alleged seized property 4 was deposited, but it does not bear any seal and that 6 sample bottles took out from alleged seized liquor was not found to be sealed. Moreover, as per evidence of P.W.4 G.P.Prajapati, Excise Sub-Inspector, 6 sample bottles were brought by Constable Krishna Kour before him for its examination and after examination, he found it to be country made liquor, however, this witness admitted that there is no mention in Ex.P.23 that whether samples of liquor brought in different bottles are sealed in proper condition or not, meaning thereby that the samples took out from the seized liquor were not properly sealed, which makes the prosecution case suspicious. 10. If the evidence of above witnesses is scanned, then it can be inferred that there is no evidence on record to show where was the alleged seized article along with sample bottles 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, samples of 6 bottles of liquor took out from total seized liquor, which were alleged to be sealed has not been mentioned in Thana Malkhana Panji Ex.P.10. 11. It is bounden duty of the prosecution to seal the seized property after taking samples 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. 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 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 5 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 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 by giving him benefit of doubt and he shall be set at liberty. Fine if paid, shall be refunded to the applicant. 6 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 Anjani