1 2025:CGHC:16596 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 752 of 2016 Lavkumar @ Bablu S/o Ramsharan Aged About 22 Years At Present Aged About 24 Years R/o Village Purainbandh, Ganjhutoli, Police Station Tapkara, District Jashpur Chhattisgarh , ... Applicant versus State Of Chhattisgarh Through - District Magistrate, Jashpur, District Jashpur Chhattisgarh , ... Non-applicant For Applicant : Smt. Madhunisha Singh, Adviocate. For Respondent/State : Shri Deepak Kumar Singh, Panel Lawyer. (HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL) Order on Board 08/04/2025 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 21.07.2016 passed in Criminal Appeal No.15/2014 by the Court of Additional Judge to the Court Additional Sessions Judge, Kunkuri, Dist. Jashpur (C.G.), whereby the appeal filed by the applicant is dismissed while upholding judgment dated 29.01.2014 passed by Judicial Magistrate First Class, Kunkuri in Criminal Case No. 390/2013 convicting the applicant under Section 34 (1) (f) of the Chhattisgarh Excise Act, 1915 and sentencing him to undergo R.I. for six months with fine of Rs.10,000/-, in default to pay fine amount, additional RI for two months. Digitally signed by ANJANI KUMAR ALLENA Date: 2025.04.09 15:42:37 +0530 2 2. Case of the prosecution, in brief, is that on 21.04.2013, when P.W.1 Dhanesh Bharti, Excise Sub-Inspector was on patrolling, he received an information from informer that the applicant is involved in making liquor and upon such information he rushed to the house of the applicant situate at village Puraibandh Gunjtoli and in pursuance of search, he seized vide Ex.P.1, an earthen pot containing 15 kilograms of Mahua Lahan (Mahua Flower or Mahua Flower based intoxicating drink), in front of the witnesses and the alleged seized Mahua Lahan has been destroyed by him after taking sample. During course of investigation, complaint No.10/13 for the offence under Section 34(1)(f) of the C.G.Excise Act was filed against the accused/applicant by the Excise Circle, Kunkuri. 3. After completion of investigation, complaint case was filed before the J.M.F.C. Kunkuri. 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 3 witnesses. Statement of the accused/applicant was also recorded under Section 313 of Cr.P.C. 4. Learned trial Court as well as 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 P.W.1 Dhanesh Bharti, Excise Sub-Inspector has not complied with the provisions containing in Section 54 of the Excise Act and that his statement has not been corroborated by the independent witnesses, i.e., P.W.2 Koushilya and P.W.3 Tilakmani. She further contends that sample taken from the spot has not been kept in safe custody and the seized Mahua Lahan has been destroyed by P.W.1 Dhanesh Bharti on the spot. This apart, the alleged sample which has been taken has not been produced before the Court and that, it was not sealed and examined by expert. She next submits that test report (Ex.P.4) is undated and that both independent witnesses, i.e., P.W.2 Koushilya and P.W.3 Tilakmani are rustic villagers and illiterate persons and more so, the prosecution has failed to prove its case beyond reasonable doubt. On these 3 premises, she urged that applicant be acquitted of the charge levelled against him. 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.1 Dhanesh Bharti, Excise Sub-Inspector, on 21.04.2013, at village Puraibandh Gunjhtoli, a search was effected at the house of the applicant and seized 15 kilograns of Mahua Lahan which was kept in an earthen pot and on the same date he examined the seized Mahua and prepared seizure memo (Ex.P.1), Search Panchnama (Ex.P.2), a test report vide (Ex.P.4), and spot map (Ex.P.5). It is also admitted by him in his cross-examination that he did not have any degree qualification to examine the alcohol. P.W.2 Koushilya and P.W.3 Tilakmani, who are stated to be independent witnesses, have stated that Mahua Lahan and 10 litres of liquor was seized by the Excise Police. In their cross- examination, they have further stated that they do not know how to read but can somehow write their name. It is further admitted by them that Excise Police did not read out the things and asked them to make signatures and since they could not know how to read and write, therefore, they could not read anything and signed wherever the Excise Police asked them to sign. A bare perusal of above evidence would show that P.W.1 Dhanesh Bharti has stated that he seized 15 kilograms Mahua Lahan whereas independent witnesses have stated that Mahua Lahan has been seized, but how much quantity of alleged Mahua Lahan was seized from the possession of the applicant is not clear whereas, as per the prosecution case, there was seizure of 10 liters of liquor. This apart, if P.W.1 does not have any qualification to examine the alcohol, then how could he recognise that the seized liquor was that of alcohol substance. Moreover, the independent witnesses have not fully corroborated the statement of P.W.1. Further, after taking the alleged samples, it was destroyed on the spot by P.W.1 Dhanesh Bharti. 4 9. There is no evidence on record to show where was the alleged sample kept and whether the seized sample was sealed properly and that, there is no such document which shows that the sample article was kept in safe custody. More so, the seized sample has not been tested and has also not been produced before the Court. Besides above, provisions of Section 54 of the Excise Act have not been complied with. Section 54 of the Excise Act is reproduced herein under: “54. Power to search without a warrant.-- Whenever any Excise Officer not below such rank as the State Government may, by notification, prescribe, has reason to believe that an offence under Section 34, Section 35, Section 36, Section 36-A, Section 36-B, Section 36-C, Section 37, Section 38-A, Section 39 or Section 40 has been, is being or is likely to be, committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence he may after recording the grounds of his belief,-- (a) at any time, by day or night, enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act ; and (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.“ 10. A bare perusal of above provision would show that before effecting search, without warrant, the Excise Officer shall record the grounds of his belief regarding search and seizure, as stated above. However, in this case, P.W.1 Dhanesh Bharti did not do so nor the seized article has been sealed properly, inasmuch as, the test report (Ex.P.4) does not bear any date to show that on which date the seized liquid was examined by P.W.1. Moreover, 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. 11. Since the independent witnesses have not duly corroborated the evidence of P.W.1 and that provisions of Section 54 of the Excise Act have not been complied with in this case, therefore, it can be held that the prosecution has utterly failed to prove its case beyond reasonable doubt and I hold as such. 12. For the foregoing discussions, the revision is allowed and the impugned judgments of both the learned Courts are set aside and the applicant is acquitted of 5 the charge levelled against him. 13. 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