1 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Revision No. 891 of 2016 Judgment Reserved on : 01.08.2025 Judgment Delivered on :28.08.2025 Latkhor Sori S/o Mangaluram Sori, aged about 52 years, R/o Village Kungera, Police Station Sihava, District Dhamtari, Chhattisgarh, ... Applicant versus State of Chhattisgarh Through - Station House Officer, Police Station Sihava, District Dhamtari, Chhattisgarh, ... Respondent For Applicant : Ms. Gunja Taram, Advocate on behalf of Mr. Anil Gulati, Advocate For Respondent/State : Mr. Deepak Kumar Singh, Panel Lawyer Hon'ble Shri Justice Radhakishan Agrawal CAV Judgment 1. The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 15.09.2016 passed in Criminal Appeal No.79/2014 by the Additional Sessions Judge, Dhamtari, (C.G.), whereby judgment dated 16.10.2014 passed by the Judicial Magistrate First Class, Nagri, District – Dhamtari (C.G.) in Criminal Case No.38/2014, convicting the applicant under Section 34(1)(a) of the Chhattisgarh Excise Act, 1915 and sentencing him to undergo RI for one year and to pay fine amount of Rs.10,000/- and in default of payment of fine, additional SI for one month, has been affirmed. 2. Case of the prosecution, in brief, is that on 11.02.2014 at about 12:30 PM, PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2025.08.28 14:43:38 +0530 2 during patrolling, the police of Police Station – Sihava stopped the applicant and searched his bag which is made of compost sacks and upon search, the police seized 20 quarters of country made plain liquor filled in 180 ml bottle from the possession of the applicant. The same was seized in presence of the witnesses i.e. Radhelal (PW-02) and Sanju Kumar (PW-03) at about 12:45 O’Clock. Thereafter, the police registered the offence punishable under Section 34(1) of the C.G. Excise Act against the applicant. 3. After completion of investigation, charge sheet under Section 34(1) of the C.G. Excise Act was filed before the Court of JMFC, Nagri, District - Dhamtari. 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, after appreciation of oral and documentary evidence, convicted the applicant under Section 34 (1)(a) and sentenced him as mentioned in paragraph 1 of this order. The said judgment was challenged by the applicant in criminal appeal, however, the Appellate Court, vide judgment dated 15.09.2016 has affirmed the order of conviction and sentence. Hence, this revision. 5. Learned Counsel appearing for the applicant submits that the prosecution has failed to establish its case beyond reasonable doubt. She further submits that the FIR (Ex.P-09) was lodged on 11.01.2014 at about 13:35 O’Clock in which Crime No. 02/2014 is mentioned, however, the time at which the seizure memo (Ex.P-03) was prepared i.e. at 12:45 O’Clock also contained Crime No.02/2014, which shows that before lodging of the FIR, Crime Number has already been mentioned in the seizure memo. This apart, the prosecution has failed to explain as to how the Crime No.02/2014 has been mentioned in the seizure memo (Ex.P-3) before lodging of the FIR (Ex.P-9). 3 It is also submitted that the seizure memo does not bear any sample seal in its prescribed column i.e. Column No.13. The witnesses to the seizure memo, namely, Radhelal (PW-02) and Sanju Kumar (PW-02) have not supported the case of the prosecution. Furthermore, it is contended that the prosecution has not produced any evidence to show that the seized property was kept in safe custody and no Malkhana register has also been produced to show that the seized property was kept in Malkhana in safe custody. Further, the articles were seized on 11.01.2014 whereas examination report shows that the seized articles were sent for examination on 20.01.2014 and, thus, it appears that the seized article was sent for chemical examination belatedly and there was no explanation offered from the prosecution for the delay in sending the same. 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 her arguments, she placed reliance upon a decision rendered in the matter of Suresh Kumar vs. State of Chhattisgarh reported in 2006 (3) CGLJ 259. Lastly, she submits that the fine amount has already been deposited before the trial Court by the applicant. 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. In order to deal with the contention of the counsel for the applicant, it would be apt to discuss the evidence of the prosecution witnesses and other documents available on record. As per the statement of Lokesh Netam (PW-06), Head Constable, on 11.01.2014, during patrolling when he accompanied by other staff members where coming to Sihawa from village Baspani, at about 12:00 O’Clock, he saw a person (the applicant/accused) 4 having some material with him on a bag made of compost sacks. On the basis of suspicion, he searched the applicant and found 20 quarters of country made plain liquor filled in a bottle of 180 ml from his possession. At the same place, he stopped passersby, namely, Radhelal (PW-02) and Sanju Patel (PW-03) and gave them notice (Ex.P-2) to participate in the seizure proceedings and after that seizure memo was prepared by him vide Ex.P-3. This witness has further stated that after completion of seizure proceedings, he came to the police station and registered FIR (Ex.P-9) being Crime No.02/2014 dated 11.01.2014 at 13:35 O’Clock which was lodged after the alleged seizure proceedings are completed but surprisingly, such Crime No.02/2014 was also mentioned in the seizure memo (Ex.P-3) at Column No.1 i.e. before filing of FIR. The prosecution has failed to explain as to how such crime number was mentioned in the seizure memo despite the fact that after 1 and 1 ½ hours of the seizure proceedings, the FIR was registered. 9. Seizure memo (Ex.P-3) also does not transpire that after seizure of alleged liquor, no sample seal was affixed in its Column No.12 and 13 and whether the seized liquor was kept in safe custody. Ex.P-3 seizure memo further shows the signatures of the witnesses, but as per Column Nos. 12 & 13, there was no sample seal affixed and it was also not proved by the prosecution that signature of the witnesses have been obtained only after the seized article is sealed and if the seized article could have been sealed, then sample seal would have certainly been there but in Column No.13, there was no sample seal affixed. 10. Radhelal (PW-02), one of the seizure witnesses, has stated that on receipt of notice (Ex.P-2), he took part in the seizure proceedings and although he has put his signature in the seizure memo (Ex.P-3), but in fact the police has not seized any articles from the applicant in his presence. In cross-examination, this witness remained firm and has not supported the case of the prosecution 5 and turned hostile. Another seizure witness, Sanju Kumar (PW-03), in his statement has stated that on 11.01.2014 at about 01:00 O ‘Clock, the police has seized 20 quarter liquor from the applicant in his presence which was kept in plastic bag. However, in cross-examination, this witness in paragraph 5 has further admitted that he knew Lokesh Netam (PW-06), Head Constable and when he put his signature in the seizure memo, at that time, Lokesh Netam was not present there. Thus, there appears contradictions and omissions in the statement of this witness and the statement of Lokesh Netam, who has prepared seizure memo. Their statements are not duly corroborated with each other and therefore, the statement of Lokesh Netam appears to be doubtful and suspicious. 11. Naresh Sahu (PW-05), Head Constable, has deposed that on 11.01.2014, he was posted as Malkhana Munshi and has received a bag containing the seized 20 quarter plain liquor in sealed condition. However, this witness in his cross-examination, has specifically admitted that after the seized property was being brought to him in his custody, thereafter, in the Thana Property register (Ex.P-6C), there was no mention as to where the seized property was sent and in whose custody it was kept. Further, in the Thana Property register, it is not mentioned that the seized property was deposited in “sealed” condition. 12. As per the statement of B.K. Andhare (PW-01), Excise Officer, the seized article which was kept in a sack of compost was produced before him in sealed condition by constable Bahur Kumar (PW-04) from police station Sihawa on 20.01.2014. However, as per the case of prosecution, the article was seized on 11.01.2014 but the same was sent for chemical examination before the Excise Officer on 20.01.2014 i.e. after 09 days of the seizure. The prosecution has not offered any explanation for the delay of 9 days caused in sending the seized article for examination nor has produced any evidence to 6 show whether the seized property was kept in safe custody. This apart, no entry has been mentioned in the seizure register (Ex.P6C) regarding sending of the seized articles for chemical examination. 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 offer any explanation regarding the sample seal not affixed in the seizure memo. Furthermore, the provisions of Section 57 (a) of the Excise Act have also not been duly complied with by the prosecution. 13. 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 assigned 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 is rendered doubtful since he did not produce the intoxicant alleged to have been seized from the Applicant in the 7 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.” 14. 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 and the conviction of the applicant under Section 34 (1)(a) 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 (1)(a) 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 extending him benefit of doubt. Fine if paid, shall be refunded to the applicant. 15. 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 Prakash