1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Revision No. 947 of 2016 Judgment Reserved on : 07/03/2025 Judgment Delivered on : 22/ 03/ 2025 • Sugreev Hichami S/o Preetram Hichami Aged About 36 Years R/o Village Markatola Korar Police Station Korar Revenue and Civil District North Bastar Kanker, Chhattisgarh, ... Applicant versus • State Of Chhattisgarh Through The District Magistrate North Bastar Kanker And Police Station Korar District North Bastar, Chhattisgarh. ... Respondent For Applicant : Mr. Pravin Kumar Tulsyan, Advocate For State/Respondent : 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 01.10.2016 passed in Criminal Appeal No.35/2015 by the Additional Sessions Judge, Kanker, District - North Bastar Kanker (C.G.), whereby judgment dated 18.08.2015 passed by the Chief Judicial Magistrate, North Bastar, Kanker (C.G.) in Criminal Case No.1160/2014, the applicant has been convicted under Section 34(2) of the Chhattisgarh Excise Act, 1915 and sentenced to undergo RI for one year and to pay fine amount of Rs.25,000/- and in default of PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2025.03.22 16:04:00 +0530 2 payment of fine, additional RI for four months. 2. Case of the prosecution, in brief, is that on 04.11.2014, Dwarka Prasad Shriwas, Inspector, Police Station Korar (PW-08) along with other Police Officials went for patrolling to village Markatola and on the basis of information received from the informer that the applicant is involved in keeping country made liquor and beer in his house and selling the said liquor illegally, the police reached to the house of the applicant and seized 30 containers of Golden Goa wishky, 6 container Imperial Blue Foreign liquor, 30 quarter Frontline Foreign liquor, 3 containers Kingfisher Beer and 6 container Haywards Beer were seized from the house of the applicant in presence of the witnesses i.e. Manoj Mandawi (PW-01) and Shyamshay Darro (PW-02). The seized article was sent for chemical examination on 04.11.2014 which was examined by A.K. Banjare (PW-05), Excise Sub-Inspector. On being examined, the seized article was found to be alcohol. 3. After completion of investigation, charge sheet under Section 34 (2) was filed before the Court of Chief Judicial Magistrate, North Bastar, Kanker. 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 8 witnesses. Statement of the accused/applicant was also recorded under Section 313 of Cr.P.C. 4. Learned trial Court as well the appellate Court, after appreciation of oral and documentary evidence, convicted the applicant under Section 34 (2) and sentenced him as mentioned in paragraph 1 of this judgment. Hence, this revision. 5. Learned Counsel appearing for the applicant submits that the 3 prosecution has failed to establish its case beyond reasonable doubt. He further submits that the prosecution has failed to prove the seizure of alleged liquor from the exclusive possession of the applicant. This apart, the independent seizure witnesses, namely, Manoj Mandavi (PW-01) and Shyamsay Darro (PW-02) have turned hostile and not supported the case of prosecution, further, the police officials, namely, Dasru Ram (PW-03) and K.R. Diwan (PW-06), have also not properly supported the case of prosecution. It is further submitted that no sample panchnama was prepared by the investigating officer for sending the seized articles for examination. He also submits that the alleged liquor was seized on 04.11.2014 but it was sent to Excise Sub- Inspector A.K. Banjare (PW-05) for examination on 09.11.2014 and the prosecution has failed to offer any explanation for the delay in sending the same for examination. He further contends that the prosecution has not produced any evidence to show that whether 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. 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 his arguments, he placed his reliance upon a decision rendered in the matter of Suresh Kumar vs. State of Chhattisgarh reported in 2006 (3) CGLJ 259 and Umesh vs. State of M.P. 2012 (II) MPWN 46, and Santosh Nirmalkar vs. State of Chhattisgarh reported in 2009 SCC OnLine Chh 258. Lastly, he submits that the fine amount has already been deposited before the trial Court by the applicant. 4 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 Dwarka Prasad Shriwas (PW-08), Inspector, on 04.11.2014, on the basis of secret information received from the informer, he reached to the village Markatola accompanied by other staff members and from where they reached to the house of the applicant/accused, where the applicant had kept a blue container in front of his house. Upon search, the police seized 30 containers of Golden Goa wishky, 6 container Imperial Blue Foreign liquor, 30 quarter Frontline Foreign liquor, 3 container Kingfisher Beer and 6 container Haywards Beer from the house of the applicant in presence of the seizure witnesses, namely, Manoj Mandavi (PW-01) and Shyamshay Darro (PW-02). The seizure proceedings were done vide seizure memo Ex.P-1. However, in his cross-examination, he admitted that the property mentioned in the seizure memo (Ex.P1) was not sealed. He further admitted that copy of malkhana register has also not been produced which would show the storage of seized articles in safe custody. This apart, he admitted that memo for examination of seized articles i.e. Ex.P-11 was sent on 05.11.2014 but the articles were not sent on the said date for examination, nor any sample panchnama was prepared. Thus, the testimony of the investigating officer does not show the seized articles were properly sealed or not. Moreover, this witness has also admitted that other members of the family of the applicant were also residing in the house from where the alleged liquor 5 were seized. 9. The seizure was effected vide seizure memo (Ex.P-1). On perusal of the seizure memo, it transpires that after preparing samples, no sample panchnama was prepared by the investigating officer for sending the alleged articles for examination. Further, there is no sample seal affixed in Column No.13 of seizure memo (Ex.P-1). This apart, there is no conclusive evidence available with regard to keeping of the seized articles in the safe custody. No Malkhana register has also been produced to show that the seized property was kept in Malkhana in safe custody, nor the malkhana moharir has been examined. Thus, it cannot be ruled out from the possibility that the alleged seized articles/samples may be tampered with. 10. Besides above, the independent seizure witnesses, namely, Manoj Mandavi (PW-01) and Shyamsai Darro (PW-02), both have stated in their Court statement that no seizure of articles were made in front of them, nor the applicant was arrested before them. Both these witnesses have put their signature on the seizure memo (Ex.P-1) only on the instructions of the police. In their cross-examination, they have admitted that they have gone to police station to collect death certificate and on the instructions of the police, they both put their signs in the seizure memo and they were not told anything regarding the seizure of the alleged articles. Thus, both these witnesses have not supported the case of the prosecution and turned hostile. 11. Dasru Ram (PW-3), constable No.290, in his statement has deposed that on the date of incident, he along with the Thana Incharge had gone to village Markatola in the house of the applicant where the 6 applicant was selling liquor. But, this witness, in his cross-examination has specifically admitted that the house from where the seizure of liquor was made, other members were also residing in the said house. He further admitted that he did not know who had kept the alleged liquor in the said house. 12. Kirturam Diwan, A.S.I. (PW-06) in his testimony has deposed that on the date of incident, he accompanied the investigating officer to the house of the applicant to seize the alleged liquor. However, in his cross-examination, this witness admitted that he is not aware of the owner of the house from where the alleged seizure of liquor has been made, as other family members were also residing in the said house. He further admitted that he did not know who kept the liquor in the house. 13. Punnulal Lohale (PW-07), soldier No.93, in his Court statement has also deposed that he accompanied the investigating officer to the house of the applicant to seize the alleged liquor. However, in his cross-examination, this witness admitted that he did not know the place from where and from whom the police has seized the alleged liquor. He further admitted that the police has seized 30 container liquor but he did not know the place from where the police has seized the said liquor. Thus, this witness has also turned hostile. 14. Ishwar Lal Netam (PW-04), Patwari, who under the instructions of Tehsildar prepared spot map (Ex.P-5) of the house, has admitted in his cross-examination that there is no document available with regard to the owner of the house from where the seized articles were seized, further, many persons were residing in the said house. 7 15. As per the statement of A.K. Banjare (PW-05), Excise Sub-Inspector, on 09.11.2014, seized liquor kept in the bottles were brought by constable No.1224, namely, Sangeet Kawde and after examination, he submitted the test report (Ex.P-7) to the constable. However, in cross- examination, this witness admitted that he did not mention in his report that the samples which were presented before him was properly sealed or not. Further, as per the case of prosecution, the article was seized on 04.11.2014 but the same was sent for examination before the Excise Sub-Inspector on 09.11.2014. The prosecution has not offered any explanation for the delay caused in sending the seized article for examination nor has produced any evidence to show whether the seized property was kept in safe custody and that no Malkhana register has 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 prove whether the alleged articles were seized from the exclusive possession of the applicant. Further, no sample panchnama was prepared by the investigating officer for sending the seized materials for examination. This apart, the provisions of Section 57 (A) of the Excise Act has also not been complied with by the prosecution which reads as under: “57-A 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, 8 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. ” 16. 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 57 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 57-A 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 9 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.” 17. By applying the decision to the facts of the present case and considering the evidence on record as discussed above, 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 giving benefit of doubt of the aforesaid charge. Fine if paid, shall be refunded to the applicant. 18. 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