1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 1020 of 2016 • Virendra Paras, S/o Khemlal Paras, aged about 40 Years, R/o Village Sambalpur, Thana Arjuni, Tahsil and District Dhamtari, Chhattisgarh. ... Applicant versus • State of Chhattisgarh, Through District Magistrate, Thana Arjuni, District Dhamtari, Chhattisgarh. ...Non-applicant For Applicant : Mr. Arvind Prasad, Advocate on behalf of Mr. Samir Singh, Advocate. For Non-applicant : Ms. Smita Jha, Panel Lawyer. Hon'ble Shri Justice Radhakishan Agrawal Order on Board 14.02.2025 Heard. 1. This present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 23.09.2016 passed in Criminal Appeal No.41/2016 by the Additional Sessions Judge, District Dhamtari, (C.G.), affirming the judgment dated 11.04.2016 passed by the Chief Judicial Magistrate, Dhamtari (C.G.) in Criminal Case No.761/2015, whereby the applicant has been convicted under Section 34(1)(a) of the Chhattisgarh Excise Act, 1915 (for short, 'the Act, 1915') and sentenced him to undergo rigorous imprisonment for six months and fine of Rs.10,000/- and in default of payment of fine amount to undergo additional simple imprisonment for two months. AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.02.14 17:42:26 +0530 2 2. Case of the prosecution, in brief, is that on 10.08.2015, PW-4 Satyam Kumar Chauhan, P.S.I. along with staff had gone for patrolling and during that period, he received information from the informer that at village Arjuni turn, one person is involved in selling the illegal liquor. Thereafter, he along with staff and witnesses reached to the spot and made a raid, upon which, 20 quarters of goa whisky liquor, each containing 180 ml, were recovered from his possession. Thereafter, present applicant was given a notice under Section 91 of Cr.P.C. and asked to produce the licence for selling the said liquor, but he did not produce any document. After that, Dehati Nalishi (Ex.P-7) was prepared on the spot and the said liquor was seized vide Ex.P-4 and thereafter, FIR (Ex.P-9) was registered against the applicant. Seized liquor was sent for chemical examination and on being examined, the said article was found to be liquor whisky vide Ex.P-2. 3. After completion of investigation, charge sheet under Section 34(1)(a) of the Excise Act was filed before the Chief Judicial Magistrate, 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 as well as the Appellate Court, after appreciation of oral and documentary evidence, convicted the applicant under Section 34(1)(a) of the Act, 1915 and sentenced him as mentioned in para 1 of this order. Hence, this revision. 5. Learned Counsel appearing for the applicant submits that the prosecution has failed to establish its case beyond reasonable doubt. 3 He further submits that there are material contradictions and omissions in the statement of PW-4 Satyam Kumar Chauhan and his statement does not corroborate with the statements of other witnesses. He further submits that there is no cogent and clinching evidence on record to show that the liquor was in possession of the applicant. He also submits that PW-5 R.S. Sinha, Head Constable, has stated that he has sent the seized article for chemical examination on 11.08.2015, but test report (Ex.P-2) clearly shows that it was received on 17.08.2015 and for that the prosecution has failed to offer any explanation for the gap occurred. On these premises, it is urged by counsel for the applicant that the present revision be allowed and the applicant be acquitted of the charge leveled against him. 6. On the other hand, learned State Counsel opposed the revision, while supporting the impugned judgments of conviction and order of sentence passed by the trial Court as well as Appellate Court. 7. I have heard learned counsel appearing on behalf of the parties and perused the record minutely with utmost circumspection. 8. PW-4 Satyam Kumar Chauhan, P.S.I. has stated that on 10.08.2015, when he was on patrolling duty, he received an information from the informer that the applicant is involved in selling the illegal liquor. Thereafter, he along with constable No.507 rushed to the spot and maid a raid, upon which, 20 quarters of goa whisky liquor, each containing 180 ml, were recovered from the possession of the applicant. After that, on the spot itself, vide Ex.P-3, he served a notice to the witnesses PW-2 Mahesh Kumar and PW-3 Bhakku @ Mahipal under Section 160 of Excise Act to be present on the spot and 4 thereafter, in presence of witnesses, he seized 20 quarters bottles of Goa Whisky liquor from the possession of the applicant vide Ex.P-4. On the spot, he registered Dehati Nalishi (Ex.P-7) against the applicant and spot map was also prepared vide Ex.P-5. Thereafter, he asked the applicant to produce valid documents for selling liquor, but he did not produce the same vide Ex.P-8. Thereafter, he arrested the applicant and prepared panchnama vide Ex.P-6 and on the basis of Ex.P-7 Dehati Nalishi, FIR (Ex.P-9) was registered against the applicant. However, on the contrary, PW-6 Girish Chand Sahu, Constable and a member of search party, admitted in his cross-examination that the place of incident is a public place where number of shops and hotels are situated and there is a thoroughfare of public. It is also admitted by him that the seized 20 quarters of Goa whisky liquor were kept in a public place on the side of the road near Arjuni turn. He further admitted that when he along with PW-4 Satyam Kumar Chauhan reached near the spot, at that time, no one was present there except both of them. This apart, PW-2 Mahesh Kumar, independent witness, admitted in his cross-examination that police obtained his signature together over the documents Exs.P-3 to P-6 in police station itself and at that time, nobody was there except him and he signed the documents (Exs.P-3 to P-6) on blank papers. He further admitted that at the time of seizure, present applicant was not present there. However, as against his, PW-3 Bhakku @ Mahipal, another independent witness, admitted in his cross-examination that police obtained his signatures over the documents (Exs.P-3 to P-6) at the same time and when he signed those documents, at that time, except him, 3-4 policemen and Mahesh, nobody was present there. 5 Apart from this, PW-5 R.S. Sinha, Head Constable, has stated in his deposition that on 11.08.2015, Constable No.412 Kamlesh Manhare took the seized articles to Excise Office, Dhamtari for examination and as the said articles could not be examined, the same were deposited in the Excise Office and he returned. Again on 22.08.2015, the said seized articles were examined and deposited in police station by Constable No.412 Kamlesh Manhare himself which was reported in Roznamcha Sanha at serial No.42 and he brought the original seized articles register before the Court which is marked as Ex.P-9. In cross-examination, this witness (PW-5) admitted that on 10.08.2015, at what time, the seized liquor was handed over to him is not mentioned in the register (Ex.P-9). However, on the contrary, PW-1 Ramdas Kanojiya, Excise Sub-Inspector, has stated in his deposition that on 17.08.2015, he received an application for examination through one Constable No.412 Kamlesh Mahare of police station Arjuni and in his cross-examination also, he admitted that seized articles were received by him for examination on 17.08.2015 and the same is evident from the document (Ex.P-2) test report and for that, prosecution has not offered any explanation for such gap occurred in sending the seized article for its examination nor produced any evidence to show that the seized property was kept in safe custody. 9. Thus, from perusal of the above evidence, it is quite vivid that there are material contradictions and omissions in the statement of PW-4 Satyam Kumar Chauhan, I.O. and his statement does not corroborate with the statements of other witnesses, independent witnesses and the documents available on record with respect to search, seizure and 6 investigation, which makes his version doubtful and untrustworthy. Besides, prosecution has also failed to bring on record any cogent and clinching evidence which would show that at the time of incident, present applicant was in the possession of seized liquor. In that view of the matter, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt, therefore, the applicant is entitled for acquittal on the basis of benefit of doubt. The learned trial Court as well as Appellate Court were totally unjustified in convicting and sentencing the applicant for the aforesaid offence. 10. Accordingly, the impugned judgments of conviction and order of sentence passed by the Court of CJM dated 11.04.2016 and that of Appellate Court dated 23.09.2016 are liable to be and are hereby set- aside and the applicant is acquitted of the charge under Section Section 34(1)(a) of the Act, 1915 by extending him the benefit of doubt. Fine amount, if paid, shall be refunded to the applicant. 11. In the result, the criminal revision is allowed. 12. 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. 13. Record(s) 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 Akhilesh