1 2025:CGHC:56471 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Revision No. 822 of 2016 1 - Angadram Suryavanshi S/o Late Motiram, Aged About 42 Years, R/o Village Telsara, P.S. Chakarbhata Civil and Revenue District Bilaspur, Chhattisgarh, 2 - Rupesh Verma S/o Saukhilal, Aged About 41 Years, R/o Village Bodri, P.S. Chakarbhata, Civil and Revenue District Bilaspur, Chhattisgarh, ... Applicants versus State of Chhattisgarh Through District Magistrate Bilaspur by P.S. Incharge Chakarbhata, District Bilaspur, Chhattisgarh, ... Respondent For Applicants : Mr. Devesh Chandra Verma, Advocate For Respondent/State : Mr. Deepak Kumar Singh, Panel Lawyer Hon'ble Shri Justice Radhakishan Agrawal Judgment on Board 19/11/2025 1. The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 26.08.2016 passed in Criminal Appeal No.46/2016 by the 5th Additional Sessions Judge, Bilaspur, (C.G.), whereby judgment dated 19.08.2015 passed by the Judicial Magistrate First Class, Belha, District – Bilaspur (C.G.) in Criminal Case No.106/2015 has been set aside by the learned Appellate Court and convicted the applicants under Sections 34(1)(a), 34(2) of the Chhattisgarh Excise Act and sentenced them to undergo rigorous imprisonment for one PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2025.11.19 17:11:57 +0530 2 year each with fine of Rs.25,000/- (two counts), in default of payment of fine, additional RI for 3-3 months. 2. Case of the prosecution, in brief, is that on 27.01.2015, B.N. Rai (PW-06), Sub-Inspector, Police Station Chakarbhata along with other Police Officials were on patrolling duty and when they reached near Kali Dhaba, they saw a Vista Car bearing Registration No.CG-10-N-9725 standing near a liquor shop. When the driver of the said car saw the police van, then three persons who were sitting in the said car, came out and started fleeing away. Thereafter, one of the accused persons, namely Angadram Suryavanshi (applicant No.1 herein) was caught by the police personnel and the said car was searched. On being searched, the police found 10 boxes out of which in 9 boxes, each 48 bottles of english liquor and in one box, 46 bottles of english liquor were kept i.e. total 86 liters amounting Rs.24,000/- and the same were seized in presence of the witnesses, thereafter following the other necessary procedures, the offence was registered. 3. After completion of investigation, charge sheet was filed before the Court of JMFC, Belha, District - Bilaspur. The applicants abjured the guilt and pleaded innocence. So as to prove the guilt of the accused/applicants, the prosecution has examined as many as 9 witnesses. Statement of the accused/applicants was also recorded under Section 313 of Cr.P.C. 4. Learned trial Court, after appreciation of oral and documentary evidence, vide judgment dated 19.08.2015 acquitted the accused persons of the charges levelled against them. The said judgment was challenged by the State in criminal appeal, however, the Appellate Court, vide judgment dated 26.08.2016 convicted and sentenced the applicants as mentioned in paragraph 1 of this judgment. Hence, this revision. 5. Learned Counsel appearing for the applicant submits that the prosecution has failed to establish its case beyond reasonable doubt. He further submits that in the seizure memo (Ex.P-1) dated 27.01.2015 at 10:50 PM, the Crime 3 No.29/2015 is mentioned at Column No.1, but the prosecution has failed to explain as to how the Crime No.29/2015 has been mentioned in the seizure memo before lodging of the FIR (Ex.P-10) dated 27.01.2015 at 23:15 O’clock. It is also submitted by him that the seizure memo also does not bear any sample seal. The prosecution witnesses have also not supported the case of prosecution. He also submits that the alleged only 4 bottles were sent to Excise Sub-Inspector S.K. Dwivedi (PW-03) for examination on 20.02.2015 and the prosecution has failed to offer any explanation for the delay in sending the same for examination. He further contended that the prosecution has failed to prove that the alleged seized property was kept in safe custody and the Malkhana register did not show that the seized property was kept in Malkhana in safe custody in “sealed” condition. 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. Lastly, he 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. The investigating officer of the case, namely, B.S. Rai (PW-06), Assistant Sub-Inspector, Chakarbhata, in his Court statement has stated that on 27.01.2015, he along with other police personnel were on patrolling duty, at that time, in front of English liquor shop situated near Kali Dhaba, seeing the police van, one white colour vista car 4 bearing registration No.CG-10-N-9725 stopped and three persons sitting in it started fleeing away. Thereafter, he also started chasing them and one of the accused persons, namely Angadram (applicant No.1 herein) was caught by the police personnel and then the said car was searched. On being searched, the police found total 10 boxes english liquor in which total 478 bottles were kept. Thereafter, the said articles along with the said car were seized vide seizure memo (Ex.P-01). He further stated that thereafter, he returned to the police station and lodged the the FIR (Ex.P-10) and subsequently, he sent four quarters of liquor for chemical examination vide Ex.P-11. However, this witness in his cross-examination, has admitted that he has not seized any liquor nor any vehicle from the accused Rupesh Verma. This apart, he has further admitted that he cannot say how much quantity were seized and from which box, the liquor was sent for chemical examination. Further, the Malkhana register (Ex.P5C) does not mention the details about the sending the liquor for testing and its return from there. He has further admitted that the articles (A1 to A10) which were kept in a cartoon and presented before the Court, did not bear any seal or signature of the police station. 9. Ajju Khan (PW-01) is one of the seizure witnesses, who in his Court statement has deposed that the police did not seize anything from the possession of the accused Angadram before him and he cannot tell who was in possession of the car at the time when the liquor was confiscated. This witness in his cross-examination has admitted that at the time of incident, he has not seen the accused Angadram fleeing away from the said seized car. On the contrary, B.N. Rai (PW-06) stated that he chased and caught accused Angadram but Rudrashankar Tiwari (PW-09) has stated that they both chased and caught Angadram. This apart, Ajju Khan (PW-01) stated that he has not seen Angadram fleeing away, rather he was standing near that car. 5 Thus, this witness has not supported the case of the prosecution. 10.Rudrashankar Tiwari (PW-09), Constable, who is a police witness has deposed that on the date of incident when their police van stopped, then three persons came out of car bearing registration No.CG-10-N-9725 and started fleeing away. Thereafter, they chased them and caught one person (Angadram), and, two persons fled away from there. However, this witness in his cross-examination has admitted that the two persons who were sitting in front seat of the car fled away from the spot, however, he did not say whether those two persons were the driver and conductor. He further admitted that he cannot say that from which cartoon and in what quantity the liquor was taken out for sampling. 11. Seizure memo (Ex.P-1) also does not transpire that after seizure of alleged liquor, no sample seal was affixed in its Column and whether the seized liquor was kept in safe custody in “sealed” condition. Ex.P-1 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. 12.Furthermore, B.N. Rai (PW-06), after completion of seizure proceedings, he came to the police station and registered FIR (Ex.P-10) being Crime No.29/2015 dated 27.01.2015 at 23:15 O’clock which was lodged after the alleged seizure proceedings are completed but surprisingly, such Crime No.29/2015 was also mentioned in the seizure memo (Ex.P-1) at Column No.1 i.e. before filing of FIR. The prosecution has failed to explain as to how such crime number was firstly mentioned in the seizure memo i.e. before registration of FIR which creates doubt that the seizure of the articles were made on the spot. 6 13.As per Malkhana register (Ex.P5C), the details regarding the seizure of the liquor has been mentioned but it is nowhere written that the said seized articles were deposited in “sealed” condition. This apart, only 4 bottles were sent for chemical examination on 20.02.2015 before S.K. Dwivedi (PW-03), Excise Sub-Inspector i.e. after a delay of about 23 days. The prosecution has failed to prove that the above 4 bottles were part of the alleged seized property, further, there is no such entry made in the Thana Malkhana register (Ex.P5C) which shows that the 4 bottles were sent for examination and that the property was kept in safe custody. This apart, no entry has been mentioned in the Malkhana 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. 14.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. 7 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.” 15.By applying the decision to the facts of the present case, and on perusal of the evidence led by the prosecution as discussed above, particularly the statement of the investigating officer B.N. Rai (PW-06) which is not properly corroborated with the statement of other prosecution witnesses, further, the prosecution has failed to prove its case beyond reasonable doubt with regard to the seizure of the alleged liquor from the possession of the present applicants on the spot and further, the alleged articles and the sample bottles were not kept in the safe custody in “sealed” condition, this Court is of the opinion that the conviction of the applicants under Section 34 (1)(a), and 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 judgment of conviction dated 26.08.2016 under Section 34 (1)(a), and 34 (2) of the C.G. Excise Act and the sentence awarded 8 thereunder is hereby set aside and the applicants are acquitted of the aforesaid charges by extending them benefit of doubt. Fine if paid, shall be refunded to the applicants. 16.Consequently, the revision is allowed. The applicants are reported to be on bail and their 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