Chattisgarh High Court
Premnarayan vs State Of Chhattisgarh on 16 April, 2025
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2025:CGHC:17574
NAFR
Digitally signed
PRAKASH
by PRAKASH
KUMAR HIGH COURT OF CHHATTISGARH AT BILASPUR
KUMAR Date:
2025.04.17
16:04:07 +0530
Criminal Revision No. 698 of 2012
• Premnarayan S/o Channuram Dahre, aged about 21 years, R/o Village
Donar, PS Arjuni, Tah. and Distt. Dhamtari, Chhattisgarh,
... Applicant
Versus
• State of Chhattisgarh Through District Magistrate Dhamtari, P.S. -
Arjuni, Distt. Dhamtari, Chhattisgarh,
... Respondent
For Applicant : Mr. Sunil Sahu, Advocate
For State/Respondent : Ms. Smita Jha, Panel Lawyer
Hon'ble Shri Justice Radhakishan Agrawal
Order on Board
16/04/2025
1. The present revision filed under Section 397/401 Cr.P.C. is directed
against the judgment of conviction and order of sentence dated
18.10.2012 passed in Criminal Appeal No.152/2012 by the Additional
Sessions Judge, Dhamtari, (C.G.), arising out of judgment dated
27.09.2012 passed by the Chief Judicial Magistrate, Dhamtari (C.G.) in
Criminal Case No.559/2012 wherein the present applicant and co-
accused Ashwini have been convicted under Section 34(2) of the
Chhattisgarh Excise Act, 1915 and sentenced to undergo RI for one
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year and to pay fine amount of Rs.50,000/- each, and in default
thereof, additional SI for 60 days each. The learned Appellate Court
while allowing the appeal in part confirmed the conviction and jail
sentence of the applicant, however, reduced the fine amount from
Rs.50,000/- to Rs.25,000/-, and in default thereof, additional SI for two
months.
2. Case of the prosecution, in brief, is that on 12.06.2012, Ramesh Sahu
(PW-07), Assistant Sub-Inspector, Police Station Arjuni along with other
Police Officials had gone for patrolling to village side and on the basis
of information received from an informer, near Mahanadi river, the
police officials stopped one motorcycle bearing registration No.CG-05-
C-8540 in which the present applicant and co-accused Ashwini were
sitting. Upon search, they were jointly found in possession of total 18
liters of country made liquor (50 bottles of plain liquor and 50 bottles of
masala liquor each 180 ml) in two cartoons. After following the
necessary procedure, the police registered the case for the offence
punishable under Section 34(2) of Chhattisgarh Excise Act against the
applicant and the co-accused person.
3. After completion of investigation, charge sheet under Section 34 (2) of
the C.G. Excise Act was filed before the Court of 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 8 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 and co-accused under Section 34 (2)
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of the C.G. Excise Act and sentenced them as mentioned in para 1 of
this order. The said judgment was challenged by the applicant in
criminal appeal, however, the Appellate Court, vide judgment dated
18.10.2012 has confirmed the conviction and jail sentence but reduced
the fine amount as stated in paragraph 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.
He further submits that there is material contradictions and omissions
in the statement of the investigating officer Ramesh Sahu (PW-07) with
regard to seizure, seal and safe custody of the seized articles. This
apart, the statement of the investigating officer is not properly
corroborated with the statement of Chhanu Lal Sahu (PW-06), Head
Constable. Moreover, the independent witnesses, namely, Vijay Kumar
Dhruw (PW-03) and Rajau Ram (PW-04) have not supported the case
of the prosecution. 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 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.
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8. As per the statement of Investigating Officer Ramesh Sahu (PW-07),
Assistant Sub-Inspector, on 12.06.2012, he along with other Police
Officials had gone for patrolling to village side and on the basis of
information received from an informer, he reached to the spot near
Mahanadi river, and stopped one motorcycle bearing registration
No.CG-05-C-8540 in which the present applicant and co-accused
Ashwini were transporting liquor and on being inquired, they were
jointly found in possession of total 18 liters of country made liquor (50
bottles of plain liquor and 50 bottles of masala liquor each 180 ml) in
two cartoons which was tied in a red coloured towel (gamchha). After
following the necessary procedures, the same was seized vide seizure
memo Ex.P-4. He further stated that on the said date itself, he has
recorded the statements of witnesses Vijay Dhruw, Rajau Yadav,
Pradeep Singh, Prahlad Banchor and, thereafter produced the seized
motorcycle and the seized articles to the Malkhana Moharir. This
witness, in his cross-examination, has admitted that on the date of
incident, he put the seal on the liquor box after sealing it and further
admitted that he had not put seal on the towel (gamcha).
9. On the other hand, Chhanu Lal Sahu (PW-06), Head Constable who
was posted as Malkhana Moharir on the date of incident, in his
statement has deposed that Ramesh Sahu (PW-07), Assistant Sub-
Inspector presented him sealed desi plain and desi masala liquor (50-
50 bottles each) kept in two cartoons tied in a red colour towel
(gamchha) and after receiving the same, he kept it safely in the
Malkhana after making entries in the malkhana register. He further
stated that on 18.06.2012, he sent the seized articles for examination
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to Excise Sub-Inspector but the same was returned on the same date
without examination. This witness in his cross-examination, has
admitted that after seizure, the towel (gamchha) which was presented
to him was sealed and therefore, he did not count it. He further
admitted that the reason why the confiscated goods were returned
without testing on 18.06.2012 has not been mentioned in the Malkhana
register.
10. Nidhis Koshti (PW-02), Excise Sub-Inspector, has stated that on
20.06.2012, seized liquor was brought by constable No.376, namely,
Gaukaran Netam in two cardboard cartoons. In his cross-examination,
he admitted that he did not make any panchnama before opening the
cardboard cartoons. He further admitted that he did not tested the
entire liquor. He lastly admitted that the liquor which was brought in
cardboard cartoon was sealed and apart from that there was no seal
anywhere else. He has also not stated that the seized liquor was sent
in a red coloured towel (gamchha) in a sealed condition.
11. This apart, seizure witness, namely, Vijay Kumar Dhruw (PW-03) in his
statement has stated that on the date of incident, the police had caught
the applicant Premnarayan and co-accused Ashwini who had kept two
boxes of country made liquor. However, in his cross-examination, he
admitted that the boxes were sealed and it was not opened and,
therefore, he cannot say whether there was liquor inside in the box or
not.
12. Another seizure witness, Rajau Ram (PW-04) in his statement deposed
that on the date of incident, the police called him and told him that they
have seized liquor from the accused persons and told him to put
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signature. He further stated that there were three motorcycles on which
two-two (each) boxes of liquor were kept on it. However, in cross-
examination, he admitted that the police has seized three motorcycles
and six boxes of liquor. He further admitted that the liquor box was
sealed and it was not opened before him, and therefore, he could not
say that whether there was liquor inside the box or not.
13. On careful perusal of the statements of the witnesses and documents
available on record, there appears material contradictions and
omissions in the statement of investigating officer Ramesh Sahu (PW-
07), Malkhana Moharir Chhunu Lal Sahu (PW-6) and Excise Sub-
Inspector Nishid Koshti (PW-02) with regard to the seal affixed in the
liquor box and/or towel (gamchha) and safe custody of the seized
articles. The statements of these witnesses do not corroborate with
each other. This apart, the seizure witnesses, namely, Vijay Kumar
Dhruw (PW-03) and Rajau Ram (PW-4) have not supported the case of
the prosecution and have not seen the alleged seized property and
have not supported the version of the investigating officer Ramesh
Sahu (PW-07).
14. As per the case of prosecution, the article was seized on 12.06.2012
but the same was sent for examination by the Excise Sub-Inspector on
20.06.2012 i.e. after 08 days of the seizure. Chhanu Lal Sahu (PW-06)
Head Constable, Thana Malkhana Incharge has also stated in his
examination-in-chief that he has sent the seized property for
examination to Excise Sub-Inspector on 18.06.2012 but it was returned
without examination. It is pertinent to mention here that the entries
made in Malkhana panji i.e. Ex.P-8C do not show that the alleged
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property was sent for examination on dated 18.06.2012. Therefore, the
alleged property, without mentioning its entries in Malkhana Panji, was
removed from Thana Malkhan on 18.06.2012. Further, the entry is not
mentioned in Thana Malkhana Panji that the property which was sent
on 18.06.2012 was again deposited in Thana Malkhana. This apart,
Nidhis Koshti (PW-02), Excise Sub-Inspector has also not stated that
the property which was sent to him for examination, was sealed in a
red coloured towel (gamchha). 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 that whether the
seized property was kept 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. This apart,
the provisions of Section 57 (a) of the Excise Act have also not been
complied with by the prosecution.
15. 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
8immediate 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 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.”
16. 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 (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
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aside and the applicant is acquitted of the aforesaid charge. Fine if
paid, shall be refunded to the applicant.
17. 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