Madhya Pradesh High Court
Vinay @ Vikky Raghuvanshi vs The State Of Madhya Pradesh on 6 January, 2025
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:181
1 CRR-217-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL REVISION No. 217 of 2020
VINAY @ VIKKY RAGHUVANSHI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Himanshu Thakur, learned counsel for the petitioner.
Shri Surendra Gupta, learned Govt. Advocate for the respondent/ State.
HEARD ON : 04.12.2024
PRONOUNCED ON : 06.01.2025
ORDER
The criminal revision under Section 397 read with Section 401 of Cr.P.C.
has been filed by the petitioner being cresfallen by the judgment dated 06.01.2020
passed by learned IVXth Additional Sessions Judge, District Indore in Criminal
Appeal No. 206/2019 affirming the judgment dated 30.07.2019 passed by learned
Chief Judicial Magistrate, District Indore wherein the petitioner has been
convicted under Section 34(2) of M.P. Excise Act, 1915 (hereinafter referred to as
“the Act”) and sentenced to undergo 01 year R.I. alongwith fine of Rs.25,000/- and
in default stipulation 03 months R.I., Sections 39/192, 146/196 and 3/181 of
Motor Vehicle Act, 1988 (hereupon referred to as “MV Act“) alongwith fine of
Rs.2,000/-, Rs.500/- & Rs.500/- and Section 484 of Indian Penal Code, 1860 (in
short “IPC“) and sentenced to undego 01 year R.I. with fine of Rs.5,000/-
respectively and default stipulations.
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 1/6/2025
6:00:18 PM
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02. Succinctly stated brief facts of the case are that on 09.12.2010, ASI
posted at M.G. Road, Police station has received a discret information from the
informer that one Scorpio bearing Registration No.MP-09-MQ-0008 is loaded
with illegal liquor and shall pass through Tilak Path Road. Acting upon the said
information, the police team after following the due procedure of law, reached on
the spot, they saw the Scorpio vehicle as informed by the informer, on being
interrogation, the driver has named himself as Vinay @ Vickey and upon having
searched, the police has recovered 48 boxes (containing 50-50 quarters each) each
quarter containing 180ML total 430.200 bulk litres of countrymade liquor. At the
time of searching, police found counterfeit mark used by public servant and also
found vechile having no documents. Hence, the police registered the offence under
Section 34(2) of the Act, Sections 39/192, 146/196 and 3/181 of M.V. Act and
Section 484 of IPC against the petitioner.
03. During investigation, contraband was seized by preparing seizure
memo and recorded evidence on independent witnesses. Contraband was sent for
FSL analysis. After following the due procedure of law and filed the charge-sheet
against the petitioner for the offence Section 34(2) of the Act, Sections 39/192,
146/196 and 3/181 of M.V. Act and Section 484 of IPC.
04. In order to bring home the charges, the prosecution has examined total
06 witnesses namely Sanjay, Driver (PW-1), Santosh (PW-2), Subhash, Constable
(PW-3), Jitnedrasingh, Constable (PW-4), Vinod Kumar, Head Constable (PW-5)
and Ramesh Bourasi, Sub-Inspector (PW-6). No defence witness has been adduced
by the petitioner in his defence.
05. An appeal was also filed before the learned Appellate Court of
Additional Sessions Judge, having analized the facts, evidence available on record
and after hearing rival submissions of other side, learned Appellate Court affirmed
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the sentence given by learned trial Court and dismissed the appeal against which
this criminal revision has been preferred by the petitioner before this Court.
06. Learned counsel for the petitioner has challenged the order of learned
Appellate Court and trial Court and contended that the impugned order suffers
from infirmity and non-application of judicial mind. The orders impugned, if
allowed to stand, will cause great injustice and irreparable loss to the petitioner
who is innocent. Therefore, the same doesn’t deserve to be sustained. He has
further contended that in this case both independent witnesses have not supported
the prosecution case. Therefore, the findings of learned Appellate Court as well as
trial Court with regard to conviction of the petitioner only on the basis of police
witnesses are not in consonance with law. No police witness of raiding party has
stated that there was any logo of State Assembly on the vehicle whereas the
petitioner has been convicted under Section 484 of IPC which deals with
“counterfieting a mark used by a public servant or using a counterfiet mark as
genuine.” Ramesh Boirashi, Seizure Officer has not identified the present
petitioner/accused in his cross-examination. Moreover, in his statement, it was
stated that alleged liquor was not seized from the possession of petitioner. All
statements of police witnesses are full of omissions and contradictions. When no
independent witness is supporting the prosecution case, on the basis of
contradictory statements of police witnesses, no one can be convicted.
07. That apart, sample of all seized contraband, has not been sent for FSL
examination and with respect to remaining contraband, there is no report of any
officer of Excise Department who can vindicate the fact that the remaining seized
contraband was the actual countrymade liquor or not. No witness has been
produced on behalf of Excise Department. Under these conditions, order of trial
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RAIKWAR
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Court is suffering from illgality, impropriety and incorrectness.
08. On the other hand, learned Govt. Advocate for the State has supported
the impugned judgment and prayed for dismissal of this revision.
09. Now, this Court has to called upon verify legality, propriety and
corretness of the decisions rendered by Appellate Court and trial Court.
10. Heard leaned counsel for the petitioner and Government Advocate for
State.
11. In view of the rivals submissions of learned counsel for parties and on
perusal of statements of prosecution witnesses, it is evident that two independent
witnesses namely Sanjay (PW-1) and Santosh (PW-2) have not borne out the
prosecution case. Even having been declared hostile by the prosecution, they have
not supported the prosecution case. The public prosecutor has suggested in his
leading questions regarding seizure of countrymade liquor, but these witnesses
have declined to acknowledge his suggestions. As such, the prosecution’s case
regarding seizure of illegal liquor has not been backed by the independent
witnesses.
12. At this juncture, the attention of this Court has been drawn towards the
law rendered in State of M.P. vs. Budhram, 1996 JLJ 377 , wherein, it has been
held that where witnesses of memo statement of accused and recovery memo of
weapon have not supported the prosecution case, recovery is not established. In
this case, this High Court, having considered the hostility of the witnesses, has
ordained as under : –
“…Nevertheless, it can very well be said that a society gets
justice, which it deserves. If the persons are not willing to
state or depose about the facts which they have witnessed or
regarding the events which took place in their presence, the
Courts of law cannot help the situation, as the Courts of lawSignature Not Verified
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NEUTRAL CITATION NO. 2025:MPHC-IND:1815 CRR-217-2020
are duty bound to give finding strictly in accordance with law
and strictly within the four corners of law.”
13. Here, it is also pertinent to mention that when two independent
witnesses have not supported the prosecution case, it rests only upon the
testimonies of police witnesses. It is significant to mention here that all the other
prosecution witnesses i.e. Subhash, Constable (PW-3), Jitnedrasingh, Constable
(PW-4), Vinod Kumar, Head Constable (PW-5) and Ramesh Bourasi, Sub-
Inspector (PW-6) are police officials and actually, they have supported the
prosecution case in their own ways.
14. Here, it is worth to mention that accused has taken the defence that
since vehicle was collided with police vehicle, this false case was framed with the
aid of only police officials. The incident is said to be happened on an open place
but no independent witness is ready to support the prosecution case. It is
contended by Shri Himanshu Thakur, learned counsel for the petitioner that
learned trial Court as well as learned Appellate Court glossed over this fact and
only relying upon the police officials, convicted the petitioner. In reply, Shri
Surendra Gupta, learned Govt. Advocate submitted that only on the basis of
statements of police officials, the prosecution case can be established.
15. Considering the aforesaid submissions, this Court is of the considered
opinion that the learned Courts below ought to appreciate the evidence of police
officials in back drop of the aforesaid defence taken by the petitioner in
examination of accused recorded under Section 313 of Cr.P.C. Now, the point
ought to be ruminated is as to whether the testimonies of these police officials in
connection with the proceeding of prosecution case is trustworthy. Indubitably, the
testimony of a witness is not to be doubted or discarded merely because he
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RAIKWAR
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happens to be a police official, but it is equally well recognized rule of caution that
the Court should look for independent corroboration to the testimony of police
officials in such type of cases. In Makhan Singh Vs State of Haryana, (2015) 12
SCC 247 , Hon’ble Apex Court has observed as under :-
“10. For recording the conviction, the Sessions Court as well
as the High Court mainly relied on the testimony of official
witnesses who made the recovery i.e. H.C.Suraj Mal, PW 2
and Inspector Raghbir Singh,PW 6, and found them
sufficiently strengthening the recovery of the possession from
the appellant. In our considered view, the manner in which
the alleged recovery has been made does not inspire
confidence and undue credence has been given to the
testimony of official witnesses, who are generally interested
in securing the conviction….. Though it is well settled that a
conviction can be based solely on the testimony of official
witnesses, condition precedent is that the evidence of such
official witnesses must inspire confidence…..”
16. The above precedent being adjudicated with reference to Narcotic
Drugs and Psychotropic Substances Act, 1985, is also applicable as a guideline in
the instant case of Excise Act, 1915. Here, it is also worth to note that the charge
against the petitioner/accused in the case at hand, is punishable with the minimum
punishment. In this context, the principle laid down by Hon’ble Supreme Court
rendered in Makhan Singh (supra) , is also condign to quote here :-
“16……It is a well-settled principle of the criminal
jurisprudence that more stringent the punishment, the more
heavy is the burden upon the prosecution to prove the
offence…..”
17. In the regard, relevant portion of another judgment of Hon’ble Apex
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Court Ritesh Chakarvarti Vs. State of M.P., (2006) 12 SCC 321 is worth to be
quoted here wherein Hon’ble Apex Court endorsing its another judgment rendered
in Mousam Singha Roy Vs. State of West Bengal, (2003) 12 SCC 377 ordained as
under :-
“It is also a settled principle of criminal jurisprudence that the
more serious the offence, the stricter the degree of proof,
since a higher degree of assurance is required to convict
the accused.”
18. In the instant case, Section 34(2) of the Act is punishable by minimum
punishment of 01 year alongwith fine of Rs.25,000/-. Hence, there is requirement
of higher degree of proof which must inspire confidence with regard to the
authenticity of the prosecution case.
19. Undoubtedly, in the case at hand, other police witnesses have
supported the prosecution case in different words but they are full of
contradictions. It is also worth to mention that all of the prosecution witnesses
have not specifically supported the fact that the vehicle was having counterfiet
mark used by a public servant. Such type of lacuna, would be fatal not only for the
charges of having counterfiet mark used by a public servant but also for the whole
prosecution case. Even with regard to the seizure of counterfiet mark, no question
has been suggested by the public prosecutor to independent witnesses namely
Sanjay, Driver (PW-1) & Santosh (PW-2).
20. Similarly, another material contradiction is available with regard to the
type of vehicle. Subhash (PW-3) in para No. 5 has deposed that vehicle was a
pessenger vehicle not a loading vehicle. He also conceded that the vehicle contains
seats for passengers and not stated anything that there was no back seat for
passenger while Jitendrasingh (PW-4) has narrated in para 7 of his cross-
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examination that in said vehicle there was no seat on back side for sitting, the
vehicle only contains seat in front line. There are also other contradictions
available in testimonies of police officials which creates suspision upon the
prosecution case.
21. Furthermore, there is no proof of the fact as to whether the said liquor
was deposited in malkhana or not ? No mark of such specimen seal is affixed
while sealing the recovered countrymade liquor. In view of law laid down by this
Court, sample seal is required on the seizure memo. Certainly it is signed by
Seizure Officer but it should be fullfilled by specimen seal on seizure memo.
There is specific column of specimen seal on column no. 13 in seizure memo
(Ex.P/1). The petitioner has also placed his reliance in the case of Raju Dubey v.
State of M.P. , reported as 1998(1) JLJ 236 , wherein it is held that the seized
contraband should be sealed and sent to the Magistrate for sanction, and if the
contraband is not sealed on the spot, the seizure memo becomes doubtful. The
case at hand is related to countrymade liquor but also applicable for the seizure of
contraband especially when only samples were sent for FSL analysis.
22. So far as the statement of Ramesh Borasi, Sub-Inspector (PW-6) is
concerned, he has stated that he had taken 4 quarters for sampling from one box
and other 4 quarters from another box, but not taken any quarter for sampling from
other boxes and sealed them separately but the said samples have not been placed
before the trial Court. Moreover, no other police witnesses viz. Subhash (PW-3),
Jitendrasingh (PW-4) and Vinod Kumar (PW-5) have expressed anything in this
regard. As such, the statements of police officials are full of contradictions.
Nevertheless, such type of contradictions would not be taken as material
contradictions, if the case is supported by independed witnesses.
23. As long as, the case is not supported by independent witnesses and
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when the case is only relied upon police officials, there should be concrete quality
of evidence inspiring confidence. So that, accused can be convicted on the basis of
police statements. In this context, following excerpts of the judgment of this Court
rendered in Samrath Madhuria v. State of Madhya Pradesh, 2005(2) MPLJ 11 , is
relevant to refer here :-
“5…So, the standard for judging the deposition of police
officers and any other public man shall also differ and such
minor discrepancies might be of greater importance while
judging the deposition of police officers which could be
ignored in case of other witnesses. Judging from this angle,
the testimonies of the prosecution witnesses could not be
safely relied…”
24. Besides that, another limb of submission has also been placed by the
petitioner and it is demurred that even if it is assumed that 08 quarters have been
sent for FSL analysis, other seized material would not be treated as illegal
material. In this regard, learned counsel for petitioner has relied upon the judgment
in the case of Babulal Vs. State of M.P. reported in 2006 (1) MPLJ 317 wherein
this Court, placing reliance upon the judgment of Hon’ble Apex Court rendered in
Gaunter Edwin Kircher Vs. State of Goa reported in 1993 CriLJ 1485 viewed that
the concerned authority must sent entire of the seized contraband or sufficient
quantity therefrom by way of samples for analysis.
25. The attention of this Court has been drawn towards another judgment
of this Court rendered in Jaisingh Vs. State of M.P., 2019 LawSuit (MP) 260
wherein this Court has distinguished the law down in Babulal (supra) and viewed
that all the seized contraband are not required to be tested for carrying out
analysis. However, in the case of Jaisingh (supra) , a report of excise officer was
attached with the case wherein it has been stated that seized liquor was subjected
to physical test which included smelling of liquor and tasting the same and other
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examination was litmus paper test. It has been mentioned that on dippling litmus
paper in samples of Gin and Whiskey, the same did not change colour. Such tests
apart, seized liquor was also subjected to thermometer and hydrometer tests.
Undisputedly, an Excise Officer, who is expert with regard to investigate quality
of liquor, can test the remaining liquor seized from vehicle by litmus paper test and
give his opinion as to whether seized liquor is original liquor or not.
26. However, in the case at hand, neither any Excise Officer has been
adduced by the prosecution nor any report has been produced with regard to the
examination of said liquor. It is also worth to mention that there is no name of
company and other significant sign is placed by prosecution, through which it can
be assumed that the seized material was liquor. Hence, the law laid down in
Jaisingh (supra) is not applicable to this case. In this regard, the view laid down in
the case of Sumit Tiwari Vs. State of M.P., 2008 LawSuit (MP) 1267, is also
worth mentioning wherein the Co-ordinate Bench of this Court has again placed
reliance in Gaunter Edwin Kircher (supra) and endorsed the law laid down in
Babulal (supra) .
27. The case at hand, is related to countrymade liquor and only 08 quarters
have been said to be sent for FSL Examination. There is no report of an Excise
Officer with reference to authentication or confirmation of the fact that said
contraband was liquor. That apart, the seizure of the said contraband has not been
supported by any independent witness and the testimonies of police officials is
having material contradictions and omissions which goes to the root of the case. In
view of these reasons, this Court is of the considered opinion that the petitioner is
entitled to be given benefit of doubt.
28. In the wake of the aforesaid analysis, the findings of the learned trial
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Court as well as learned Appellate Court regarding conviction of the petitioner
under Section 34(2) of the Act, 1915, Sections 39/192, 146/196, 3/181 of M.V.
Act and Section 484 of IPC is found perverse and against the propriety, legality
and correctness. Consequently, it deserves to be set aside.
29. In the result thereof, the present revision filed by the petitioner is
hereby allowed, having set aside the impugned judgment, the petitioner is
acquitted from the charges under Section 34(2) of the Act, 1915, Sections 39/192,
146/196, 3/181 of M.V. Act and Section 484 of IPC. The fine amount, if any
deposited by the petitioner shall be returned to him accordingly. The petitioner is
on bail. His bail bonds would be discharged accordingly.
30. A copy of this order be sent to the trial Court concerned for necessary
compliance.
31. Pending application, if any, shall be closed.
32. With the aforesaid, the present revision stands disposed off.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 1/6/2025
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