Chattisgarh High Court
Jalesh Chandrawanshi vs State Of Chhattisgarh on 29 April, 2025
1
Digitally
signed by
AKHILESH
AKHILESH BEOHAR
BEOHAR Date:
2025.05.01
10:34:56
+0530
2025:CGHC:19369
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 420 of 2011
• Jalesh Chandrawanshi, S/o Daniram Chandrawanshi, aged about 40
years, R/o Village Majgaon, P.S.-Kawardha, Distt.-Kabirdham, C.G.
...Applicant
versus
• State of Chhattisgarh, Through District Magistrate Kawardha, District
Kabirdham, C.G.
... Non-applicant
For Applicant : Ms. Indira Tripathi and Mr. Manish Kumar Sahu,
Advocates.
For Non-applicant : Ms. Pragya Pandey, Deputy Government
Advocate.
Hon'ble Shri Justice Radhakishan Agrawal
Order on Board
29/04/2025
1.
The present applicant has preferred this criminal revision under
Section 397 read with Section 401 of Cr.P.C. against the order dated
22.07.2011 passed by the Sessions Judge, Kabirdham (Kawardha),
C.G. in Criminal Appeal No.19/2010, whereby the learned Appellate
Court dismissed the appeal, while affirming the judgment dated
17.05.2010 passed in Criminal Case No.142/2010 by the Chief
Judicial Magistrate, Kabirdham (Kawardha), C.G. convicting the
applicant under Section 34(2) of the Chhattisgarh Excise Act, 1915 (for
short, ‘the Act, 1915’) and sentencing him to undergo rigorous
imprisonment for one year and fine of Rs.30,000/-, in default thereof,
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to undergo additional rigorous imprisonment for six months.
2. Case of the prosecution, in brief, is that on 25.01.2010, while Head
Constable-Om Singh (PW-7) was on patrolling, he received a secret
information from the informant that in village Majgaon, 10-15 persons
captured the applicant with illegal liquor. After receiving the said
information, he along with Narendra Chandravanshi, Deepak,
Tarakeshwar, Jaiprakash and others went to the hotel of the applicant
and seized 93 quarters country made liquor, 19 quarters Masala liquor
and 48 quarters of foreign Goa whiskey in three boxes, total 144
quarters (46.80 litres) sealed bottles each containing 180-180 ml.
Thereafter, present applicant was asked to produce the valid
document for possessing said liquor, but he did not produce any
document. After that, Dehati Nalishi (Ex.P-8) was prepared and the
said liquor was seized vide Ex.P-1 and thereafter, FIR (Ex.P-10) was
registered against the applicant under Section 34(2) of the Act, 1915.
3. After completion of investigation, charge sheet under Section 34(2) of
the Act, 1915 was filed before the Court of Chief Judicial Magistrate,
Kawardha, Dhamtari, C.G. 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 7 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(2) 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.
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She further submits that independent seizure witnesses in this case
have not supported the case of the prosecution. She also submits that
prosecution has failed to prove that after seizure proceedings, alleged
property and sample were sealed properly and kept in safe custody.
She also submits that Thana Malkhana Panji has also not been
produced by the prosecution to prove that the alleged property was in
sealed condition. She also submits that seized liquor was not sent for
chemical examination, which makes the prosecution case doubtful. 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. In support of her argument, reliance has
been placed upon a decision of Supreme Court in the matter of
Suresh Kumar vs. State of Chhattisgarh reported in 2006 (3) CGLJ
259.
6. On the other hand, learned State Counsel opposes 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.
8. PW-7 Om Singh, Head Constable, has stated that while he was on
patrolling, he received a secret information from the informant that in
village Majgaon, 10-15 persons caught the applicant in hotel with
illegal liquor. After receiving the said information, he along with other
persons went to the hotel of the applicant and in presence of the
witnesses, seized 93 quarters country made liquor, 19 quarters
Masala liquor and 48 quarters of foreign Goa whiskey in three boxes,
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total 144 quarters i.e. 46.80 litres sealed bottles of liquor each
containing 180-180 ml vide Ex.P-1 and sealed the same at spot. In
cross-examination, he admitted that he seized the liquor from hotel
premises and not from the house. He further admitted that there were
8-10 boys were present along with applicant. He also admitted that
there was no mention in the roznamcha sanha (Ex.P-9) with respect to
seal the seized liquor. He further admitted that he did not send the
seized liquor for its examination. It is further admitted by him that there
was no seal of the department over sample liquor. It is also admitted
by him that the place where he seized the liquor is an open place
which is adjacent to road. However, on the contrary, PW-1 Deepak
witness to seizure, in his cross-examination, admitted that in his
presence, police personnel did not conduct any search and seal
proceedings. He further admitted that he has signed the documents in
police station itself where they took his photo. He also admitted that
along with him, Narendra, Tarkeshwar and Jayprakash etc. also
signed the documents in police station itself and he was unable to
disclose the quantity of seized liquor and thus, has not supported the
case of the prosecution. This apart, PW-3 Narendra Chandravanshi,
another witness to seizure, has stated that police personnel seized the
liquor from the shop of the applicant, but on the contrary, PW-7 Om
Singh, I.O. has stated that he has seized the liquor from the hotel of
the applicant. In cross-examination, he admitted that police alone
entered the spot and seized the alleged liquor and thereafter, they
informed him about the seizure and took his signature over the
document.
Besides above evidence, PW-4 Jay Prakash Chandravanshi, in
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his cross-examination, admitted that for the raid proceedings, about
80 people including him went to the spot. He further admitted that for
the first time, he saw the applicant in police station and he did not see
the applicant at the spot. He also admitted that before him, no liquor
was seized, therefore, he could not state about the quantity. It is also
admitted by him that police personnel did not seize the liquor from the
hotel. Furthermore, PW-2 A.K. Banjare, Excise Sub-Inspector, has
stated that he examined the alleged seized liquor on 01.02.2010
whereas, as per seizure memo (Ex.P-1), liquor was alleged to be
seized on 25.01.2010, however, it is nowhere mentioned that during
that period where the alleged seized liquor was kept.
9. Thus, from perusal of above evidence, it is quite vivid that there are
material inconsistencies in the statement of PW-7 Om Singh, I.O. and
his statement does not corroborate with other prosecution witnesses
and documents available on record with respect to seizure of alleged
liquor. This apart, witnesses to seizure namely PW-1 Deepak and PW-
3 Narendra Chandravanshi have also not supported the prosecution
case. Moreover, PW-7 Om Singh, I.O. has stated that he has seized
the liquor from the hotel, but as per statement of PW-3 Narendra
Chandravanshi police seized the liquor from the shop and not from the
hotel and that the seizure witnesses have also admitted that no
seizure proceedings were conducted in front of them by the police,
thus, making the prosecution story doubtful. Furthermore, PW-2 A.K.
Banjare has stated that he has received 4-4 quarters bottles for
examination, but there is no evidence available on record to show that
4-4 quarters bottles were sent for examination. That apart, perusal of
seizure memo (Ex.P-1) shows that there is no sample seal affixed on
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it in column No.13. Had the seized property was sealed, then sample
seal would definitely have been mentioned in the column No.13 of the
seizure memo. Besides, the prosecution has also not offered any
explanation for the delay 8 days caused in sending the seized article
for its examination nor has produced any evidence to show that where
the seized property was kept in safe custody and that no Thana
Malkhana Panji and other documents have 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 show the
exact place from where the liquor was seized and that no sample seal
was affixed on it. This apart, the provisions of Section 57 (a) of the
Excise Act have also not been complied with by the prosecution.
10. 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– of the Act.
11. Having thus considered the evidence led by the
prosecution, the following points emerge:
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(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.”
11. 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 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 of the
aforesaid charge on the basis of benefit of doubt. Fine, if paid, shall be
refunded to the applicant.
12. 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
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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
Akhilesh
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