Chattisgarh High Court
Juliya @ N. Surendra vs State Of Chhattisgarh on 16 April, 2025
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 778 of 2012
Juliya @ N. Surendra S/o Late Shir N. Prasad Aged About 22 Years R/o Camp-1
Sunder Nagar , P.S. Chhawani , Bhilai ,distt. Durg C.G. ... Applicant
versus
State Of Chhattisgarh, Through - The District Magistrate Durg, Distt. Durg C.G.
... Respondent
Digitally
signed by
ANJANI
KUMAR For Applicant : Ms. Seema Verma, counsel for the applicant.
ALLENA
Date: For Respondent/State : Smt. Smita Jha, Panel Lawyer.
2025.04.17
17:22:28
+0530
(HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)
ORDER ON BOARD
16/04/2025
Heard.
1. The present revision filed under Section 397/401 Cr.P.C. is directed against
the judgment of conviction and order of sentence dated 30.11.2012 passed in
Criminal Appeal No.237/2012 by the 5 th Additional Sessions Judge, Durg (C.G.),
whereby the appeal filed by the applicant is dismissed while affirming the judgment
dated 26.10.2012 passed by the Chief Judicial Magistrate, Durg, in Criminal Case
no.1171/2012 convicting the applicant under Section 34 (2) of the Chhattisgarh
Excise Act, 1915 and sentencing him to undergo R.I. for one year with fine of
Rs.25,000/-, in default to pay fine amount, to further undergo RI for three months.
2. Case of the prosecution, in brief, is that on 21.04.2012 when B.P.Gupta
(P.W.6) of Police Station Chhavni along with Constables was on patrolling duty, at
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Subhash Square at 9.50 am, he received information from informer that the
applicant kept liquor in huge quantity in his motorcycle Hero Honda No.
CG-07/LF/4129 and was waiting for supplying the same before the B.S.P.High
School. On receipt of such information, he rushed to the spot along with staff and
surrounded the applicant. Thereafter, P.W.6 B.P.Gupta seized 26.280 liters of
liquor and motorcycle vide vide Ex.P.1 and from every seized quarter bottles, 2
quarters each were taken out in a white plastic bag for testing and sealed at the
spot and seizure memo was prepared. The seized article was sent for examination
and upon examination, vide Ex.P.23 it was found to be country made liquor.
3. After completion of investigation, charge sheet under was filed before the
Chief Judicial Magistrate, Durg. 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 and sentenced the applicant as mentioned
in opening paragraph. Hence, this revision.
5. Learned Counsel appearing for the applicant submits that both the learned
Courts have not properly appreciated the evidence on record. She further submits
that independent witnesses, P.W.1 Mahendra Ramteke and P.W.2 Ravi have not
supported the prosecution case. Further, as per Malkhan Panji (Ex.P.10), the
alleged seized liquor was not sealed properly. It is also submitted by her that no
Malkhana register was produced before the Court nor any person, who deposited
the seized article, has not been examined by the prosecution. She further
contends that prosecution has failed to prove the fact that after seizure of liquor,
where the seized property was kept in safe custody. 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
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her arguments, she placed his reliance upon a decision rendered in the matter of
Suresh Kumar vs. State of Chhattisgarh reported in 2006 (3) CGLJ 259.
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. As per the statement of P.W.6 B.P.Gupta, on 21.04.2012 when he along with
staff was on patrolling duty, at that time at 9.50 am, on receipt of information from
informer, he rushed to the spot along with witnesses Mahendra Kumar Ramteke
(P.W.1) and Ravi (P.W.2), after issuing notices to them. Thereafter, he surrounded
the applicant and taken him into custody and from the possession of the applicant,
total 146 quarters of country made liquor, which was kept in 3 white sacks, were
seized in front of witnesses and prepared seizure memo Ex.P-1. He has further
stated that from the seized liquor, he took out 2 – 2 bottles of liquor on the spot for
testing and sealed the same. However, on the contrary, independent witnesses,
namely Mahendra Ramteke (P.W.1) and Ravi (P.W.2) specifically admitted in their
depositions that their signatures have been obtained in blank papers but before
them no liquor was seized from the possession of the accused/applicant. That
apart, the said two independent witnesses did not recognise the applicant in Court.
Thus, it is clear from the above evidence that P.W.1 and P.W.2 Mahendra Ramteke
and Ravi that they did not support the version of P.W.6 B.P.Gupta, A.S.I., thus
making the prosecution story doubtful.
9. P.W.6 B.P.Gupta further admitted that there is no mention with respect to
taking sample from the seized liquor and that sample has been sent for
examination, in Exs. P.10 & 12, Thana Malkhan Panji & Nakal Wapsi. He further
admitted that liquor recovered from the scene of incident was not sent for testing
but it was sent for testing only after it being brought to the Police Station through a
clerk. Although it is clear from perusal of Ex.P.10 that the alleged seized property
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was deposited, but it does not bear any seal and that 6 sample bottles took out
from alleged seized liquor was not found to be sealed. Moreover, as per evidence
of P.W.4 G.P.Prajapati, Excise Sub-Inspector, 6 sample bottles were brought by
Constable Krishna Kour before him for its examination and after examination, he
found it to be country made liquor, however, this witness admitted that there is no
mention in Ex.P.23 that whether samples of liquor brought in different bottles are
sealed in proper condition or not, meaning thereby that the samples took out from
the seized liquor were not properly sealed, which makes the prosecution case
suspicious.
10. If the evidence of above witnesses is scanned, then it can be inferred that
there is no evidence on record to show where was the alleged seized article along
with sample bottles kept and whether it was kept in safe custody and whether the
seized article was sealed properly. The seized article was also not produced
before the Court. Moreover, samples of 6 bottles of liquor took out from total
seized liquor, which were alleged to be sealed has not been mentioned in Thana
Malkhana Panji Ex.P.10.
11. It is bounden duty of the prosecution to seal the seized property after taking
samples 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. This apart, the provisions of Section 57 (a) of the
Excise Act have also not been complied with by the prosecution.
12. 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
5custody 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:
(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.”
13. 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 by giving
him benefit of doubt and he shall be set at liberty. Fine if paid, shall be refunded to
the applicant.
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14. 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
Anjani