Allowed

Naresh Kumar v. State of Chhattisgarh

Chhattisgarh HC15 Oct 2024CRR/359/2012

Case brief

AI extract

What is this about?

The High Court allowed the revision petition against a conviction under the Chhattisgarh Excise Act. The court found that the prosecution failed to comply with statutory requirements regarding seizure seals, safe custody, and witness consistency, thus setting aside the conviction and ordering the applicant's acquittal.

What did the court decide?

Conviction and sentence set aside; applicant acquitted; fine refunded if paid; applicant granted bail for six months.

Naresh Kumar Vs State of Chhattisgarh — Cheque Dishonour | Chhattisgarh HC (2024)

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2024:CGHC:40693

NAFR

Digitally signed by PRAKASH KUMAR Date: 2024.10.22 13:17:18 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRR No. 359 of 2012

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Naresh Kumar S/o Heeralal Satnami, aged about 21 years, R/o Bhilaidadar, PS Bagbahra, Distt. Mahasamund, Chhattisgarh,

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... Applicant

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versus

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State of Chhattisgarh Through The Thana Incharge Arakshi Kendra Bagbahra, Distt. Mahamund, Chhattisgarh,

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... Respondent

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For Applicant : Mr. Vikas Pradhan, Advocate For State/Respondent : Ms. Nand Kumari Kashyap, Panel Lawyer

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Hon'ble Shri Justice Radhakishan Agrawal,

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Judgment on Board

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16.10.2024

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Heard.

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1. The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 22.05.2012 passed in Criminal Appeal No.46/2011 by the First Additional Sessions Judge, Mahasamund (C.G.), whereby judgment dated 14.02.2011 passed by the

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Judicial Magistrate First Class, Mahasamund (C.G.) in Criminal Case No.583/2010, the applicant has been convicted under Section 34(1)(a) of the Chhattisgarh Excise Act, 1915 and sentenced to undergo RI for six months and to pay fine amount of Rs.5,000/- and in default of payment of fine, additional RI for one month.

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2. Case of the prosecution, in brief, is that on 14.06.2010 S.D. Baghel (PW-4), Sub-Inspector was on patrolling duty at that time, he received a secret information that the applicantaccused is in possession of illegal liquor at village Bhilaidadar. It is further alleged that on the basis of said information, SubInspector made raid and in front of the house of the applicant recovered 40 quarter (bearing 180 ML each quarter) country made liquor, which was kept in a plastic bag and the same was seized in presence of witnesses, namely, Purshottam (PW-2) and Kishun Ram (PW-5) vide seizure memo Ex.P-2 prepared at 20:45 O’Clock and on the same date at about 20:55 O’Clock, Spot Map (Ex.P-4) was prepared and Dehati Nalishi (PW-7) was recorded. Thereafter, on 14.06.2010 at 22:15 O’Clock, FIR (Ex.P-5) was registered. The seized article was sent for examination on 15.06.2010 which was examined by Nageshwar Mishra (PW-01), Excise Sub-Inspector. On being examined, the seized article was found to be country made plain liquor.

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3. After completion of investigation, charge sheet under Section 34 (A) of the Excise Act was filed before the Court of JMFC,

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Mahasamund. 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 5 witnesses. Statement of the accused/applicant was also recorded under Section 313 of Cr.P.C.

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4. Learned trial Court, after appreciation of oral and documentary evidence, convicted the applicant under Section 34 (1) (a) of the Chhattisgarh Excise Act, and sentenced him as mentioned in paragraph 1 of this judgment. The said judgment was challenged by the applicant in criminal appeal, and the Appellate Court, vide judgment dated 22.05.2012 has afÏrmed the conviction and sentence imposed by the trial Court. Hence, this revision.

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5. Learned Counsel appearing for the applicant submits that the prosecution has failed to establish its case beyond reasonable doubt. He further submits that Purshottam (PW-2), Home Guard, posted at Police Station Bagbahara, who is cited as witness of seizure proceedings, has turned hostile and has stated that at the time of seizure at Police Thana, the applicant-accused was not present there. Referring to the seizure memo (Ex.P-2), it is further submitted that the alleged articles were kept in plastic bag but as per the statement of Kishun Ram (PW-5), it has not been stated by him that the articles were in a box, thus, the statement of the seizure witnesses is contradictory and thus, the prosecution witnesses have not supported the case of

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prosecution. It is also submitted by him that the seizure memo (Ex.P-2) also does not bear any sample seal. He further submits that the statement of Nageshwar Mishra (PW-1), Excise Inspector is contradictory as he has stated that on 15.06.2010, the alleged 40 bottles of liquid was brought before him for examination by police station Bagbahara, but in his examinationin-chief, this witness admitted that in the examination letter neither the date nor name of the constable who has brought the alleged articles were mentioned. He further admitted that the said liquid was brought before him on 22.05.2010. In the test report Ex.P-1, proper sample seal is not afÏxed and the same is not proved by the prosecution. He further contends that the prosecution has not produced any evidence to show that the seized property was kept in safe custody and no Malkhana register has also been produced to show that the seized property was kept in Malkhana 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 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 .

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6. On the other hand, learned State Counsel opposed the revision, while supporting the impugned judgment of conviction and order of sentence.

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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 ofÏcer, S.D. Baghel (PW04), Sub-Inspector, on 14.06.2010, on the basis of secret information, he reached to the village Bhilaidadar accompanied by other staff members and in front of house of the applicant Naresh Satnami, seized total 40 bottles of liquor (each 180 ML) which was kept in a plastic bag and the same was seized vide seizure memo (Ex.P-2) before the seizure witnesses, namely, Puroshottam (PW-2) and Kishun Ram (PW-5) and the same was sealed in front of said witnesses and thereafter, Dehati Nalishi (Ex.P-7) was recorded. Subsequently, FIR (Ex.P-5) was registered in the police station Bagbahara.

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9. Purshottam Ram Chauhan (PW-2), posted as Home Guard at Police Station Bagbahara, who is cited to be a seizure witness has stated that the alleged liquor was seized in front of him in the police station and at that time, applicant was not present there. He also stated that spot map (Ex.P-4) was not prepared before him. In his cross-examination, this witness has specifically admitted that the alleged liquor was seized in the police station and at that time accused-applicant was not present there. As such, this witness has not supported the case of prosecution and has turned hostile.

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10. Kishun Ram (PW-5), who is also cited as seizure witness, has

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stated that the police has seized one box of liquor from the applicant. This witness has not stated anywhere in his statement that the seized liquor was kept in a plastic bag. Thus, there is material contradictions regarding the description of the seized articles. As the above mentioned two seizure witnesses have not supported the seizure proceedings, the statement of the investigating ofÏcer, S.D. Baghel (PW-04) appears to be contradictory.

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11. Seizure memo (Ex.P-2) also does not transpire that after said seizure of liquor, seal was afÏxed. In Ex.P2 seizure memo at Column Nos. 12 & 13, there was no sample seal afÏxed and it was also not proved by the prosecution that signature of the witnesses has 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 seizure memo, there was no sample seal afÏxed.

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12. As per the statement of Nageshwar Mishra (PW-01), Excise SubInspector, on 15.06.2010, seized liquor kept in plastic bag was brought to him and after examination, he found that it was country made plain liquor and the test report submitted by him is exhibited as P-1. However, in his cross-examination, he admitted that in the examination letter neither the date nor name of the constable who has brought the alleged articles were mentioned. He further admitted that the said liquid was

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brought before him on 22.05.2010. In the test report Ex.P-1, proper sample seal was not afÏxed and the same was not proved by the prosecution. Further, the prosecution has not produced any evidence to show whether the seized property was kept in safe custody and that no Malkhana register has 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 seal was afÏxed. This apart, the provisions of Section 57 (a) of the Excise Act have also not been complied with by the prosecution.

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13. Dealing with the issue, this Court in the matter of Suresh Kumar (supra) has observed as under:

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“ 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 OfÏcer 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 01-102004. 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

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search to his immediate ofÏcial superior as required under Section - 57 of the Act. Thus, there is total non-compliance of Section-- of the Act.

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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.

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(B) It is not established beyond doubt that the Applicant was found in possession of country made liquor in excess of 25 bulk liters.

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(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.

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(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.

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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.”

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14. By applying the decision to the facts of the present case, this

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Court is of the opinion that the prosecution has failed to prove its case and the conviction of the applicant under Section 34 (1) (a) of the C.G. Excise Act and the sentence awarded thereunder

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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 (1) (a) of the C.G. Excise Act and the sentence awarded thereunder is hereby set aside and the applicant is acquitted of the aforesaid charge. Fine if paid, shall be refunded to the applicant.

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15. 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.

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Sd/-

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(Radhakishan Agrawal ) Judge

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Prakash

Naresh Kumar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Naresh Kumar v. State of Chhattisgarh

Case brief

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