Krishna Kumar Vs State Of Chhattisgarh

1. State of Chhattisgarh Through The District Magistrate, Bilaspur, Chhattisgarh, 2. The Excise Department Through Excise Officer, Excise Circle, Kota, District – Bilaspur, Chhattisgarh,

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... Respondent

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For Applicant : Mr. Harish Khuntiya, Advocate For Respondent/State : Mr. Deepak Kumar Singh, Panel Lawyer

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Hon'ble Shri Justice Radhakishan Agrawal Order on Board

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20.06.2025

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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 25.07.2016 passed in Criminal Appeal No.177/2016 by the Sessions Judge, Sessions Division, Bilaspur (C.G.), whereby judgment dated 03.11.2015 passed by the Judicial Magistrate First Class, Kota, District Bilaspur (C.G.) in Criminal Case No.J301/2014, the applicant has been convicted under Section 34(1)(A) of the Chhattisgarh Excise Act, 1915 (in short ‘the Act of 1915’) and sentenced to undergo RI for one year and to pay fine amount of Rs.10,000/- and in default of payment of fine, additional RI for one month. The learned Appellate

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Court affirmed the judgment passed by the learned Trial Court, hence, this revision.

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2. Case of the prosecution, in brief, is that on 13.03.2014, C.P. Singh (PW-03) Excise Sub-Inspector, Kota (C.G.) along with other staff went for patrolling to village Mohdi and on the basis of information received from the informant that the applicant is involved in keeping and selling the liquor illegally, and without obtaining search warrant reached to the spot and seized 1 liter of country made Mahua liquor kept in plastic bag from house of the applicant and the same was seized in presence of the witnesses i.e. Rajesh Kumar Bhardwaj (PW-01) and Ram Prasad Chelke (PW-02) at about 10:30 AM. On being examined, the seized article was found to be country made Mahua liquor.

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3. After completion of investigation, a complaint was filed by the Excise SubInspector, Kota, District – Bilaspur in District Case No.318/2014. 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 3 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) and sentenced him as mentioned in para 1 of this order. The said judgment was challenged by the applicant in appeal, however, the Appellate Court, dismissed the said appeal and maintained the order of conviction and sentence.

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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 article which was seized from the possession of the present applicant was not properly sealed. This apart, the mandatory provisions contained in Section 54 of the Act of 1915 has not been duly complied with. He further submits that the independent witnesses, namely, Rajesh Kumar (PW-01) and

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Ram Prasad (PW-02) have not supported the case of the prosecution. 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. Lastly, he submits that the fine amount has already been deposited before the trial Court by the applicant.

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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 C.P. Singh (PW-3), Excise Sub-Inspector, on 13.03.2014, he along with his staff went for patrolling in village Mohdi and upon reaching there he received a secret information from the informant that a person (applicant herein) had kept liquor illegally in his house. Upon receiving said information, he conducted raid in the house of the applicant where the applicant was found in possession of approximately one liter of raw mahua liquor kept in a plastic bottle. Upon testing the same using litmus paper, the same appeared to be raw mahua liquor and thereafter, the same was seized vide seizure memo Ex.P-1. However, this witness in his crossexamination, admitted that the ownership documents of the house from where the alleged articles were seized, have not been obtained from any Revenue Officer. He further admitted that the articles which were seized, were not properly sealed.

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9. This apart, one of the seizure witnesses, namely, Rajesh Kumar Bhardwaj (PW-01) has stated in the Court statement that the police has seized the alleged article from the house of the applicant and he has put his signature in the seizure memo (Ex.P-1). However, this witness in his cross-examination admitted that on the date of incident, when he reached near the house of the

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applicant, the police had already done all the paper works and thereafter, they asked him to put his signature on the said papers. He further admitted that the Officials of Excise Department showed him the seized bottle and told him that it was liquor. However, he admitted that he cannot tell what material was present in the said bottle.

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10. In the same manner, another seizure witness, namely, Ram Prasad Chelke (PW-02) has deposed that on the date of incident, when he was returning after taking bath from the river, on the way, the Excise Officials told him to sign some documents like seizure memo (Ex.P-1), search report (Ex.P-2) etc. In his cross-examination, this witness further admitted that when he was returning after taking bath in the river, at that time, near village square, the Excise Officials told him to put signature in the documents of Ex.P-1 to Ex.P6. He further admitted that when the Excise Officials told him to sign the documents, at that time, the applicant was not present there, further the prosecution witness, namely, Rajesh was also not present there.

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11. On perusal of the evidence available on record particularly the statements of prosecution witnesses, it reveals that the statement of the investigating officer, C.P. Singh (PW-03) is not duly corroborated with the statements of the seizure witnesses. This apart, the article which was seized from the possession of the present applicant was not properly sealed by the Excise Sub-Inspector. Moreover, the seizure witnesses Rajesh Kumar (PW-01) has specifically stated that the Excise Officials had already done all the paper works before he put his signatures on the said papers, further, he was also not aware whether the liquid which was present in the bottle was of liquor. Thus, there appears contradictions and omissions in the statements of the prosecution witnesses. Further, the seizure witnesses have also not supported the case of prosecution. It is bounden duty of the prosecution to seal the seized property, but the prosecution has failed to discharge its duty.

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The prosecution has also failed to prove the ownership of the house of the applicant from where the liquor was seized. This apart, the provisions of Section 54 of the Excise Act which states that :

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“54. Power to search without a warrant. - Whenever any Excise Officer not below such rank as the State Government may, by notification, prescribe, has reason to believe that an offence under Section 34, Section 35, Section 36, Section 36-A, Section 36-B, Section 36-C, Section 37, Section 38, Section 38-A, Section 39, or Section 40 has been, is being or is likely to be, committed, and that a search-warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence he may after recording the grounds of his belief, -

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(a) at any time, by day or night, enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

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(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

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However, in the present case, from perusal of the evidence available on record, it is evident that the Excise Officer, C.P. Singh (PW-03) has miserably failed to comply with the procedural safeguards mandated under the Act.

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12. Further, dealing with the issue, this Court in the matter of Suresh Kumar

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(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 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

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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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13. By applying the decision to the facts of the present case, this Court is of the

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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 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 Act of 1915 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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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

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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 )

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Judge

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Prakash

Krishna Kumar v. State Of Chhattisgarh

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Krishna Kumar v. State Of Chhattisgarh

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