Ishwari Bai Mahar Vs State Of Chhattisgarh

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Digitally signed by ALLENA ANJANI KUMAR Date: 2025.10.16 17:08:30 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRR No. 984 of 2016

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Ishwari Bai Mahar Wd/o Late Shri Pramod Mahar, Aged About 32 Years R/o Village Arkar, Police Station - Gurur, District Balod Chhattisgarh. ... Applicant

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versus

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State Of Chhattisgarh Through Police Station Gurur, District Balod Chhattisgarh

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... Respondent

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For Applicant : Shri Amit Kumar Sahu, Advocate. For Respondent/State : Dr. Surendra Kumar Dewangan, P.L.

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(HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)

Order on Board

16/10/2025

Heard.

The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 30.09.2016 passed in Criminal Appeal No.77/2016 by the 1st Additional Sessions Judge, Balod (C.G.), whereby the appeal filed by the applicant is dismissed while affirming the judgment dated 07.07.2016 passed in Criminal Case No.1472/2015 by the Chief Judicial Magistrate, Balod 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 23.09.2015, the concerned Superintendent of Police received a complaint from Sarpanch and also residents of

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village Arkar that the applicant was engaged in illegally making the Mahua liquor and selling the same. On receipt of such complaint, he rushed to the spot accompanied by the staff and issued notices under Section 160 Cr.P.C to the Sarpanch Khemlal Dewangan and Up-Sarpanch Shivakumar Sinha and thereafter seized 7 bulk liters of Mahua liquor in 2 jerrycan situated in front of the house of the applicant from the applicant vide Ex.P.1 and issued notice under Section 91 of Cr.P.C. to produce legal documents, which the applicant could not produce. F.I.R. vide Ex.P.11 and Ex,.P.12.was lodged against the applicant. Applicant was arrested on 23.09.2015. The seized article was sent for chemical examination and upon examination, vide Ex.P.8 it was found to be hand-made Mahua liquor.

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After completion of investigation, charge sheet under Section 34 (2) was filed before the Chief Judicial Magistrate,Balod. The applicant abjured her guilt and pleaded innocence. Statement of the accused/applicant was also recorded under Section 313 of Cr.P.C. 4. Learned trial Court and the appellate Court, after appreciation of oral and documentary evidence, convicted and sentenced the applicant as mentioned in opening paragraph. Hence, this revision.

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Learned Counsel appearing for the applicant submits that the finding of conviction and sentence recorded by both the trial Court and the appellate Court, without appreciating the evidence available on record, is erroneous. The prosecution has also failed to establish its case beyond reasonable doubt. He further submits that in the seizure memo (Ex.P.1), the alleged liquor was said to be seized on 23.09.2015 whereas the seized alleged liquor was sent for examination on 28.09.2015, thus there was delay of 6 days, however, the prosecution has failed to explain as to how such delay of 6 days has occurred nor the seized article was found in sealed condition. It is also submitted by him that there are material omissions and contradictions occurred in the statements of the prosecution witnesses. He further contends that there was no entry in P.S. Malkhana register to show that on which date, the seized property was sent for examination to the Excise

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Sub-Inspector. 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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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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I have heard learned counsel appearing on behalf of the parties and perused the record minutely.

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As per the statement of P.W.7 Sourabh Dwivedi, Investigating Officer, on 23.09.2015, after receipt of complaint with respect to illegal activity of the applicant in making and selling liquor, he along with staff rushed to the village Arkar where he issued notices to the Sarpanch Khemlal (P.W.2) and Up-Sarpanch Shiv Kumar (P.W.3) and thereafter reached to the lane of house of the applicant and upon seeing them, the applicant tried to run away from the spot but lady constables caught hold of her, who held the two jerrycan and tried to hid them. After that, the applicant was asked to produce the jerrycan, which the applicant held and upon seeing the jerrycan through torch light, he found one jerrycan containing five liters Mahua liquor and from another jerrycan, which contains two liters Mahua liquor. Thereafter, the applicant was given notice under Section 91 of Cr.P.C. to produce the documents, which the applicant could not produce and then prepared Ex.P.1 (seizure memo) & map vide Ex.P.4 and seized the said liquor before the witnesses. In cross-examination, he admitted that the alleged liquor was not seized from inside of the house, but it was seized from the public place frequented by people and it is also shown in Ex.P.4. Seizure witness, namely Khemlal (P.W.2), Gram Sarpanch has stated that the Police personnel did not give him any notice and they seized only 5 liters of Mahua liquor was seized. Shiv Kumar, one more seizure witness (P.W.2) has stated that he witnessed the seizure proceedings but at the time of seizure proceedings, the applicant/accused was selling liuqor in front of her house.

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A bare perusal of above statements of the witnesses would reveal that there are material contradictions and omissions in their statements as according to P.W.7 Sourabh Dwivedi, Investigating Officer, the alleged liquor was seized in a public place frequented by people whereas, as per the seizure witnesses, namely, Khemlal and Shiv Kumar (P.W.2 & P.W.3), the liquor was allegedly seized while it was being sold. One more witness, i.e., P.W.1 Pannalal has stated that no such liquor was taken out from the house of the applicant. This apart, P.W.6 Punnalal, Head Constable has stated that he brought the original Malkhana register with respect to seizure of article, which is exhibited as Ex.P.9 and further stated that after examination, the alleged seized article was returned on 14.10.2015 along with its report. According to him, the seized article was sent for its examination to the Excise Sub-Inspector on 28.09.2015, to which, P.W.5 Umesh Agrawal, Excise SubInspector has also stated that he received the seized article through one Constable Tomanlal Rana on 28.09.205. However, no explanation was offered by the prosecution as to why delay in sending the seized article has occurred. Moreover, the copy of Malkhana Panji could not show that the alleged seized property, which was kept in Thana Malkhana was not in “sealed” condition and that, on which date the property was taken out from Malkhana for sending its examination to the Excise Sub-Inspector has also not been mentioned.

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It is bounden duty of the prosecution to keep the alleged seized property in a “sealed” condition and kept 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.

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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 Officer in charge of

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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.

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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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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 her benefit of doubt. Fine if paid, shall be refunded to the applicant.

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Consequently, the revision is allowed. The applicant is reported to be on bail and her bail bond shall remain in force for a period of six months from today in view

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of provision of Section 481 of B.N.S.S. 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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Anjani

Ishwari Bai Mahar v. State Of Chhattisgarh

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Ishwari Bai Mahar v. State Of Chhattisgarh

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