Sanjay Banjare Vs State Of Chhattisgarh

1. The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 09.11.2016 passed in Criminal Appeal No.155/2015 by the Sessions Judge, Sessions Division, District – Bilaspur (C.G.), whereby judgment dated 01.10.2015 passed by the Chief Judicial Magistrate, District – Bilaspur (C.G.) in Criminal Case No.7283/2015 has been affirmed by the learned Appellate Court

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wherein the applicant has been convicted under Section 34(2) of the Chhattisgarh Excise Act, 1915 and sentenced R.I. for 2 years & fine of Rs.25,000/-, in default of payment of fine, additional R.I. for 6 month.

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2. According to the prosecution, on 21.07.2015, during routine patrolling duty, Excise Sub-Inspector Nidhish Koshti (PW-03) received secret information and conducted a search of the accused’s poultry farm in the presence of witnesses Jagdish (PW01) and Ajay (PW-02). During the search, 150 bulk liters of Mahua made country liquor and 2000 kilograms of Mahua Lahan were recovered from the poultry farm. Thereafter, the Excise SubInspector seized the recovered liquor and mahua lahan in the presence of the witnesses and prepared a seizure memo (Exhibit P-5) and prepared spot map (Ex.P-7). Thereafter, offence was registered against the accused/applicant under the Chhattisgarh Excise Act, 1915, and he was arrested, subsequently, statements of the witnesses were recorded.

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3. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, District - Bilaspur. The applicant abjured the 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 and sentenced the accused-applicant. The

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said judgment was challenged by the accused in criminal appeal, however, the Appellate Court, vide judgment dated 09.11.2016 affirmed the conviction and sentence passed by the Trial Court. Hence, this revision.

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5. Learned counsel for the applicant submits that the Trial Court as well as the Appellate Court, without properly appreciating the evidence available on record, were not justified in convicting and sentencing the applicant for the aforesaid offence. He further submits that there are material contradictions and omissions in the statements of the prosecution witnesses and their statements do not corroborate with each other, this apart, both the seizure witnesses have turned hostile. It is further contended that there is no evidence available on record which could show that the seized property was kept in “sealed” condition nor sample seal is affixed in the seizure memo. As such, the prosecution has failed to establish its case beyond reasonable doubt. On these premises, it is prayed by counsel for the applicant that applicant be acquitted from the offences leveled against him. 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 contrary, learned State Counsel, while supporting the impugned judgments, submits that the learned Trial Court as well as Appellate Court have rightly convicted and sentenced the

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applicant and there is no illegality or infirmity in the same warranting interference by this Court.

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7. I have heard learned counsel appearing on behalf of the parties and perused the record.

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8. As per the statement of Nidish Koshti (PW-3), Excise SubInspector, on 21.07.2015, upon receiving information, he, along with his staff, reached Village Nagaradih and conducted a search of the accused’s poultry farm in the presence of independent witnesses. During the search, three plastic jerrycans (50 litres each) containing a liquid resembling mahua liquor were recovered. In addition, ten jars containing Mahua Lahan (total approximately 2,000 kg) were also seized from the poultry farm. Thereafter, a seizure memo (Ex. P-5) was prepared on the spot. The seized liquid was examined and, as per Exhibit P-4, it was found to be mahua liquor. This witness further stated that on the same day, i.e., 21.07.2015, he submitted an application to the Station House Officer, Police Station Chakarbhata, requesting that the seized liquor be kept in the Malkhana for safe custody. The original copy of the said application was sent to the Police Station, and a copy thereof is exhibited as Ex. P-11. However, upon perusal of Ex. P-11, it is noted that the property was returned due to lack of storage space.

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Moreover, in his cross-examination, the witness admitted that Village Nagaradih falls within the Excise Circle, Bilha, and that on the date of the incident, he was not posted in the Bilha Circle. He

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further admitted that on the said date, Shri S.K. Dwivedi was posted as Excise Sub-Inspector in the Excise Circle, Bilha. Although the witness stated that he had visited the Bilha area for inquiry pursuant to an order of the Collector, Bilaspur, but copy of such order has not been placed on record. Therefore, from the admissions made by this witness, it appears that the raid conducted by him in Village Nagaradih was outside his jurisdiction. Furthermore, he has admitted that he had mentioned in seizure memo (Ex.P-5) that Mahua Lahan was destroyed after taking the samples, but the same was not done under any specific order, and he had voluntarily decomposed the same to prevent pollution. He further admitted that in Ex.P-11, due to inadvertence, it has been mentioned that the Mahua Lahan was kept safely in the Police Station. In light of these inconsistencies and admissions, the testimony of this witness is not duly corroborated by other evidence on record and appears to be doubtful.

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9. Jagdish (PW-01) and Ajay Kumar (PW-02) are the seizure witnesses of the alleged recovered property. These witnesses have categorically stated that on the date of the incident, they had gone to the Excise Office, Bilaspur, to secure the release of Manendra Ratre. At that time, the Excise officials obtained their thumb impressions and signatures on certain papers. In their cross-examination, both witnesses admitted that their thumb impressions and signatures were obtained at the Excise Office in Bilaspur and not in their village. From their statements, it is

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evident that they have not supported the prosecution case and have turned hostile.

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10. Seizure memo (Ex.P-5) also does not transpire that after seizure of liquor, no seal was affixed and that where was the seized liquor or the alleged samples kept in safe custody. Ex.P.5 seizure memo shows the signatures of the witnesses, but there was no sample seal affixed 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, there was no sample seal affixed on it.

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11. The prosecution has not offered any explanation nor has produced any evidence to show that where 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. 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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12. 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

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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 said 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, and

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considering the material facts as discussed above, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. Therefore, 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. 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 extending him benefit of doubt and he 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 481 of the BNSS, 2023. 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)

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Judge

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Prakash

Sanjay Banjare v. State Of Chhattisgarh

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Sanjay Banjare v. State Of Chhattisgarh

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