Dushyant Kumar vs State Of Chhattisgarh

Vimla Singh Kapoor, J

CAV Order By this revision petition the applicant has assailed the judgment dated 10.05.2006 passed by Additional Sessions Judge (FTC) Durg in

Criminal Appeal No. 372/2005 affirming the judgment dated 07.10.2005/28.10.2005 passed by Judicial Magistrate First Class, Balod in Criminal Case

No. 905/2005 convicting the accused/applicant under Section 34 (1) (a) (2) of the Excise Act and sentencing him to undergo rigorous imprisonment for

one year and pay fine of Rs. 25,000/-, in default of payment of fine to undergo further simple imprisonment for 06 months.

Facts of the case in short are that on 17.06.2005 acting upon a secrete information regarding possession of illicit liquor by the accused/applicant, the

Excise Sub Inspector searched the house of the accused/applicant and seized 150 quarters of plain liquor and 50 quarters of masaala liquor total being

36 bulk liters, under Ex. P-1. After giving his own search, the Excise Sub Inspector searched the house of the accused/applicant vide Panchnama Ex.

P-5. Accused/applicant was taken into custody and after completing the procedural formalities, he was produced before the Court.

After examining the material available on record and the evidence of the witnesses, the trial Court convicted the accused/applicant under Section 34

(1) (a) (2) of the Excise Act and imposed the sentence as shown above. The findings recorded by the trial Court have subsequently been confirmed

by the lower Appellate Court by the judgment impugned and it is that which is under challenge in this revision.

Counsel for the accused/applicant submits that both the Courts below have fallen into a serious error in convicting the accused/applicant under

Section 34 (1) (a) (2) of the Excise Act and that the findings so recorded are contrary to the evidence led by the prosecution. He further submits that

as the prosecution could not prove its case beyond reasonable doubt, the judgment impugned is liable to be set aside.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the both the Courts

below convicting the accused/applicant as shown above, are strictly in accordance with law and there is no infirmity in the same.

Heard counsel for the parties and perused the evidence on record.

Ishwarlal (PW-2) examined in respect of seizure of liquor has not supported the case of the prosecution and has been declared hostile. He has

categorically stated that no liquor was seized from the house of the accused/applicant. Police constable Dayalu Ram Sahu (PW-2) has stated that the

house in question was informed by the accused/applicant to be of his own and not of his father, though he was also living in the said house. He has

also admitted that his father, wife and children also used to live in the said house. Contradicting the version of PW-2, it has been stated by the

investigating officer (PW-3) that the house in question was informed by the applicant to be of his father where he also used to live along with his

family members. Thus, the prosecution has not been able to prove that the liquor was seized from the exclusive and conscious possession of the

accused/applicant as it is apparent from the evidence of PW-2 and PW-3 that the house in question was not in his exclusive possession. Though there

is some difference in the evidence of PW-2 and PW-3 as to the ownership of the house where the liquor was found, yet it has been established that

the accused/applicant was not the sole inmate thereof.

Judgment under challenge is thus not based on the evidence on record and being so it is liable to be set aside by allowing the revision. Revision

petition is thus allowed, the judgment impugned is set aside and the accused/applicant is acquitted of the charge levelled against him.