Sanat Pardhi vs State Of Chhattisgarh

Parth Prateem Sahu, J

Applicant has filed this revision petition challenging the legality, propriety and correctness of the impugned judgment dated 15.07.2016, passed in Criminal Appeal No.57/2015, whereby the learned Third Additional Sessions Judge, Balodabazar, District Balodabazar-Bhatapara (C.G.) has maintained the judgment of conviction and order of sentence dated 28.07.2015, passed in Criminal Case No. S-594/2015, by the Court of Judicial Magistrate First Class, Balodabazar U/s. 34 (2) of Excise Act, 1915 (In short ‘the Act of 1915’) and sentenced him to undergo R.I. for 1 year and fine of Rs.25,000/- plus default stipulation.

Facts relevant for disposal of this revision are that on 09.10.2012 at about 15.50 O’clock police seized 36 quarters of Goa Gin and 59 quarters of Goa whiskey, total 95 quarter of liquor from possession of applicant. He was served with notice under Section 91 of Cr.P.C. for producing the documents to posses the seized quantity of liquor, however he failed to produce. He was arrested and after completion of investigation, police submitted charge-sheet against applicant for alleged commission of offence under Section 34 (2) of the Act of 1915.

Learned trial Court framed charges under Section 34 (2) of the Act of 1915 against applicant to which he denied and prayed for trial. The prosecution examined as many as 7 witnesses namely R.K. Pandey (P.W.-1), Shyama Dhruwa (P.W.-2), Smt. Keshari Dhruwa (P.W.-3), Smt. Devin Bai (P.W.-4), Janki Sen (P.W.-5), Santosh Awasthi (P.W.-6) and Smt. Premin Dhruwa (P.W.-7) and exhibited 9 documents to prove the charges levelled against applicant. Statement of applicant was recorded under Section 313 of Cr.P.C. in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. No witness was examined in defence.

After conclusion of trial, learned trial Court upon appreciation of documentary and oral evidence brought on record by the prosecution, convicted and sentenced the applicant as mentioned above. The appeal preferred by applicant has been dismissed by the impugned judgment, affirming the conviction and sentence of the applicant.

It is submitted by learned counsel for the applicant that learned trial Court as also the Appellate Court failed to consider that seizure of illicit liquor from possession of applicant was not proved. Prosecution failed to prove exclusive and conscious possession of illicit liquor from the possession of applicant. As per prosecution case, liquor was kept outside the house of applicant and some women of Mahila Samooh has surrounded the applicant and liquor kept in front of the house of applicant, at that time police came and on the allegation made by women of Mahila Samooh, applicant was arrested, therefore, the alleged seizure of liquor from possession of applicant is suspicious. He also contended that seizure of alleged liquor from possession of applicant is dated 09.10.2012, it was sent to Excise Sub-Inspector for its examination on 12.10.2012, however, the prosecution has not proved as to where the alleged illicit liquor and samples were kept during this period. Prosecution has not brought in evidence as to where the liquor was kept after seizure from alleged possession of applicant on 09.10.2012 till the samples was sent. In the seizure memo, there is no mention or impression of sample/seal. Samples sent is not properly sealed and therefore, there is all possibility that samples sent for examination is not one and same which is allegedly seized from possession of applicant. Referring to provision under Section 57-A of the Act of 1915, it is argued that it is for the police to take charge of the alleged liquor and to keep in safe custody. Prosecution has not proved by clinching evidence that the liquor was kept in safe custody till it was sent for examination. There is all possibility of changing the samples sent for its examination to Excise Sub-Inspector.

Learned State counsel opposing the submission of learned counsel for applicant would submit that prosecution to prove the charges have examined as many as 7 witnesses. Seizure witnesses have supported the case of prosecution and further as per report of Excise Sub-Inspector, seized liquid/articles from possession of applicant is foreign liquor, which is proved vide report Ex.P-1.

I have heard the learned counsel for both the parties and perused the documents placed on record.

Seizure memo (Ex.P-2) is proved by Shyama Dhruwa (P.W.-2). In seizure memo there is no impression of sample seal. The place of seizure is shown as from Angan of the house of applicant at village Lawar. Time of seizure is at about 15.50, however, in the FIR the date and time of report is mentioned as 09.10.2012 at 15.50 O’clock. In the FIR (Ex.P-8), it is mentioned that police received the information from Mahila Samooh that they have caught one boy of Pardhi community engaged in selling liquor. When police reached the village, they saw crowd of women of Mahila Samooh, surrounded one person lying some bottles kept in bags on the ground, upon asking, he disclosed his name as Sanat Paradhi and police seized alleged liquor total quantity of which is 17.100 bulk liters.

Shyama Dhruwa (P.W.-2) in her statement stated that two boxes (दो पेटी) of liquor was seized from possession of applicant. Similar is the statement of Smt. Keshari Dhruwa (P.W.-3) that two boxes (दो पेटी) of liquor was seized from possession of applicant and he was arrested. As per seizure memo (Ex.P-2), the seizure of liquor was made from three different bags one nylone bag (Jhola), one brown colour bag (jhola) and one bag having print of Ghadi detergent (jhola). There was no seizure of liquor kept in boxes as stated by seizure witnesses.

In the statement of Premin Dhruwa (P.W.-7) it has come that they have brought the alleged liquor outside from the house of applicant and police seized liquor from outside the house of applicant. Shyama Dhruwa (P.W.-2) also stated that applicant has not handed over the liquor by his own hand. Further the alleged liquor was kept in two cartoons.

From the aforementioned evidence available on record, seizure of alleged liquor from possession of applicant or from the house of applicant appears to be suspicious. In fact the witnesses have stated that seizure of liquor was made from outside the house of applicant, which was kept by women of Mahila Samooh.

Santosh Awasthi, Investigation Officer is examined as (P.W.-6). This witness also stated that when he reached the spot, members of Mahila Samooh had caught the applicant as also, brought the liquor outside the house of the applicant. This witness has not specifically stated that the seized liquor was kept in Malkhana and proved by admissible piece of evidence that it was entered into Malkhana register. Malkhana register was not produced as evidence.

Section 57-A of the Act of 1915 mandates that liquor seized has to be kept in safe custody. The provision under Section 57-A of the Act of 1915 is relevant, hence, it is extracted below for ready reference :-

57-A. Police to take charge of articles seized.-- An officer in charge of a police station shall take charge of and keep in safe custody pending the orders of a Magistrate or an Excise Officer, all articles seized under this Act which may be delivered to him, and shall allow any Excise Officer who may accompany such articles to the police station, or who may be depted for the purpose by his superior officer, to affix his seal to such articles and to take samples of and from them. All samples so taken shall also be sealed with the seal of the officer in charge of the police station.”

From the aforementioned evidence available on record wherein the prosecution has not brought any evidence in specific terms that after alleged seizure of liquor, it has been sealed, affixing specimen seal and after seizure alleged seized liquor was kept in safe custody i.e. Malkhana, in the opinion of this Court, the prosecution failed to prove the case against applicant beyond reasonable doubt that alleged seized liquor is from exclusive and conscious possession of applicant and the liquor sent for examination to the Excise Sub-Inspector is one and same which is alleged to have been seized vide seizure memo (Ex.P-2). It is for the prosecution to prove the case beyond all reasonable doubt that applicant is involved in commission of alleged offence, seizure of alleged liquor is from exclusive and conscious possession of applicant and further the sample sent for examination is one and the same, which has been allegedly seized from the possession of applicant by clinching and admissible piece of evidence.

In the facts of the case, prosecution failed to prove that applicant was in exclusive and conscious possession of illicit liquor and further the liquor seized was kept in safe custody, sample sent for examination is one and same which is seized allegedly from possession of applicant. The prosecution has not produced any evidence that there was compliance of Section 57-A of the Act of 1915.

For the forgoing discussion, the criminal revision is allowed. The impugned judgment passed by the learned Appellate Court as also by the learned trial Court is set-aside. Applicant is acquitted from the charges under Section 34 (2) of the Act of 1915.