Santosh Nirmalkar vs State of C.G.

D.R. Deshmukh, J.—Learned Counsel for the applicant did not press I.A. No. 1, which is an application for suspension of sentence and grant of bail.

Accordingly, the application I.A. No. 1 is dismissed as not pressed.

Learned Counsel for the applicant prayed that this criminal revision be heard finally at the stage of admission.

Prayer is not opposed.

The criminal revision is finally heard today at the stage of admission.

This criminal revision is directed against the judgment dated 29-06-2009 delivered in Criminal Appeal No. 21/2009 by the Sessions Judge, Janjgir-Champa whereby conviction of the applicant u/s 34(1)(A) of the Chhattisgarh Excise Act and the sentence of rigorous imprisonment for three months and fine of Rs. 5,000/- and in default, additional rigorous imprisonment for one month awarded by the Chief Judicial Magistrate, Janjgir vide judgment dated 17-03-2009 in Criminal Case No. 1779/2008, was affirmed.

Brief facts are that on receiving information that the applicant was in unauthorized possession of country made plain liquor, Head Constable, Govind Ram Dhiwar, P.W. 2 accompanied with Badri Prasad, P.W. 4 and Kartik Ram, P.W. 3 seized 32 quartets of country made plain liquor kept inside a nylon bag from the possession of the applicant on 17-11-2008 near Khisora canal bridge in Akaltara. Seizure memo, Ex.P. 2 was prepared. On 22-11-2008, the seized articles were sent for analysis to the Excise Sub Inspector-Nitin Khanduja, P.W. 1, who on examining the same on the same day opined that the substance contained in the 32 quarters was country made plain liquor. Prosecution was launched against the applicant u/s 34(1)(A) of the Chhattisgarh Excise Act. The applicant abjured the guilt, pleaded innocence and led no evidence in defence. The learned Chief Judicial Magistrate relying on the testimony of Head Constable-Govind Ram Dhiwar, P.W. 2, Kartik Ram, P.W. 3 and the testimony of Excise Sub Inspector-Nitin Khanduja, P.W. 1 convicted and sentenced the applicant as mentioned in para 6 (supra). Being aggrieved, the applicant preferred Criminal Appeal No. 21/2009 before the Sessions Judge, Janjgir-Champa which was dismissed by the impugned judgment.

Shri Suresh Kumar Verma, learned Counsel for the applicant and Shri G.D. Vaswani, learned Govt. Advocate for the State were heard. Record of Criminal Case No. 1779/2008 is perused.

Section 57A of the Chhattisgarh Excise Act, 1915 reads as under:

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 deputed 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.

In a prosecution u/s 34 of the Excise Act, the prosecution is required to establish the following:

A. the article (country made plain liquor in this case) sent for analysis to the Excise Sub inspector was the same which was seized from the applicant,

B. that the articles seized were kept in safe custody of the Officer in charge of the Police Station till examination by an Excise Officer.

C. that such Excise Officer had affixed his seal to such articles after taking samples, and,

D. the seized articles were produced before the trial Judge so as to facilitate the trial Judge to examine that the seal on the samples taken from the seized articles were found intact.

A perusal of the seizure memo Ex.P. 2 does not show that the nylon bag containing 32 quarters of country made plain liquor was entrusted to the Officer in charge of Police Station, Akaltara for safe custody after its seizure or by the Excise Sub Inspector-Nitin Khanduja, P.W. 1 after analysing the contents. The testimony of Helad Constable, Govind Ram Dhiwar, P.W. 1 also does not show that 32 quarters of country made plain liquor were sealed bottles or not. He also did not depose that he had produced the articles before the Officer in charge of the Police Station Akaltara for safe custody in the malkhana. No material was placed before the learned trial Judge to show in whose custody the articles seized were kept from 17-11-2008 till 22-11-2008 i.e. when these articles were sent for chemical analysis by the Excise Sub Inspector, Akaltara-Nitin Khanduja, P.W. 1. A perusal of the order sheet dated 22-11-2008 of the trial Court also shows that the muddemaal was also not produced before the trial Judge.

In the above mentioned circumstances. I am of the considered opinion that the possibility of tampering with the seized articles before it was received by the Excise Sub Inspector-Nitin Khanduja, P.W. 1 could not be ruled out. In a situation like this, the accused-applicant would be entitled to benefit of doubt.

In the result, the criminal revision is allowed. Conviction of the applicant u/s 34(1)(A) of the Chhattisgarh Excise Act is set aside. The applicant is acquitted of the charge u/s 34(1)(A) of the Chhattisgarh Excise Act after giving him the benefit of doubt and shall be set at liberty forthwith, if not required in any other case. Fine if paid, shall be refunded to the applicant.