Vinod Kumar @ Ruchu Sahu vs State Of Chhattisgarh

Radhakishan Agrawal, J

The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 03.02.2012 passed in Criminal Appeal No. 160/2011 by the Fourth Additional Sessions Judge, Raipur, (C.G.), whereby judgment dated 29.09.2011 passed by the Additional Chief Judicial Magistrate, Raipur, (C.G.) in Criminal Case No. 856 of 2011, the applicant has been convicted under Section 34 (1) (A) (2) of the C.G. Excise Act, 1915 and sentenced to undergo RI for one year and to pay fine amount of Rs. 25,000/- and in default of payment of fine, additional RI for 3 months.

Case of the prosecution, in brief, is that on 22.06.2011, R.K. Agrawal (PW-3), Excise Sub-Inspector, Raipur-3, along with other staff went for patrolling to village Jaraudkhar and on the basis of information from the informer that the applicant is carrying illegal liquor in the motorcycle, and without obtaining search warrant seized 48 quarters bottles each 180 ml total 8.64 litre of foreign liquor which was kept in green jute bag and the same was seized in presence of the witnesses i.e. Omprakash Sahu (PW-1) and Umashankar (PW-2). The seized article was examined by R.K. Agrawal (PW-3), Excise Sub-Inspector. On being examined, the seized article was found to be Foreign made liquor.

After completion of investigation, charge sheet under Section 34 (1) (A) (2) was filed before the Court of ACJM, Raipur. The applicant abjured his 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.

Learned trial Court, after appreciation of oral and documentary evidence, convicted the applicant under Section 34 (1) (A) (2) and sentenced him as mentioned in para 1 of this judgment. The said judgment was challenged by the applicant in criminal appeal, however, the Appellate Court, vide judgment dated 03.02.2012 has affirmed the conviction and sentence as awarded by the trial Court. Hence, this revision.

Learned Counsel appearing for the applicant submits that the prosecution has failed to establish its case beyond reasonable doubt. He further submits the independent witnesses i.e. Omprakash Sahu (PW-1) and Umashankar (PW-2) have not supported the case of prosecution and the seized property has also not been produced before the concerned Trial Court. He further submits that no record was available with respect to patrolling and search before he proceeded to raid and that his statement is not corroborated by the independent witnesses. He also contends that provisions of Section 54 of the Excise Act have not been complied with. He further submits that the fine amount has already been deposited before the trial Court by the applicant.

On the other hand, learned State Counsel opposed the revision, while supporting the impugned judgment of conviction and order of sentence.

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

As per the statement of R.K. Agrawal (PW-3), Excise Sub-Inspector, on 22.06.2011, when he was patrolling at Arang, he received information that the present applicant was carrying 1 box liquor and was transporting the same in the motorcycle. He stated that without any search warrant he has made search in presence of the witnesses and when he was standing on the road with the witnesses, he saw the accused bringing the liquor on his black colored motorcycle bearing registration No. CG 04 DS 2107. He then

stopped the accused and searched his bag and seized total 48 quarters containing liquor 180 ml each. He further stated that he had broken the seal of 4 quarters and found them to be foreign liquor. He further submits that he prepared seizure Memo vide Ex.P/1 on the spot and took the signature of the accused/applicant. In his cross-examination, the applicant/accused has stated that out of seizure of 48 quarter bottles, he only examined the 4 quarter bottles after breaking the seals and further admitted that by tasting the same and by pouring blue litmus paper on it, he found them to be foreign liquor. It is also admitted by him that liquor test done by him is a physical and chemical test and not on the basis of chemical analysis. However, perusal of seizure memo (Ex.P-1) coupled with the evidence P.W.3 R.K.Agrawal, it would reveal that the seizure was effected on the spot itself without being searched of his staff. It also appears from his statement that physical and chemical test was also done on the spot without sending the seized article to chemical analysis and that the seized article was also not produced before the concerned trial Court. Moreover, statement of P.W.3 R.K.Agrawal is also not corroborated by the independent witnesses P.W.1 Omprakash and P.W.2 Umashankar, who have stated on the contrary that no seizure was effected before them and their signatures have been obtained, but on the blank papers. It also appears that both P.W.1 Omprakash and P.W.2 Umashankar have turned hostile witnesses as they did not support the case of the prosecution.

The prosecution has not offered any explanation for not keeping seized property 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 and that no report of the chemical analysis has been produced by the prosecution. This apart, the provisions of Section 54 of the Excise Act have also not been complied with by the prosecution. Section 54 of the Excise Act reads as under:

Power to search without a warrant.

Whenever any Excise Officer not below such rank as the State Government may, by notification, prescribe, has reason to believe that an offence under Section 34, Section 35, Section 36, Section 36-A, Section 36-B, Section 36-C, Section 37, Section 38, Section 38-A, Section 39, or Section 40 has been, is being or is likely to be, committed, and that a search-warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence he may after recording the grounds of his belief,

(a) at any time, by day or night, enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and

(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.

As per above provision PW-3 R.K. Agrawal (Excise Sub-Inspector) did not prepare any document as required under Section 54 of C.G. Excise Act, 1915.

In the matter of Suresh Kumar vs. State of Chhattisgarh reported in 2006 (3) CGLJ 259, this Court has observed as under:

“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 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.

Having thus considered the evidence led by the prosecution, the following points emerge:

(A) There is total non-compliance of Section-- of the Act by Excise Sub Inspector K.L. Taram PW-2 which vitiates the prosecution.

(B) It is not established beyond doubt that the Applicant was found in possession of country made liquor in excess of 25 bulk liters. (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.

(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.

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.”

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 and the conviction of the applicant under section 34 (1) (A) (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 (1) (A) (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 him benefit of doubt. Fine if paid, shall be refunded to the applicant.

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 437-A of Cr.P.C. 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.