Dhiraj Sharma And Anr vs State Of Chhattisgarh
2021 Latest Caselaw 270 Chatt

                                                                     NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                            CRR No. 2 of 2010
                        Order reserved on 18.03.2021
                    Order pronounced on 11.06.2021
1.    Dhiraj Sharma, S/o Shri Ramkumar Sharma, aged about 23 years,
      R/o Infront of Nagar Panchayat, Pithoura, Tahsil & District
      Mahasamund (CG).
2.    Lokesh Kumar Dongre, S/o Tansingh Dongre, aged about 20 years,
      R/o Ranisagarpara, PS Pithoura, District Mahasamund (CG)
                                                      ---- Applicants.
                               Versus
      State of Chhattisgarh through the District Magistrate, Mahasamund,
      District Mahasamund (CG)                            --- Respondent.

      For Applicant/s              : Mr. Shivendu Pandya, Advocate
      For State/Respondent         : Mr. Sameer Sharma, Dy. GA.


              Hon'ble Smt. Justice Vimla Singh Kapoor

                               C.A.V. Order

On 20.08.2009 at about 6 PM Assistant Sub Inspector J.L. Sahu

(PW-6) received a secret information to the effect that the

accused/applicants herein were carrying liquor on a motorcycle for sale.

After entering the information in the Rojnamcha Sanha he proceeded to

the spot, laid barricading and on seeing two persons coming thereto on

motorcycle, they were stopped and an enquiry was made. On enquiry, the

rider of the motorcycle disclosed his name to be Dhiraj Sharma whereas

the pillion rider as Lokesh Kumar Dongre, both the accused herein.

2. From a bag bearing an impression of Manikchand Gutka 96

quarters and from the other one 45 quarters of Royal Master Whiskey was

kept in between rider and pillion rider were found. On further enquiry the

accused/applicants admitted the contents of the bag to be liquor and that

they were carrying the same for sale. The total quantity of the liquor was

found to be more than 25 bulk liters. Though the liquor was sent to the

laboratory for chemical examination, the report remained awaited.

However, on experience based and litmus paper based examination of the liquor being done, the same was opined to be nothing else but the foreign

made liquor as the pungent smell emanated therefrom. After investigation,

the challan was filed and the charge was framed under Section 34 (2) of

the CG Excise Act.

3. Learned Magistrate vide judgment dated 04.11.2009 passed in

Criminal Case No.443/2009 held the accused/applicants guilty under

Section 34 (2) of the Excise Act and sentenced each of them to undergo

RI for one year with fine of Rs.25,000/-. On appeal being preferred, the

finding of learned Magistrate came to be upheld in its entirety vide

judgment impugned dated 01.01.2010 passed in Criminal Appeal

No.119/2009. Hence this revision.

4. Learned counsel for the accused/applicants submits that though

the number of contradictions and omissions were galore in the evidence

adduced by the prosecution, both the Courts below have ignored the

same and recorded an abrupt finding of conviction against the

accused/applicants. He submits that most of the witnesses hailing from

the Department cannot be held to be trustworthy for convicting the

accused/applicants, and being so the accused/applicants are entitled for

acquittal.

5. On the other hand, counsel for the respondent/State supports the

judgment impugned and submits that both the Courts below have been

fully justified in making a threadbare survey of the evidence adduced by

the prosecution and eventually holding the accused/applicants guilty under

Section 34 (2) of the Excise Act and being so there is no room for any

interference with the well reasoned finding recorded by both the Courts

below. Though the seizure witnesses being PW-1 and PW-2 have not

supported the case of the prosecution yet the evidence of J.L. Sahu (PW-

6) who acting upon the secret information reached the spot, laid

barricading and stopped the accused/applicants, has categorically stated that in two bags kept on the motorcycle in between rider and pillion rider

more than 25 liters of liquor was been seized and accused/applicants also

admitted the same for being taken for sale. L.K. Choubey (PW-5), the

Excise Sub Inspector who did experience based examination of the liquor

has categorically stated that on account of the pungent smell coming out

from the contents of the bottles he opined the same to be the foreign

made liquor. The defence has not attributed any old standing enmity

between the accused/applicants and PW-6 to chalk out the possibility of

false implication of the accused/applicants at his hands. Since the defence

has not done anything like this, there is no scope for any doubt in the

investigation carried out by PW-6 which resulted in seizure of more than

25 bulk liters of foreign made liquor. This Court does not find any

substance in the argument of the counsel for the accused/applicants that

the Courts below have not taken into account the evidence of the

witnesses in proper perspective, rather on being subjected to close

scrutiny, the testimony of PW-6 turned out to be fully realistic and reliable

as such.

6. In aforesaid view of the matter, this Court does not wish to interfere

with the well written concurrent finding recorded by the two Courts below

holding the accused/applicants guilty under Section 34 (2) of the Excise

Act. In this view of the matter the revision fails and dismissed as such by

upholding the judgment impugned.

Sd/-

(Vimla Singh Kapoor)

Judge Jyotishi/Ajay