State Of Chhattisgarh vs Laxmi Narayan
2022 Latest Caselaw 3873 Chatt

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                                                                 NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                 Acquittal Appeal No. 49 of 2010

      The State of Chhattisgarh, Through - District Manistrate,
      Dhamtari (C.G.)

                                                          ---- Appellant

                               Versus

      Laxmi Narayan, S/o Shankar Lal Sahu, Age 39 yrs, R/o
      Ram Sagar Para, Dhamtari, Station & District Dhamtari
      (C.G.)

                                                    ----Respondent




For Appellant          :     Mr. Adil Minhaj, Advocate.
For Respondent         :     Mr. R.S. Patel, Advocate.


           Hon'ble Shri Justice N.K. Chandravanshi

                           Order On Board
20.06.2022

1.    This appeal has been preferred against the judgment of
acquittal dated 27.08.2009 passed by Chief Judicial Magistrate,
Dhamtari, Distt. Dhamtari in Criminal Case No. 166/2009 whereby
respondent/accused has been acquitted of the charge under
Section 34-1(A) of the Chhattisgarh Excise Act.

2.    Facts

of the case, in brief, is that on 8.3.2009 based on secret information received from the informant, B.R. Sinha, ASI (PW-4) caught red handed the respondent/accused and seized 48 bottles plane country made liquor, each containing 1 quarter (180 ml) from the possession of the applicant, which he was carrying in a cartoon kept in a plastic bag. The respondent/accused was not having any legal document for having possession of aforesaid country made liquor, hence, the same was seized vide Seizure Memo (Ex.P-1) and the offence under Section 34 (A) of the Excise

Act was registered against the applicant and he was arrested. Four quarters of seized liquor was sent for chemical examination. After usual investigation, charge-sheet under Section 34 (A) of the Excise Act was filed against the respondent. Particulars of the offence was read & explained to the appellant, which he denied and his plea was recorded.

3. In order to prove the guilt of respondent/accused, the prosecution has examined as many as 4 witnesses in support of its case. Statement of the respondent/accused was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication in the case.

4. The trial Magistrate, after hearing counsel for the respective parties and considering the material available on record, vide impugned judgment dated 27.8.2009, has acquitted the respondent/accused as mentioned in opening paragraph of this order. Hence, this acquittal appeal.

5. Learned counsel for the applicant would submit that B.R. Sinha, ASI (PW-4), who is investigating Officer, has stated in his deposition that 48 bottles, each containing 180 ML, of plain country made liquor has been seized from illegal possession of the applicant, for which, he was not having any legal document. Seizure witnesses namely Naveen Yadav (PW-1) and Ganesh Yadav (PW-2) have admitted their signatures in the seizure memo (Ex.P-1). B.R. Sinha, ASI (PW-4) has further deposed that four bottles of country made liquor has been sent for chemical examination and report of the Excise Sub Inspector B.P. Patel (PW-3) was received vide (Ex.P-2), in which, it was found that the said sample was plain country made liquor. This fact has also been proved by Excise Sub Inspector (PW-3) in his deposition, which is well supported by report (Ex.P-2) prepared by him. Hence, considering the aforesaid material evidence available on record, the trial Court ought to have held guilty to the respondent/accused for

commission of offence under Section 34 (A) of the Chhattisgarh Excise Act, hence, it is prayed that the impugned order be set aside and the respondent/accused be held guilty for the aforesaid offence.

6. On the other hand, learned counsel for the respondent/accused would submit that seizure witnesses have not supported the case of the prosecution. Even both the seizure witnesses i.e. Naveen Yadav (PW-1) and Ganesh Yadav (PW-2) have deposed that neither the alleged plastic bag, in which, the liquor was kept, was seized in front of them nor while signing by them in the seizure memo, respondent/accused was present there. He further submits that alleged illicit liquor was seized on 8.3.2009 whereas the same was sent for chemical examination to Excise Sub Inspector B.P. Patel (PW-3) on 24.3.2009 and there is no proper explanation or any evidence on record to explain that in between where the liquor had been kept, hence, learned trial Court after considering all the aspects of the case has rightly acquitted the respondent.

7. I have heard learned counsel appearing for the parties and perused the record of court below with utmost circumspection.

8. B.R. Sinha, ASI (PW-4), who is the Investigating Officer, has seized alleged liquor from the illegal possession of applicant and prepared the seizure memo (Ex.P-1), which shows that liquor was seized on 8.3.2009 but as per the statement of B.P. Patel, Excise Sub Inspector (PW-3), the alleged sample, which was collected from the total seized country made liquor, has been sent to him for chemical examination on 24.3.2009. It has not been proved that in between, where the liquor had been kept. This is very serious lacuna on the part of the prosecution, which dent its case.

9. Naveen Yadav (PW-1) & Ganesh Yadav (PW-2) are the seizure witnesses. They have been declared hostile by the prosecution, as they have not supported the case of the

prosecution and even on suggestive questions, they have denied the the suggestion of the prosecution that alleged plastic bag containing liquor has been seized in their presence. They have also deposed that when they put their signature in the seizure memo, at that time, the respondent/accused was not there.

10. B.R. Sinha, ASI (PW-4) has also deposed that out of 48 bottles, he had collected four bottles of alleged liquor as a sample for chemical examination, but he has not stated that any memo/panchnama has been prepared in this regard. His statement has also not got support from any other witness.

11. Thus, since it is not clear from evidence adduced by the prosecution that after seizure, where the alleged liquor including alleged sample collected from it, had been kept and memo/panchnama with regard to collection of sample has not been prepared, therefore, it cannot be held that the report (Ex.P-2) prepared by B.P. Patel, Excise Sub Inspector (PW-3) is for the same article, which have been seized from the alleged possession of applicant, and which has been stated as country made liquor by the prosecution. Seizure of alleged liquor has also not been proved in this case.

12. In view of the foregoing discussion, I do not find any illegality or infirming in the order impugned order by acquitting the accused/applicant of the alleged offence, hence, the judgment of acquittal passed by the trial Court is upheld.

13. Consequently, the acquittal appeal, being devoid of substance, is liable to be and is hereby dismissed.

Sd/-

(N.K.Chandravanshi) Judge

D/-