Shiv Lal Kenwat And Anr vs State Of Chhattisgarh
2022 Latest Caselaw 5751 Chatt

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                                                                             NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR
                            Criminal Revision No. 305 of 2011
   1.

Shiv Lal Kenwat S/o Vishal Kenwat, 32 years,

2. Laxman Kanwar S/o Baisakhu Kanwar, 55 years,

Both R/o Village Kothitola, P.S. - Baghnadi, District Rajnandgaon (C.G.)

---- Applicants Versus  State of Chhattisgarh, Through : District Magistrate, Rajnandgaon (C.G.)

---- Non-Applicant/State For Applicant : Shri Keshav Dewangan, Advocate For Non-Applicant/State : Shri Sudhir Sahu, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 14.09.2022

1. The applicants have filed the instant criminal revision under Section 397

read with Section 401 of Cr.P.C. against the judgment dated 06.05.2011

passed by the Second Additional Sessions Judge, Rajnandgaon (C.G.) in

Criminal Appeal No. 24/2011 whereby affirming the judgment of conviction

and order of sentence dated 05.03.2011 recorded by the learned Chief

Judicial Magistrate in Criminal Case. No. 630/2009 wherein each of the

applicants have been convicted for commission of offence punishable under

Section 34 (1) (A) & 34 (2) of C.G. Excise Act and sentenced to undergo

R.I. for one-one year & fine of Rs.25,000/- - Rs.25,000/-, in default further

R.I. for six-six months.

2. Case of the prosecution is that on 19.02.2009 at about 07:00 pm,

complainant Shanti Bai, President of Gouri Ma Mahila Samooh of Village

Sitagota, alongwith other members of group intercepted the present the

applicants who were transporting liquor on a motorcycle and seized a bag

containing 35 bulk liters of country made liquor. The group members

prepared panchnama and the applicants were detained in the house of

Kotwar and on the very next day applicants were taken to the police station,

where the F.I.R. was lodged, liquor was seized and the applicants were

arrested.

3. After investigation, charge-sheet was filed. The learned trial Court framed

charge under Sections 34 (1) (A) and 34 (2) of C.G. Excise Act and Sections

3/181, 146/196, 39/192 of Motor Vehicles Act. The applicants abjured the

charges and pleaded non-guilty. The prosecution examined 08 witnesses

and exhibited 11 documents to bring home the offence committed by

applicants. Statements of the applicants under Section 313 of Cr.P.C. were

also recorded by the learned trial Court, The trial Court after appreciation of

oral and documentary evidence, convicted the applicants for the offence

under aforementioned sections.

4. The applicants have preferred the instant criminal revision against the

judgment dated 06.05.2011 passed by the Second Additional Sessions

Judge, Rajnandgaon (C.G.).

5. Learned counsel for the applicants submits that the motorcycle of the

applicants was stopped by the women's self help group and one bag was

seized, on the next day the present applicants were produced before the

police station where F.I.R. was lodged. In written complainant Ex.-P/1 and

F.I.R. Ex.-P/2, the quantity of liquor is of 35 bottles of country made liquor,

whereas in examination report, it is mentioned as 27 bulk liters of country

made liquor. He further submits that the witnesses have not stated the

quantity of the liquor seized from the possession of the applicants in their

evidence. He also submits that the applicant No. 1 has remained in jail for a

period of 06 months and 25 days, whereas applicant No.2 has remained in

jail for a period of 04 months and 05 days and the trial Court has imposed

the maximum sentence to the applicants of 01 year each.

6. On the other hand, learned counsel for the State opposes the arguments

advanced by the learned counsel for the applicants. He submits that liquor

was seized from the possession of the present applicants, motorcycle was

also seized, liquor was examined by Excise Sub-Inspector, the report was

submitted before the trial Court vide Ex.-P/5 and two courts below have

recorded concurrent finding which does not require for interference by this

Court in exercise of revisional jurisdiction.

7. I have heard learned counsel for the parties and perused the material

available on the records.

8. From records, it appears that liquor was seized by the members of women's

self help group, written report Ex.-P/1 was submitted on the next day. F.I.R.

was lodged by Shanti Bai (PW-1) vide Ex.-P/2. Though PW-1 has admitted

her signature over written complaint, F.I.R. and panchnama Ex.-P/3, but she

has not stated the quantity of liquor in her evidence. PW-2 Amrotin Bai has

admitted her signature over Ex.-P/1, but, in cross-examination, she admitted

that they did not open the container in which liquor was kept and they were

not aware what was being transported by the present applicants and PW-4

Girja Bai has stated in same manner in her examination.

9. PW-5 Janardan Singh, Excise Sub-Inspector, has stated that on the basis of

colour, smell, taste and change of colour of litmus paper, he has given the

report that seized article was liquor and it was chemically not examined. PW-

7 D. Ram, Assistant Sub-Inspector, has completed the investigation and filed

the charge-sheet.

10. It is admitted fact that the present applicants were transporting something in

their motorcycle, but the same was liquor, has not been proved. Further,

according to provisions of Section 57-A of the Excise Act, it appears from the

entire order-sheet that the seized liquor was not produced before the

Magistrate during trial. Looking to these facts and the fact that the applicants

No. 1 has remained in jail for a period of 06 months and 25 days and

applicant No.2 has remained in jail for a period of 04 months and 05 days

and further the trial Court has imposed the maximum sentence to the

applicants of 01 year each, and presently they are on bail, this Court is of

the opinion that the ends of justice would be served if they are sentenced to

the period already undergone by them while maintaining the fine sentence

imposed by the trial Court.

11. In the result, the revision is allowed in part. While maintaining the conviction

of applicants under Sections 34 (1) (A) and 34 (2) of C.G. Excise Act, their

jail sentence is reduced to the period already undergone by them. However,

the fine amount imposed upon the applicants with default stipulation by the

trial Court shall remain intact.

Sd/-

(Rakesh Mohan Pandey) Judge

vatti