Chattisgarh High Court
Chandra Bai vs State Of Chhattisgarh on 20 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.10 of 2012
Chandra Bai W/o Fooldas Satnami, R/o Vill. - Boda, P.S. - Palari, Distt. - Raipur
C.G.
---- Applicant
Versus
State Of Chhattisgarh Through D.M. Distt.-Raipur, C.G. ---- Non-Applicant
For Applicant: Shri AD Kuldeep, Advocate.
For Non-Applicant/State: Shri Gagan Tiwari, Dy. G.A
Hon'ble Shri Justice Deepak Kumar Tiwari
Order on Board
20.09.2022
1. By way of this Revision, the Applicant has challenged the judgment dated
30.12.2011 passed by the 2 nd Additional Sessions Judge, Baloda Bazar, District
Raipur in Criminal Appeal No.72/2011 whereby the Appeal preferred by the
Appellant has been partly allowed vide judgment dated 30.09.2010 passed by
the JMFC, Baloda Bazar in Criminal Case No.1096/2006, affirming the conviction
of the Applicant under Section 34(1)(a) of the CG Excise Act, 1915 (henceforth
referred to as 'the Act of 1915') and reducing the sentence of 6 months of simple
imprisonment to that of 3 months leaving the fine part of Rs.5,000/- unaltered.
2. Facts
leading to the instant case are that on the date of incident, i.e.
23.08.2006, on the basis of secret information, head constable Chimman Singh
Parihar (PW-4) reached village Bonda, P.S Palari and found the Applicant
possessing 5 liters of illegal mahua liquor in 2 jerry cans each and 350 ml in a
bottle, total 10.350 liters of country made liquor at her house badi. Seizure memo
was prepared vide Ex.P-2. The Applicant was arrested and FIR was registered
bearing No.237/2006 at PS Palari on 23.08.2006 at 12.15 hours. The seized
liquor was examined by Excise Sub Inspector BR Netam (PW-1), who had
opined that the same was hand made mahua which is recorded vide Ex.P-1.
3. After completion of investigation, charge sheet was filed. The Applicant
has abjured her guilt. In order to prove its case, the prosecution had examined
as many as four witnesses. In statement recorded under Section 313 Cr.P.C, the
Applicant had stated that she has been falsely implicated in the case and had not
produced any defence evidence.
4. After conclusion of trial, the learned Magistrate found the Applicant guilty,
which was affirmed by the impugned judgment, hence this Revision.
5. Learned Counsel for the Applicant Shri AD Kuldeep submits that the
impugned judgment is perverse and is bad in law and there are various
contradictions and omissions in the evidence of seizure witnesses, therefore, the
same may be set aside and the instant Revision may be allowed.
6. On the other hand, learned Counsel for the State Shri Gagan Tiwari
supports the impugned judgment and stated that both the seizure witnesses have
supported the case of the prosecution and further stated that after proper
appreciation of the evidence, the Court below had categorically recorded its
finding, therefore, the same does not call for any interference.
7. I have heard learned Counsel for the parties and perused the entire record
carefully.
8. Question for determination in this Revision is whether the impugned
judgment of conviction is just and proper and it calls for any interference?
9. Chimman Singh Parihar (PW-4) had categorically stated that the liquor has
been seized from the badi of the Applicant but he failed to demonstrate as to
from which place of the badi, the liquor was seized, though Jeevanlal (PW-3) had
stated that the liquor was seized from the hut of bore badi of the Applicant.
Dukalha (PW-2) had deposed that the badi was not covered from all the sides
and stated that he was not aware whether people come for taking water from
such bore badi. Jeevanlal (PW-3) also stated that the seized liquor was not
sealed on the spot and after bringing the same to the police station, the same
was sealed. Chimman Singh Parihar (PW-4) had stated in his cross-examination
that the seized liquor was not sealed and further stated that it is an usual practice
that they never seal it after such type of seizures are made.
10. It is mandate of the law that after the seizure of any contraband material, it
should be sealed on the spot and the seizure memo (Ex.P-1) column No.13 also
prescribes a format wherein the sample of the seal is to be mentioned. When the
seized mahua liquor is not properly sealed, then there is every possibility of the
evidence getting tampered and it cannot be safely held that the seized article is
mahua liquor. In the present case, such article was also not produced before the
Court during examination of the witnesses. Certain essential safeguards which
are available in the statute have also not been followed during investigation. In
this regard, section 57(a) of the Act is relevant which is quoted below for ready
reference:-
"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
depted 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."
11. BR Netam (PW-1) had also failed to state as to on which date, the seized
article was received to the Excise Department for examination. This witness had
clearly admitted that after examination of the seized liquor, he had also not
sealed the material and sent the same back to the police station. Chimman
Singh Parihar (PW-4) had categorically admitted that he had never sealed the
seized article but the article which was produced for examination was found in a
sealed position by BR Netam (PW-1).
12. In the matter of Santosh Nirmalkar vs. State of Chhattisgarh reported in
2009 (3) C.G.L.J 229, the following observation was made in para-10, which is
as under:-
"10. In a prosecution under Section 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."
13. In view of the above appreciation, this Court finds it difficult to sustain the
conviction as the prosecution had utterly failed to establish beyond reasonable
doubt that the article which was seized from the spot was mahua liquor. Since
the seizure spot was an open place, therefore, the contraband could not be
treated to have been recovered from the exclusive conscious possession of the
Applicant. In a situation like this, the accused Applicant would be entitled to
benefit of doubt. As the findings recorded by the learned appellate Court are
perverse to the evidence available on record, the impugned judgment of
conviction and order of sentence cannot be sustained.
14. Resultantly, the Revision Petition is hereby allowed. The impugned
judgment of conviction and order of sentence passed by the court below are set
aside and the Applicant is acquitted of the charge under Section 34(1)(a) of the
Act. The Applicant is reported to be on bail. Her bail bonds shall remain in
operation for a period of 6 months from today in view of Section 437-A Cr.P.C.
She shall appear before the higher Court as and when directed. Fine if paid,
shall be returned to the Applicant.
15. The record of the Court below be sent back along with a copy of this order.
Sd/-
(Deepak Kumar Tiwari)
Judge
Priya
