Lavkumar @ Bablu vs State Of Chhattisgarh
2025 Latest Caselaw 3545 Chatt

Chattisgarh High Court

Lavkumar @ Bablu vs State Of Chhattisgarh on 8 April, 2025

                                                       1




                                                                       2025:CGHC:16596
                                                                                       NAFR

                          HIGH COURT OF CHHATTISGARH AT BILASPUR

                                            CRR No. 752 of 2016

             Lavkumar @ Bablu S/o Ramsharan Aged About 22 Years At Present Aged About 24
             Years R/o Village Purainbandh, Ganjhutoli, Police Station Tapkara, District Jashpur
             Chhattisgarh ,
Digitally
signed by
ANJANI
                                                                                  ... Applicant
KUMAR
ALLENA                                             versus
Date:
2025.04.09
15:42:37
+0530        State Of Chhattisgarh Through - District Magistrate, Jashpur, District Jashpur
             Chhattisgarh ,
                                                                                ... Non-applicant
             For Applicant          :   Smt. Madhunisha Singh, Adviocate.
             For Respondent/State :     Shri Deepak Kumar Singh, Panel Lawyer.

(HON'BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)

Order on Board

08/04/2025 Heard.

1. The present revision filed under Section 397/401 Cr.P.C. is directed against

the judgment of conviction and order of sentence dated 21.07.2016 passed in

Criminal Appeal No.15/2014 by the Court of Additional Judge to the Court Additional

Sessions Judge, Kunkuri, Dist. Jashpur (C.G.), whereby the appeal filed by the

applicant is dismissed while upholding judgment dated 29.01.2014 passed by

Judicial Magistrate First Class, Kunkuri in Criminal Case No. 390/2013 convicting

the applicant under Section 34 (1) (f) of the Chhattisgarh Excise Act, 1915 and

sentencing him to undergo R.I. for six months with fine of Rs.10,000/-, in default to

pay fine amount, additional RI for two months.

2. Case of the prosecution, in brief, is that on 21.04.2013, when P.W.1 Dhanesh

Bharti, Excise Sub-Inspector was on patrolling, he received an information from

informer that the applicant is involved in making liquor and upon such information he

rushed to the house of the applicant situate at village Puraibandh Gunjtoli and in

pursuance of search, he seized vide Ex.P.1, an earthen pot containing 15 kilograms

of Mahua Lahan (Mahua Flower or Mahua Flower based intoxicating drink ), in front

of the witnesses and the alleged seized Mahua Lahan has been destroyed by him

after taking sample. During course of investigation, complaint No.10/13 for the

offence under Section 34(1)(f) of the C.G.Excise Act was filed against the

accused/applicant by the Excise Circle, Kunkuri.

3. After completion of investigation, complaint case was filed before the J.M.F.C.

Kunkuri. 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.

4. Learned trial Court as well as appellate Court, after appreciation of oral and

documentary evidence, convicted and sentenced the applicant, as mentioned in

opening paragraph. Hence, this revision.

5. Learned Counsel appearing for the applicant submits that P.W.1 Dhanesh

Bharti, Excise Sub-Inspector has not complied with the provisions containing in

Section 54 of the Excise Act and that his statement has not been corroborated by

the independent witnesses, i.e., P.W.2 Koushilya and P.W.3 Tilakmani. She further

contends that sample taken from the spot has not been kept in safe custody and the

seized Mahua Lahan has been destroyed by P.W.1 Dhanesh Bharti on the spot.

This apart, the alleged sample which has been taken has not been produced before

the Court and that, it was not sealed and examined by expert. She next submits

that test report (Ex.P.4) is undated and that both independent witnesses, i.e., P.W.2

Koushilya and P.W.3 Tilakmani are rustic villagers and illiterate persons and more

so, the prosecution has failed to prove its case beyond reasonable doubt. On these

premises, she urged that applicant be acquitted of the charge levelled against him.

6. On the other hand, learned State Counsel opposed the revision, while

supporting the impugned judgment of conviction and order of sentence.

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

the record minutely.

8. As per the statement of P.W.1 Dhanesh Bharti, Excise Sub-Inspector, on

21.04.2013, at village Puraibandh Gunjhtoli, a search was effected at the house of

the applicant and seized 15 kilograns of Mahua Lahan which was kept in an earthen

pot and on the same date he examined the seized Mahua and prepared seizure

memo (Ex.P.1), Search Panchnama (Ex.P.2), a test report vide (Ex.P.4), and spot

map (Ex.P.5). It is also admitted by him in his cross-examination that he did not

have any degree qualification to examine the alcohol. P.W.2 Koushilya and P.W.3

Tilakmani, who are stated to be independent witnesses, have stated that Mahua

Lahan and 10 litres of liquor was seized by the Excise Police. In their cross-

examination, they have further stated that they do not know how to read but can

somehow write their name. It is further admitted by them that Excise Police did not

read out the things and asked them to make signatures and since they could not

know how to read and write, therefore, they could not read anything and signed

wherever the Excise Police asked them to sign.

A bare perusal of above evidence would show that P.W.1 Dhanesh Bharti

has stated that he seized 15 kilograms Mahua Lahan whereas independent

witnesses have stated that Mahua Lahan has been seized, but how much quantity

of alleged Mahua Lahan was seized from the possession of the applicant is not

clear whereas, as per the prosecution case, there was seizure of 10 liters of liquor.

This apart, if P.W.1 does not have any qualification to examine the alcohol, then how

could he recognise that the seized liquor was that of alcohol substance. Moreover,

the independent witnesses have not fully corroborated the statement of P.W.1.

Further, after taking the alleged samples, it was destroyed on the spot by P.W.1

Dhanesh Bharti.

9. There is no evidence on record to show where was the alleged sample kept

and whether the seized sample was sealed properly and that, there is no such

document which shows that the sample article was kept in safe custody. More so,

the seized sample has not been tested and has also not been produced before the

Court. Besides above, provisions of Section 54 of the Excise Act have not been

complied with. Section 54 of the Excise Act is reproduced herein under:

"54. 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-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."

10. A bare perusal of above provision would show that before effecting search,

without warrant, the Excise Officer shall record the grounds of his belief regarding

search and seizure, as stated above. However, in this case, P.W.1 Dhanesh Bharti

did not do so nor the seized article has been sealed properly, inasmuch as, the test

report (Ex.P.4) does not bear any date to show that on which date the seized liquid

was examined by P.W.1. Moreover, it is bounden duty of the prosecution to seal the

seized property and to keep the same in safe custody, but the prosecution has failed

to discharge its duty.

11. Since the independent witnesses have not duly corroborated the evidence of

P.W.1 and that provisions of Section 54 of the Excise Act have not been complied

with in this case, therefore, it can be held that the prosecution has utterly failed to

prove its case beyond reasonable doubt and I hold as such.

12. For the foregoing discussions, the revision is allowed and the impugned

judgments of both the learned Courts are set aside and the applicant is acquitted of

the charge levelled against him.

13. 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.

Sd/-

(Radhakishan Agrawal) JUDGE

Anjani