Dhyan Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 10980 MP

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IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
        HON'BLE SMT. JUSTICE ANURADHA SHUKLA
               ON THE 17th OF JULY, 2023
             CRIMINAL REVISION No. 1239 of 2023

BETWEEN:-

1.    DHYAN SINGH S/O SHRI TILAKRAJ SINGH,
      AGED ABOUT 62 YEARS, OCCUPATION:
      FARMING, RESIDENT OF : VILLAGE :
      AHIRGAON       POLICE       STATION
      AMARPATAN, DISTRICT- SATNA (MADHYA
      PRADESH).
2.    BALI SINGH S/O SHRI VIRENDRA SINGH,
      AGED ABOUT 54 YEARS, OCCUPATION:
      FARMING,   RESIDENT    OF  VILLAGE
      DALDAL POLICE STATION, RAMPUR
      BAGHELAN, DISTRICT SATNA (MADHYA
      PRADESH).
                                              .....APPLICANTS
(BY SHRI AKHILESH SINGH - ADVOCATE )

AND

STATE OF MADHYA PRADESH THROUGH
EXCISE OFFICER, EXCISE OFFICE, CIRCLE
AMARPATAN    DISTRICT-SATNA   (MADHYA
PRADESH).
                                             .....RESPONDENT
(BY SHRI RAM GIRISH VERMA - PANEL LAWYER FOR THE RESPONDENT/ STATE )

      Reserved on    : 06.07.2023

      Pronounced on : 17 .07.2023
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      This Criminal Revision having been heard and reserved for order,

coming on for pronouncement this day, the court passed the following:

                                 ORDER

This criminal revision has been filed challenging the judgment

passed by Second Additional Sessions Judge, Satna on 13.03.2023

deciding the criminal appeal No.3400155/2016. By the impugned

judgment the criminal appeal was dismissed and the judgment of Chief

Judicial Magistrate, Satna delivered on 18.07.2016 in RCT No.2577/2006

was confirmed both on the points of conviction and sentence.

Accordingly, the applicants now stand convicted for the offence of

Section 34(2) r/w. 45 of Madhya Pradesh Excise Act and are undergoing

sentence of rigorous imprisonment of 2 years. It is claimed that they have

already deposited the fine amount of Rs.50,000/- under the impugned

judgment.

2. The prosecution story reveals that information was received by the

Excise Sub-Inspector Vishwabandhu Choudhry that applicants were

selling illicit liquor in their shop adjoining the road in the Village

Ahirgaon. Apprehending that delay in obtaining search warrant may help

the wrong doer to frisk away or remove the illicit liquor, he proceeded for

the spot along with the staff of Excise Department without obtaining the

search warrant. On 08.03.2006 at 10.20 a.m. they reached the destination,

the applicants were present there, search party gave its search to the

applicants and thereafter it searched the place, which was in possession of

applicants. 933.06 litres of illicit liquor containined in sealed bottles was

found there. Applicants failed to produce any valid licence to justify the

possession. Rs. 2,333/- were also there and as the amount of sale of illicit

liquor they were seized. The money and the illicit liquor were sealed. The

spot map was prepared. The sample of seized liquor was examined and

test report was prepared. The liquor was then sealed on the spot.

Applicants were handed over to the police of Police Station Amarpatan

and were later produced before the Court. Information regarding

ownership of the place from where the illicit liquor was seized, was

obtained from the revenue department. The documents regarding earlier

conviction of applicants were also obtained and the final report was filed

before the Court. On that basis, the charges were framed and the trial was

conducted. Both the applicants were convicted and sentenced by the trial

Court as well as by the appellate Court.

3. The grounds raised in this criminal revision are that the seizure memo

Ex.P/2 under which the alleged illicit liquor was seized does not

mentioned the name of manufacturing company and batch number.

Nowhere it was proved that the liquor was ever handed over to the person

concerned for its safe custody and no Malkhana register was produced to

prove the same. Only ten minutes were taken to conclude the proceeding

of Ex.P/1 and P/2, which is highly improbable. Seizure memo Ex.P/2

indicates that no sample was taken. Further no document shows that how

the liquor was examined. The place of incident marked in Ex.P/4 is

different from the place shown in trace map. The two documents refer to

two different places and survey number is also not the same. The earlier

conviction was not duly proved and a mere chart cannot be taken as proof

of earlier involvement of accused in crime of similar nature. The

independent witnesses did not support the prosecution story. The

conscious possession has also not been proved. Compliance of Section 54

of Madhya Pradesh Excise Act was not ensured. The investigation officer

was the sole witness to support prosecution story but his testimony was

not of credible nature. Claiming that the impugned judgment suffers from

material illegality and irregularity, it is prayed that the criminal revision

be allowed and the applicants be acquitted.

4. Learned counsel for the State has opposed this revision claiming that

there is no illegality or perversity in the impugned judgment passed by

the appellate Court and it is passed on well considered facts and law. It is

therefore, prayed that the criminal revision should be dismissed.

5. Heard learned counsel for both the parties and perused the record.

6. Examination of record of trial Court goes to show that total 4

witnesses were examined on behalf of prosecution. Since it was the case

based upon complaint, hence evidence before charge were recorded in the

year 2006 and after the charge was framed on 24.07.2013, the case was

taken up for after charge evidence. In that process complainant

Vishwabandhu Choudhary, who was earlier examined as PW-1 was again

summoned and his examination-in-chief was wrongly recorded once

again. Thus, there are two complete depositions available on record of

this witness.

7. Manendra Singh Tiwari (PW-2) and Narendra Singh (PW-3) are the

independent witnesses relating to the proceeding of seizure etc. but both

of them have turned hostile and have failed to prove any seizure of illicit

liquor. They have even claimed that no proceeding was conducted in their

presence against the present applicants. Though they admit their

signatures on the documents but their claim is that the documents were

blank when they signed them. Thus, these two witnesses do not give any

corroboration to the prosecution story.

8. Bholadin Choudhary (PW-4) is the patwari, who while working on

direction of Tahsildar Amarpatan prepared the Naksha trace and has also

provided the copy of Khasra entry. Thus, this witness too was not present

on the spot to give corroboration to the proceeding undertaken at the time

of seizure.

9. The prosecution case is thus left to be proved on the sole testimony of

seizure officer namely Vishwabandhu Choudhary (PW/1). There is no

explanation on record that why other members of search party were not

examined. It is apparent on the record that the seizure officer Shri

Vishwabandhu Choudhary was also the investigating officer, which is not

a very appreciable fact regarding fair conduct of investigation. In this

perspective the testimony of Vishwabandhu Choudhary (PW/1) deserves

to be examined very meticulously.

10. It is claimed by Shri Vishwabandhu Choudhary (PW/1) that on

receiving information he immediately proceeded for spot because he had

apprehension that the delay in obtaining the search warrant may frustrate

the exercise. If there is any requirement of immediate action the

provision of Section 54 of Madhya Pradesh Excise Act requires that the

grounds of believing that the search warrant cannot be obtained without

affording the offender an opportunity of escape or of concealing evidence

of the offence should be recorded then alone the Excise Officer may

proceed for search without obtaining the required search warrant. No

document has been produced to prove as to what was the contingency for

not obtaining the search warrant. Thus, there is violation of Section 54 of

the Madhya Pradesh Excise Act. It should however be appropriate to

observe here that the violation of this provision does not itself render the

search invalid. Thus, the procedure adopted may be in violation of law

but on that ground itself, the validity of search cannot be questioned.

11. The next important point raised in this appeal is that the seizure

officer Shri Vishwanath Choudhary was also the investigating officer of

the alleged crime and he not only submitted that final report but also

prepared the scientific examination report to suggest that the contents of

seized bottles was liquor.

12. Learned counsel for the appellants has very validly placed reliance

on the judgment of Hon'ble Supreme Court in Mohanlal Vs State of

Punjab (2018) SCC On-line SC 974 and order passed by this High Court

in Criminal Revision No.1598/2020 cited as Mithun Vs State of Madhya

Pradesh 2020 3 MPWN 32.

13. In Mohanlal Vs. State of Punjab (Supra) the Hon'ble Apex Court was

deciding a case under NDPS Act and finding that there were certain

presumptions and principles of reverse burden of proof on the accused

under that act, the Hon'ble Apex Court held that the investigation must be

fair and justifiable. It was held that there should not be any conduct or

impression which may give rise to general and real apprehension that the

investigation was not fair. In that case the informant as well as the

investigator was one and the same person.

14. Hon'ble Apex Court held that if a person who makes the allegation,

is himself asked to investigate, serious doubts will naturally arise about

his fairness and impartiality. In such a circumstance, it is not necessary

that a bias must be proved. It was further held that it would be illogical to

presume and contrary to normally human conduct that such a person

would himself at the end of investigation submit a closure report to

conclude false implication with its attended consequences for the

complainant himself. It can be assumed that the result of investigation

would be foregone conclusion.

15. Appreciating this legal matrix, the co-ordinate bench of this Court in

Mithun Vs. State of M.P (Supra) has held that there is a presumptive

clause under Section 43 of MP Excise Act, therefore citation of Mohanlal

(Supra) governs the case of MP Excise Act as well and the principles laid

down in that case needs to be strictly adopted in a case under M.P. Excise

Act. The facts of that case were that an information was received through

Mukhbir upon which the concerned officer claimed to write it down in

the register and then conducted the search. He also acted as investigator,

therefore, the principles of Mohanlal (Supra) case was applied here.

16. In the present case, it is established that though the Excise Officer

claims to have received an information but he made no efforts to write it

down or to dispatch it to the concerned authority under Section 54 of

M.P. Excise Act. He thereafter proceeded to the spot where he not only

conducted the search but also examined the contents of bottles to give

opinion that the seized material was liquor. He was the investigator and it

was he who proceeded to file the final report. These facts go to show that

the entire exercise was conducted by him and there was least involvement

of any other responsible person to examine whether the conduct of

seizure officer was fair and impartial in that exercise.

17. It is very relevant to note here that after the search was over, the

appellants were handed over in the custody of the concerned police

station but the seized articles were never proved to be given in the

custody of any authority for their safe storage. Section 57 and 57A of

M.P. Excise Act are relevant to be mentioned here which enjoin a duty

upon an Excise Officer to report the particulars of arrest seizure and

search to his immediate officer superior official within 24 hours of

proceeding and to send the person arrested and the things seized to the

Judicial Magistrate. Further, an officer incharge of Police Station has to

take charge and keep in safe custody pending the orders of Magistrate,

the articles seized under this act which may be delivered to him. Total

non-compliance of these two sections is apparent on the face of this case.

18. The statement of Shri Vishvabandhu Choudhary were recorded

twice in this case. In his statement recorded as PW/4, he has admitted in

para 20 that liquor seized in the matter is in his possession and is kept in

his office at Amarpatan. He was directed by the Court to produce the

same before it on the next date and for the purpose of ensuring production

of liquor, his cross examination was postponed. Next date 13.10.2006

was fixed for this purpose.

19. The order sheet of the learned trial Court dated 26.10.2006 shows

that IO Shri Vishvabandhu Choudhary not only disobeyed the order of

the trial Court regarding production of seized items but he also made false

submission before that Court. In the light of this fact the presiding judge

of the trial Court ordered that the matter needed high end enquiry. The

later events reveal that this alleged liquor was subsequently deposited in

the Malkhana of the Court and Shri Vishwabandhu was further cross-

examined only on 07.04.2011.

20. In para 24 of his cross examination Shri Vishwabandhu Choudhary

has admitted that there was no seizure chit on the seized items bearing the

signatures of witnesses. For this, he has accounted the reason of 5 years

delay in production of seized items before the Court, but this delay is

liable to be accounted for by him alone and not by any other persons.

21. On the basis of foregoing discussion, it is evident that Vishvabandhu

Choudhary though allegedly received an information but he never

recorded it in any document and he conducted every proceeding in this

case and never let any other officer to get involved at any stage of the

investigation of this crime. He could not reasonably explain why the

seized items were not timely given in custody of responsible persons and

why he misinformed the Court about handing over the custody of seized

items. It is also not explained why he himself conducted the examination

of seized items while there is an established procedure to get the liquor

examined though professionally trained examiners. Shri Vishvabandhu

Choudhary has not given any details whether he had that professional

training of examining the liquor.

22. It is relevant to note here that Shri Vishwabandhu Choudhary sought

information about the place from where the liquor was seized and exhibit

P/6A as well as P/7A are the relevant documents in this regard. Patwari

Bholadeen Choudhary (PW/4) has been examined in context of these two

documents. Exhibit P/7A was prepared by him which is Naksha trace in

which the place from where the liquor is seized is shown to be situated in

a land bearing survey No.929 and the copy of Khasra Panchshala Exhibit

P/6A given by Patwari shows that appellant Dhyan Singh was the

Bhoomiswami of Survey No.929/2 and not of Survey No.929. The

investigator namely Shri Vishvabandhu Choudhary made no efforts to

seek clarification in this difference of survey number of property.

23. The discussion as above reveals that Shri Vishwabandhu Choudhary

conducted the whole proceedings in this case i.e. from receiving the

information till the filing of report and he did not allow any other person

take the task of investigation of crime or examination of seized items. His

testimony has found no corroboration from independent witnesses and

inexplainably the members of raiding party have also not been produced

as witnesses. The revenue record does not have any corroborative value.

The seized item was not deposited timely with responsible authority and

there was in excusable absence of seizure chit bearing the signatures on

the items produced before the Court.

24. It has already been discussed that there is presumptive clause under

Section 43 of M.P. Excise Act. Hence, the direction given in the

Mohanlal (Supra) case is applicable here. Accordingly, in the light of

these infirmities and inconsistencies, the prosecution case is found to be

shrouded with grave suspicion. Hence, guided by the principles laid down

in Mohanlal (Supra) case, this revision is allowed and applicants are

acquitted from the charges of Section 34(2) M.P. Excise Act.

25. Applicants are in custody, they are directed to be released forthwith.

The fine amount, if any deposited by them shall be refunded to them.

(ANURADHA SHUKLA) JUDGE

RC/DevS

Digitally signed by DEVESH K SHRIVASTAVA Date: 2023.07.18 11:28:41 +05'30'