Chattisgarh High Court
Punitram vs The State Of Chhattisgarh on 4 October, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 77 of 2016
Reserved on 26.09.2023
Delivered on 04.10.2023
1. Punitram S/o Domar Singh Aged About 30 Years
R/o Village Kavantintola, Thana Korar, Distt. U.B. Kanker, Chhattisgarh.
2. Takesh Kumar Kuldeep S/o Sumanram Aged About 24 Years
R/o Village Andi, Thana Korar, Distt. Uttar Bastar Kanker Chhattisgarh.
---- Applicants
Versus
The State Of Chhattisgarh Through District Magistrate, Distt. U.B. Kanker
Chhattisgarh.
---- Respondent
For Applicants : Ms. Bhavika Kotecha, Adv.
For Respondent/State : Ms. Shubha Shrivastava, P.L.
Hon'ble Shri Justice Sanjay Kumar Jaiswal
CAV JUDGMENT
1. The present criminal revision has been filed under section 397/401 of Cr.P.C. against the judgment of conviction and order of sentence dated 18.01.2016 passed by the learned Additional Sessions Judge, Uttar Bastar Kanker in Criminal Appeal No.25/2015 whereby the learned appellate Court has affirmed the order of conviction and sentence dated 05.06.2015 passed by the learned Chief Judicial Magistrate, Uttar Bastar Kanker in Criminal Case No. 1564/2013 convicting the applicants for the offence punishable under Section 34 (2) of the CG Excise Act and sentencing both of them to undergo R.I. for one year with fine of Rs.25,000/- with default stipulations.
2. As per the prosecution case, on 03.10.2013, on receiving a secret 2 information, the police personnel of PS Charama stopped the motorcycle of the applicants and upon search, 17.10 liters of Golden Goa Whisky were found which the applicants were carrying on their motorcycle in two bags. Based on this, offence was registered against the applicants and charge sheet was filed for the offence under Section 34(2) of the CG Excise Act.
3. So as to hold the accused/applicants guilty, the prosecution has examined as many as 7 witnesses. Statement of the accused/applicants were also recorded under Section 313 of the Cr.P.C. in which they denied the charges leveled against them and pleaded innocence and false implication in the case.
4. After hearing the parties, vide impugned judgment dated 05.06.2015, learned Chief Judicial Magistrate convicted the accused/applicants for the offence punishable under Section 34 (2) of the CG Excise Act and sentenced both of them to undergo R.I. for one year and to pay fine of Rs. 25,000/-, in default of fine to undergo RI for 4 months. In appeal, the order of the trial Court has been affirmed by the Appellate Court. Hence, the present revision.
5. Learned counsel for the applicants submits that the independent witness has not supported the case of prosecution and turned hostile. He further submits that there is no chemical examination report available. He lastly submits that the applicants have already undergone jail sentence for about 1 ½ months, incident took place in the year 2013 and thereby almost 10 years have rolled by since then. He further submits that the prosecution has not been able to prove the case beyond reasonable doubt and therefore, giving the benefit of doubt to the applicants, they may be acquitted of the charge levelled against them. In support of his contention, learned counsel relied upon order dated 17.07.2023 passed by the Hon'ble 3 High Court of M.P. in Criminal Revision No.1239 of 2023, Dhyan Singh & another Vs. State of Madhya Pradesh.
6. Learned counsel for the State supported the impugned judgment and submitted that the appellate Court has not committed any error while passing the impugned judgment. He contended that the independent witness had put his signature on the seizure memo. He further contended that litmus paper test is sufficient for chemical examination. In support of his contention, State counsel relied upon AIR 1967 SC 1550 (State of Andhra Pradesh Vs. Madiga Boosena & Ors.)
7. Heard learned counsel for the parties and perused the material available on record including the impugned judgment.
8. In this case, independent witnesses PW-1 Tilak Ram and PW-2 Ghanshyam to the seizure have turned hostile and have not prove the seizure from the accused. PW-6 Shushila Sahu (Excise Sub-Inspector) has stated that after testing only five quarter of foreign liquor from the seized quantity, the report Exhibit P 10 has been given. According to this witness, the test was done by sight, smell, taste, litmus paper, thermometer and hydrometer. No test was done in laboratory. Excise Sub- inspector Sushila Sahu has stated that the substance tested above is considered to be foreign liquor whiskey on the basis of test and experience, especially the test using litmus paper can be called a chemical test.
9. In the case of Mohanlal Vs. State of Punjab, (2018) SCC Online SC 974, Hon'ble Supreme Court has 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 4 and the same person.
10. Hon'ble Apex Court in the said case 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.
11. If we consider on the basis of the concept expressed in the above judicial pronouncement of the Honorable Supreme Court, in this case it is clear that the seizure from the accused has not been proved by the independent witnesses. P.W. 5 Revaram Sahu (Assistant Sub Inspector) who had seized the liquor has stated to have taken both the witnesses with him whereas his staff P.W. 7 Lata Nareti (Constable) has stated that both the witnesses were passing by the spot of the incident. P.W. 5. Revaram Sahu has stated that after reaching village Kottara, they were waiting on the road for the accused to come, while on the other hand, P.W. 7 Lata Nareti has stated that the accused was arrested within 2 km from both the villages Padampur and Kottara. Thus, there is a contradiction regarding the place of seizure. P.W. 5 Revaram Sahu has admitted that the time of seizure of vehicle and liquor is 18.20 p.m. and on the Dehati Nalisi, time is also mentioned as 18.20 pm. He has admitted that crime number 160/2013 is written in the seizure exhibit P. 1. He has also admitted that he had written exhibit P-1 after returning to the police station. In this situation, when the independent witness has not proved the seizure proceedings, then coming 5 back to the police station and writing the seizure makes the entire case doubtful.
12.P.W. 5 Revaram Sahu has also admitted that instead of sending the entire seized material for testing, he had sent only five quarter. He has also admitted that there is no mention of sealing of liquor in the seizure. It is also noteworthy that the test report of P.W. 6 Sushila Bai (Excise Sub Inspector) Exhibit P. 10 is prepared four days after the seizure. There is no document presented as to where the seized substance was kept during this period.
13. In view of the decision rendered by the Hon'ble Supreme Court in the case of Mohanlal (supra), when the seizure proceedings are not corroborated by any independent witness and the statement of the seizure officer is not reliable beyond all reasonable doubts, then the conviction of applicants is not found to be sustainable and they get the benefit of doubt.
14. Hence, the criminal revision is allowed. The impugned judgment of conviction and order of sentence of the applicants under Section 34(2) Excise Act is set aside. The applicants are acquitted of the charge levelled against them. If the fine amount has already been deposited by the applicants, the same shall be refunded to them.
Sd/-
(Sanjay Kumar Jaiswal) JUDGE Khatai