<^ytl^£^ l^'W6&SS^t IN THE HIGH COURT OF JUDICATURE AT BILASPURfC.G^ CRLMINAL REVISIOMNO. ^4 06 APPELLANT (In - Jail) 1) Suresh Kumar S/o Sukaluram Satnami Aged about, 21 years, R/o. Village Basula, PS Ghumaka, Distt- Rajnandgaon (C.G.) VERSUS State of Chhattisgarh RESPONDENT Criminal Revision Under Section 397/401 of thej^ode of Criminal Procedure ss ^K&^. h •^. HI6H COURT OF CHHATTIS6ARH AT BILASPUR Cf^evi^w No. 134/2006 Singl®Bench: Hon'ble Shri Dilip Raosaheb Deshmukh. J. Suresh Kumar Vs. State of Chhatt'isgarh Post fo]-~"^a-_y 03 2-CTl Sd/- Difi-P Raosaheb Deshmukh Judge B@' fci^::^l i^ HI6H COURT OF CHHATTIS6ARH AT BIUkSPUR mNo. 134/2006 Single Bench: Hon'ble Shri bilip Raosaheb Deshmukh, J. 5uresh Kumar Vs. State of Chhatt'isgarh PRESENT: - Shri S.C.Verma, leamed counsel for the applicant. Shri Ashish Shukla, 6.A./Addl. Public Prosecutor for -the State. ORbER (Delivered on2<?-03-2006) This Criminal Revision is directed against the judgment dated 16-02-2006 delivered by the leamed Sessions Judge, Rajnondgaon in Criminal Appeal No.04/2005, affirming the judgment dated 13-01-2005 delivered by the learned Judiciat Magistrcts First Class, Rajnandgaon in Criminal Case No.1587/2004 whereby the applicant herein was convicted under Section-34(l)(a) of Chhattisgarh Excise Act. 1915 (hereinafter referred to as the "Act") and was sentenced to undergo rigorous imprisonment for 1 year and fine of Rs.25,000/-. 2 . The factual matrix in brief is that on 26-08-2004 upon receiving a secret information that the applicant herein was in possession of illicit country made liquor, PW-2 Excise Sub- Inspector K-R.Taram Circte-B, Rajnondgaon, without obtaining a search warront for wont of time, proceeded to the spot and intercepted the applicant herein on Khairagarh Road, Rajnandgaon and seized 30 liters country made liquor made from Mahua from the possession of the cppellant in a black sBt%RB;KS: s^ ^^g%l%%S^^SS%Kt? cotoui'ed Jerrican. Shri ICL.Tarom PW-2 examined the contents of the Jerrican by smelling, -tasting and by performing litmus test and found that it was country made liquor. 30 bulk liters of country made liquor contained contained in a Jerrican was seized in presence of witnesses Ishwar PW-1 and Neeraj Shrivcistdva PW-3. The applicant was prosecuted for the offences punishable under 5ection-34(l)(a) of C.6. Excise Act. 3. The cppellant abjured the guitt. The prosecution examined Excise Sub Inspector K.L.Taram PW-2 and independent witness Ishwar Prasad PW-1 and Neeraj Shrivostava PW-3. No evidence was led in defence. Relying upon -rtie testimony of Excise 5ub Inspector K.L.Taram PW-2 which was supported by Neeraj Shrivastava PW-3 in materia! part-iculars, leamed trial Jud9C convicted and sentenced the appeltant as aforesaid in para-1. Appeat preferred by the oppticant herein was dismissed by the impugned judgment delivered by learned Sessions Judge, Rajnondgaon as shown in para-1. Shri S.C.Verma, tearned counsel for the appticant has pressed this revision only on the ground of non-compliance of Section- 57 and 57-A of Act. It was contended that non-complicnce of Section-57 and 57-i4 of the Act vitiates the prosecution. Reliance was placed on a decision of this Court rendered m Santosh and Another Vs. State of Chhattisaarh in Criminal Revision No.273/2005 decided on 29-09-2005 and Dubin Ram Vs. State of Chhatt'isgarh in Criminat Revision No. 156/2005 decided on 30-09-200S wherein it was held that non-compliance of provision of Section-57 and 57-A of -^ ^ ,.the Act vitiates the prosecution. On the other hond. Shri Ashish Shukta, learned 6ovt. Advocate argued in support of the impugned judgment. '^- The only point which thus requires consideration in this Criminal Revision is whether there is non-compliance of Section-57 and 57-A of the Act by the Excise Sub Inspector Shri K.L.Taram PW-2 after effecting the seizure of 30 bulk liters of country made liquor from the possession of the applicantherein. iffi 6. Section-57 ond 57-A of the Act read as under :- Seetion-57-Report' by Excise Officer- Where any Excise Officer below the rank of Collector makes any arrest, seizure or search under this Act, he shall, within twenty-four hours thereafter, make a full report of all the particubrs of the arrest, seizure or search to his immediate official superior, and shall, unless bail be accepted under section 59, take or send the person arrested, or the thing seized, with atl convenient dispatch, to a Judicial Magistrate for trial or adjudication. Section-57-A- Police to take charge of arl'icles seized- An officer in char9e of a police station shall take charge of ond keep in safe custody pendin9 the orders of a magistrate or an Excise Officer, all articles seized under this Act which maiy be delivered to him, and shall allow any Excise Officer who moy accompany such artictes to the police station, or who may be deputed for the purpose by his superior officer, to affix his seal to such articles <md to take samples of and from -them. AH somples so taken shall also be sealed with the seal of the officer in charge of the police station. A plain reading of the aforesaid provisions clearly shows ^ that whe.Se. * an Excise Officer below the ronk of Coltector makes any arrest, seizure or search under the Act, he shaU B;)i?il!!l -IBSHBSSSIiB'SiiiBI^^^^BIB^BiB'SSJBSB^BB within twen-ty-four hours thereafter, make a full report- of all the particulars of the arrest, »izure or search to his immediate official superior. Section-57-A of -the Act also requires that an officer in chargeof a police station rfiall take charge of and keep in safe custody pending the orders of a magistrate or on Excise Officer, all articles seized under this Act which inay be delivered to him, ond shall allow nny Excise Officer who may accompany aich articles to the police station, or who may be depu-ted for the purpose by his ajperior officer, to affix hisseal to such articles and to tcike samples of and from them. All samples so taken shall also be sealed with the seal of the officer in char9e of the police station. 7. Section-34 of the Act entails severe punidiment of imprisonment which may extend to three years cnd fine which shall not be less than Rs. 25,000/- but may extend to one takh rupees upon conviction for an offence covered by clause-a of Sub-section-1, where the quouitity of the intoxicoait bemg liquor found at the time or in the course of detection of the the offence exceeds twenty five bulk liters. Section-57 and 57-A protects the accused alleged of any offence under the Act from a folse or a bo9us prosecution. The intention of enacting Section-57-A also appears to be that the articles seized should be proved by the prosecution to be country made Ijquor and to give an opportunity to the accused to prove otherwise by sending one of the samples so taken for analysis, if so desired. Section-57-A further ensures that the articles seized and the samples taken therefrom are not tampered with. <d»o1" Needless to say that it is incumbent upon the Excise Officer :^:i ;^^!" !;.:! 1 u' : 1 •^ making the arrest, seizure or search under the Act to produce ' the intoxicant seized and the samples so prepaped in the Courl- so as to facilitate comparison of the seals as also verification of the quantity by the Court, if so desired. Thus, the provision of Section-57 dnd 57-A are mondatory ond enure to the benefit of the accused to establish his innocence. 8. After perusat of the record, I find that in the present case Excise Sub Inspector K-L.Taram PW-2 has not given any reason for arriving at a conclusion that the country made liquor seized from the possession of the cpplicant herein was 30 liters. Since severe punishment is prescribed in a case where a quantity of intoxiamt exceeds 25 bulk liters it is incumbent on the prosecution to prove that the quontity seized was meosured and exceeded 25 butk liters. The Prosecution is therefore required to establidi that the quantity seized from the opplicant herein was measured. It is alteged that the applicant was carryin9 30 bulk liters of country made liquor in a jerricon. In the World Book Dictionary, the word "jerrican" means a 5 gallon container. In the same Dictionary, a gallon is defined to be equivatent to 4.546 liters meoning thereby that a jerriccn would not contain beyond 22.73 liters. Thus, the testimony of K.L.Taram PW-2 is rendered doubtful since he neither measured the quantity of the country made tiquor alleged to have been seized from the pos^ssion of the applicant from a Jerrican nor produced the same in Court. Adverse inference can therefore safely be drawn against the prosecution for non production thereof. 10. Indepencksnt witness Ishwar Prasad PW-1 also did not support the prosecution story. l-1e is a kxbourer at Rajnondgaon and his presence at the spot is not established. 1-lis testimony that he signed the seizure Panchnama at the behest of the Exci^ Sub Inspector cannot be brushed aside as false. Another witness Neeraj Shrivastava PW-3 has stated that while he was going to Khairagarh he saw a crowd near the canal and stopped out of curiosity. Excise Sub In^aector Shri K.I-.Taram PW-2 informed him that liquor has been seized. He saw that tiquor was kept in one Jerriam. He also saw that the opplicant herein was sitting there. However, in cross examination he hos stated that the seizure was not effected in his presence. It is not clear from his testimony whether he looked inside the jerrican to see what it contained. Thus, all thot he saw was a jerrican on the spot. It is pertinent to note that both Ishwar Prasad PW-1 and Neeraj Shrivastava PW-3 have not stated that Excise Sub Inspector K-L.Taram performed any test on the intoxicouit atleged to hwe been seized from the possession of the cpplicont herein as stated in paragraph-Z (Supra). It is thus not established by the prosecution that 30 bulk liters of country made liquor was seized from the possession of the applicant herein. It is pertinent to note from the order sheet dated 01-10-2004 written by the trial Jud9e that the seized propert/ was not produced before the Court. No reason has been assigned by the Excise Sub Inapector 5hri K.L.Taram PW-2 for not depositing the Jerrican containing 30 liters of country made liquor with the Officer in charge of the concemed Police Station or to take any samples therefrom and to seal it. There i- is nothing on record to show as to where and in whose custody the 30 bulk liters of country made liquor was kept till filing of chalkwi on 01-10-2004. There is also no-ttiing to show that Excise Sub Inqiector Shri K-L.Taram PW-2 had, within 24 hours after making the seizure made a futl report of all the particutars of arrest, seizure or search to his immediate official superior as required under Section-57 of the Act. Thus, there is total non-compliance of 5ection-57 and 57-A of the Act. 11. Having thus considered the evidence ted by the prosecution, the foilowing points emerge ;- (A) There is total non-compliance of Section-57 and 57-A of the Act by Excise Sub Inspector K.L,Tarom PW-2 which vitiates the prosecution. (B) It is not estabtished beyond doubt that the applicouit was found in possession of country made liquor in excess of 25 bulk liters. (C) Testimony of Shri K.L.Taram PW-2 is rendered doubtful since he did not produce the intoxicant alleged to hove been seized from the opplicant in the trial Court-. (D) Independent witness Ishwar Prasad PW-1 ond Neeraj Shrivastava PW-3 did not corroborate the testimony of Excise 5ub Inspector K.L.Taram PW-2 relating to seizure and test performed upon the intoxicant alleged ^MVt*". to have^seized from the possession of the applicant. 12. In the result, the revision is allowed. The conviction of the appellant under Section- 34(l)(a) of Chhatt-isgarh Excise Act. 1915 ouid the sentence awarded thereunder are set aside. The applicant is acquitted. Fine if paid, shall be refunded to the opplicant. Sd/- Dilip Raosaheb Deshmukh Timxme