A conviction cannot be sustained if the evidence is flimsy and does not meet the legal requirements.

ORDER :

Sachin Singh Rajput, J.

1. Assailing the legality, validity and correctness of the judgment dated 30.03.2010 passed by 3rd Additional Session Judge (F.T.C.), Surguja (Ambikapur) (C.G.) {for short ASJ} in Criminal Appeal No. 58/2010 by which the learned ASJ has upheld the judgment of conviction dated 19.03.2010 passed by Chief Judicial Magistrate, Ambikapur, District Surguja (C.G.) {for short CJM} convicting the applicant under Section 34 (2) (1) of the Excise Act and sentencing him to undergo one year rigorous imprisonment with fine of Rs.25,000/-, in default of payment of fine three month rigorous imprisonment, the applicant has preferred this revision under section 397/401 of Criminal Procedure Code, 1973 {for short Cr.P.C}.

2. Prosecution case in brief is that on the date of incident i.e. 03.12.2009, information was received from an informant that the applicant was going to sell mahua liquor. The applicant was caught and from the possession 31 liter of hand furnaced mahua liquor was seized. No licence was produced by the applicant and hence he was arrested and after due investigation charge sheet was filed.

3. The prosecution examined as many as 4 witnesses in support of its case. The prosecution exhibited 5 documents in order to bring home the guilt of applicant. Statement of applicant under section 313 Cr.P.C. was recorded in which he has stated that he has been falsely implicated and he is innocent.

4. The learned CJM after appreciation of oral and documentary evidence brought before it, convicted the applicant under section 34 (2) (1) of The Chhattisgarh Excise Act, 1915 (for short Act of 1915) and sentenced him to undergo one year rigorous imprisonment and pay fine of Rs.25,000/-, in default of payment of fine further three months rigorous imprisonment was imposed. Being aggrieved by the judgment of conviction and award of sentence, the applicant preferred an appeal under section 374 of Cr.P.C. before the leaned Sessions Judge, Ambikapur, District - Surguja (C.G.). The appeal was heard by the learned ASJ and after due consideration the same was dismissed and the conviction and sentence awarded to the applicant was maintained.

5. I have heard the learned counsel appearing for the parties and gone through the material available on record including the evidence of the witnesses carefully.

6. Learned counsel for the applicant submits that from the evidence available on record the prosecution has not been able to bring home the guilt of applicant without reasonable doubt. The seizure witnesses have not supported the case of the prosecution hence the seizure of mahua liquor cannot be said to be duly proved. He submits that the courts below have committed an error in giving weightage to the statement of investigating officer (PW-3). It is also not proved beyond reasonable doubt that the seized mahua liquor was properly sealed. He further submits that the mahua liquor so seized was presented for examination on 05.12.2009 and seizure was affected on 03.12.2009 and therefore possibility of tempering with the seized mahua liquor cannot be ruled out. To buttress his submissions he placed reliance of a judgment of this court in case of Santosh Nirmalkar Vs. State of C.G. (MANU/CG/0213/2009 : 2009 (3) CGLJ 229).

7. Per contra, learned counsel for the respondent/state supported the impugned judgment and submitted that both the courts below after appreciation of evidence categorically gave finding of guilt of applicant. State counsel submits that even if the seizure witnesses have not supported the prosecution case, conviction can be sustained on the basis of evidence of investigating officer. Hence the seizure of mahua liquor is duly proved and no interference with the same is needed. He further submits that this court is not required to deeply analyze the evidence and may not substitute its own finding in place of well merited finding of conviction arrived at by the courts below. Therefore, revision deserves dismissal from th