IMPORTANT POINT
The prosecution must establish its case beyond reasonable doubt, adhering to statutory requirements; failure to do so results in acquittal.

JUDGMENT :

Radhakishan Agrawal, J.

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 18.08.2011 passed in Criminal Appeal No.05/2011 by the Second Additional Sessions Judge, Jagdalpur, Place – Kondagaon, Bastar (C.G.), whereby judgment dated 07.05.2010 passed by the Judicial Magistrate First Class, Keshkal (C.G.) in Criminal Case No.286/2009 the applicant has been convicted under Section 34(1)(a) of the Chhattisgarh Excise Act, 1915 and sentenced to undergo RI for three months and to pay fine amount of Rs.5,000/- and in default of payment of fine, additional RI for one month. The learned Appellate Court while allowing the appeal in part confirmed the conviction of the applicant whereas reduced the jail sentence from three months RI to one month RI and directed to pay fine of Rs.5,000/-, in default of payment of fine, additional RI for one month.

2. Case of the prosecution, in brief, is that on 18.10.2007, Chander Lal Dhruw (PW-02), Assistant Sub-Inspector, Police Station Keshkal along with other Police Officials went for patrolling to village Bahigaon and on the basis of information from the informer that the applicant is involved in keeping and selling the liquor illegally in the market and without obtaining search warrant reached to the spot and seized 3 liters of country made Mahua liquor in jerrycan which was kept in nylon bag and the same was seized in presence of the witnesses i.e. Raj Kumar Netam (PW-1) and Ramesh Kumar (PW-4) at about 16:20 O’Clock. The seized article was sent for chemical examination on 28.10.2007 which was examined by R.K. Bhagat (PW-03), Excise Sub-Inspector. On being examined, the seized article was found to be country made Mahua liquor.

3. After completion of investigation, charge sheet under Section 34 (A) was filed before the Court of JMFC, Kondagaon. 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 4 witnesses. Statement of the accused/applicant was also recorded under Section 313 of Cr.P.C.

4. Learned trial Court, after appreciation of oral and documentary evidence, convicted the applicant under Section 34 (1) (a) and sentenced her as mentioned in para 1 of this order. The said judgment was challenged by the applicant in criminal appeal, however, the Appellate Court, vide judgment dated 18.08.2011 has confirmed the conviction but reduced the sentence of the applicant from three months RI to one month RI while maintaining the sentence of fine amount and its default sentence, as awarded by the trial Court. Hence, this revision.

5. Learned Counsel appearing for the applicant submits that the prosecution has failed to establish its case beyond reasonable doubt. He further submits that in the seizure memo (Ex.P-1) dated 18.10.2007 at 16:20 O’Clock, the Crime No.163/07 is mentioned at Column No.1, but the prosecution has failed to explain as to how the Crime No.163/2007 has been mentioned in the seizure memo before lodging of the FIR (Ex.P-3) dated 18.10.2007 at 17:55 O’clock. It is also submitted by him that the seizure memo also does not bear any sample seal. The prosecution witnesses have also not supported the case of prosecution. He also submits that the alleged Mahua liquor was seized on 18.10.2007 but it was sent to Excise Sub-Inspector R.K. Bhagat (PW-03) for examination on 28.10.2007 and the prosecution has failed to offer any explanation for the delay in sending the same for examination. He further contends that the prosecution has not produced any evidence to show that where the seized property was kept in safe custody and no Malkhana register has also been produced to show that the seized property was kept in Malkhana in safe custody. It is further contended that no chemical analysis has been conducted by the prosecution to show that the seized article was of liquor. Learned counsel for the applicant has also