The conviction under the Chhattisgarh Excise Act was set aside due to prosecution's failure to prove its case beyond reasonable doubt based on procedural violations.

JUDGMENT :

RADHAKISHAN AGRAWAL, J.

1. Since, both the above captioned revisions arise out of same impugned order dated 27.08.2016, they are being heard together and disposed of by this common judgment.

2. The present revisions filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 27.08.2016 passed in Criminal Appeal No.34/2015 (applicant Sukhpreet Singh in CRR No.830/2016) and 39/2016 (applicant Nageshwar Lodhi in CRR No.986/2016) by the Additional Sessions Judge, Khairagarh, District – Rajnandgaon, Chhattisgarh, whereby judgment dated 26.09.2015 and 20.07.2016 passed by the Additional Chief Judicial Magistrate, Khairagarh, District – Rajnandgaon, Chhattisgarh in Criminal Case No.518/2014, convicting the applicants under Section 34(2) of the Chhattisgarh Excise Act, 1915 and sentencing them to undergo RI for two years and to pay fine amount of Rs.25,000/- each, and in default of payment of fine, additional RI for six months each, has been affirmed by the learned Appellate Court. Hence, these revisions.

3. Case of the prosecution, in brief, is that on 18.08.2014 at about 10:00 PM, Purshottam Nirmalkar, Head Constable (PW-05) had gone for patrolling along with other police staff where he received a secret information that two persons were coming from Durg to village Rengakathera, carrying illicit liquor in their motorcycle bearing registration No.CG-07-AF-5735. The said motorcycle was driven by Nageshwar Lodhi (applicant in CRR No.986/2016) and Sukhpreet Singh (applicant in CRR No.830/2016) was the pillion rider. On the basis of said information, the police stopped the said accused persons/applicants and searched them. On being searched, the present applicants were found in joint possession of 139 quarters of country made liquor (each bottle containing 180 ml) total 25.020 liters, which were kept in 3 cartoon boxes inside a white plastic bag. After following the necessary seizure proceedings, seizure memos (Ex.P-1 and Ex.P-2) and spot map (Ex.P-9) were prepared. Thereafter, the accused/applicants were arrested and crime under Section 34(2) of the Chhattisgarh Excise Act, 1915 was registered against the applicants before the police chowki Jalbandha, under Crime No.0/14 and subsequently, FIR (Ex.P-5) was registered in Poice Station – Khairagarh, District - Rajnandgaon. It is alleged that total 9 bottles of the seized article were sent for chemical examination on 30.08.2014 which was examined by S.N. Sahu (PW-02), Excise Sub-Inspector. On being examined, the seized article was found to be country made Mahua liquor.

4. After completion of investigation, charge sheet under Section 34 (2) of the Chhattisgarh Excise Act, 1915 was filed before the Court of Additional Chief Judicial Magistrate, Khairagarh. The applicants abjured the guilt and pleaded innocence. So as to prove the guilt of the accused/applicants, the prosecution has examined as many as 5 witnesses. Statement of the accused/applicants was also recorded under Section 313 of Cr.P.C.

5. Learned trial Court, after appreciation of oral and documentary evidence, convicted the applicants under Section 34 (2) of the Chhattisgarh Excise Act, 1915 and sentenced them as mentioned in paragraph 1 of this judgment. The said judgment was challenged by the applicants in criminal appeal, however, the Appellate Court, vide judgment dated 27.08.2016 affirmed the order of conviction and sentence of the applicants. Hence, these revisions.

6. Learned Counsel appearing for the applicants submit that the prosecution has utterly failed to establish its case beyond reason