Conviction under the Excise Act cannot be sustained where there are material contradictions in witness testimonies, failure to conduct a test identification parade for a delayed arrest, and non-compliance with statutory requirements regarding the sealing and reporting of seized intoxicants.

Order on Board

1. The present revision filed under Section 397 /401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 24.08.2016 passed in Criminal Appeal No.02/2016 by the 5th Additional Sessions Judge, District – Bilaspur (C.G.), whereby judgment dated 28.11.2015 passed by the Chief Judicial Magistrate, District – Bilaspur (C.G.) in Criminal Case No.896/2013 has been affirmed by the learned Appellate Court wherein the applicant has been convicted under Section 34(2) of the Chhattisgarh Excise Act, 1915 and sentenced R.I. for 1 year & fine of Rs.25,000/-, in default of payment of fine, additional R.I. for 6 months.

2. According to the prosecution, on 31.12.2012, during a special mission against illegal liquor, Ajay Dhurve (PW-4), Excise Sub- Inspector, and other staff were on patrolling near Radhika Water Park on the Bilaspur–Kota main road. At that time, one accused person was seen riding an L.M.L. Freedom motorcycle towards Nevra. He was signaled to stop the vehicle, upon which he parked the motorcycle and fled towards the adjoining fields near the water park. The officials chased the accused/applicant and made efforts to apprehend him; however, he managed to escape from the spot. Thereafter, in the presence of witnesses, the said vehicle was searched. Upon search, liquor was recovered as per the seizure memo (Ex.P-1). Based on the vehicle and the description (appearance) of the accused, local witnesses identified the accused as Basant Suryavanshi. As the accused was found to be in possession of more than 5 liters of liquor (48 quarters of country made liquor), an offence under Sections 34(1)(a)(2) and 59(a) of the Excise Act was registered against him, and investigation was initiated. Subsequently, on the basis of secret information, on 24.03.2013 vide arrest memo (Ex.P-9), applicant - Basant Suryavanshi was arrested.

3. After completion of investigation, complaint was filed before the Court of Chief Judicial Magistrate, District - Bilaspur. The applicant abjured the guilt and pleaded innocence. So as to prove the guilt of the accused/applicant, the prosecution has examined as many as 5 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 and sentenced the accused-applicant. The said judgment was challenged by the accused in criminal appeal, however, the Appellate Court, vide judgment dated 24.08.2016 affirmed the conviction and sentence passed by the Trial Court. Hence, this revision.

5. Learned counsel for the applicant submits that the Trial Court as well as the Appellate Court, without properly appreciating the evidence available on record, were not justified in convicting and sentencing the applicant for the aforesaid offence. He further submits that there are material contradictions and omissions in the statements of the prosecution witnesses and their statements do not corroborate with each other, this apart, the seizure witnesses have turned hostile. It is further contended that there is no evidence available on record which could show that the seized property was kept in “sealed” condition nor sample seal is affixed in the seizure memo. He further submitted that no test identification has been conducted by the police. As such, the prosecution has failed to establish its case beyond reasonable doubt. On these premises, it is prayed by counsel for the applicant that applicant be acquitted from the offence leveled against him. In support of his arguments, he placed his reliance upon a decision rendered in the matter of Suresh Kumar vs. State of Chhattisgarh reported in 2006 (3) CGLJ 259. Lastly, he submits that the fine amount has already been deposited before the trial Court by the Applicant.

6. On the contrary, learned State Counsel, while supporting the impugned judgments, submits that the learned Trial Court as well a