Order On Board

01-09-2022

1. This Criminal Revision is directed against the judgment dated 03-03-2011 delivered in Criminal Appeal No.40/2009 by the IIIrd Additional Sessions Judge (FTC) Raigarh whereby conviction of the applicant under Section 34 (2) of the Chhattisgarh Excise Act and sentence of R.I. for one year and fine of Rs.25000/-, in default of payment of fine additional five months' S.I inflicted by the Chief Judicial Magistrate, Raigarh in Criminal Case No.1268/2007 dated 22-09-2009 has been affirmed.

2. The brief facts are that on receiving secret information that the applicant was in unauthorized possession of the country-made plain liquor the Investigating Officer I.B. Singh (PW-1) seized 151 quarters of country-made liquor kept in different bags on a bicycle, from the possession of the applicant on 12-08-2007 at about 5:15 a.m. The prosecution was launched against the applicant for offence publishable under Section 34(2) of Chhattisgarh Excise Act. The applicant abjured the guilt and pleaded non-guilty. The prosecution examined four witnesses in support of the case and exhibited six documents. The learned trial Court after appreciation of the evidence convicted and sentenced the applicant as mentioned in the opening paragraph.

3. Being aggrieved by the judgment of conviction and sentence recorded by learned trial Court the applicant preferred Criminal Appeal No.40/2009 and the same has been dismissed by the learned Court below vide the impugned judgment.

4. Smt. Indira Tripathi, learned counsel for the applicant submits that the provision contained under Section 57-A of the Chhattisgarh Excise Act which reads as under has not been complied with:-

“Section-57-A. Police to take charge of articles seized – An officer in charge of a police station shall take charge of and keep in safe custody pending the orders of a Magistrate or an Excise Officer, all articles seized under this Act which may be delivered to him, and shall allow any Excise Officer who may accompany such articles to the police station, or who may be deputed for the purpose by his superior officer, to affix his seal to such articles and to take samples of an from them. All samples so taken shall also be sealed with the seal of the officer in charge of the police station.”

Therefore, in a prosecution under Section 34 of the Excise Act, the prosecution is required to establish that the country-made liquor was sent for chemical analysis and it was kept in the safe custody of the officer In-charge of the police station, seal were affixed on such articles after taking samples and liquor were produced before the trial Judge so as to facilitate the trial Judge to examine that the seal on the samples taken from the seized articles were intact. Learned counsel for the applicant further submits that punishment for the offence alleged is for one year and looking to records the applicant has already served 1 month and

25 days jail sentence.

5. On the other hand learned counsel for the State opposes the argument advanced by learned counsel for the applicant .

6. I have heard learned counsel for the parties and perused the record.

7. From perusal of the seizure memo it appears that 151 quarters of the liquor was seized by the Investigating Officer I.B. Singh (PW-1) and he himself analysed it. The seized articles were not sent for chemical analysis to any expert. There is no oral or documentary evidence to the effect that the articles were sealed and were kept in proper custody and the articles were produced before the learned trial Judge to examine that the seal on the samples taken from the seized articles were intact.

8. In the above mentioned circumstances, I am of the considered opinion that the possibility of tampering with the seized articles can not be ruled out. The mandatory provision contained in Section 57-A of Chhattisgarh Excise Act has not been complied with. The seized articles were not sent for chemical analysis which makes the prosecution story doubtful. Seal