Order on Board

26.09.2022

1. This criminal revision is filed against the judgment dated 25.03.2014 passed by the learned Sessions Judge, Dhamtari, District Dhamtari in Criminal Appeal No. 61/2013, whereby the judgment of conviction and order of sentence dated 16.07.2013 recorded by the learned Chief Judicial Magistrate, Dhamtari, District Dhamtari in Criminal Case No. 600/2013 wherein the applicant was convicted under Section 34 (2) of C.G. Excise Act and sentenced to undergo R.I. for one year with fine of Rs.25,000/-, in default of payment to further undergo S.I. for thirty days, has been affirmed.

2. Case of the prosecution is that on 08.04.2013 on a secret information, Excise Sub-Inspector conducted raid in Dhaba of the present applicant, situated in Village Sihad and seized 19 quarters of Topgun Whiskey and 02 liters of country made Deshimasala.

3. After completion of investigation, charge-sheet was filed for offence punishable under Sections 34 (1) (A) & 34 (2) against the present applicant. The learned trial Court framed charge under Section 34 (2) of C.G. Excise Act. The applicant abjured the said charge and pleaded non-guilty. The prosecution examined as many as 04 witnesses in support of the case and exhibited 19 documents and statement of the applicant under Section 313 Cr.P.C was recorded.

4. The learned trial Court after appreciation of oral and documentary evidence, convicted the applicant as mentioned in para-1 of this order. The appeal was preferred by the applicant before the Sessions Court, Dhamtari and same was dismissed against which the instant criminal revision is filed.

5. Learned counsel for the applicant submits that the applicant has falsely been implicated in this case, no seal was affixed on the seized article, the seized liquor was never produced before the trial Court and there is no entry in malkhana register with regard to seizure. It is further submitted that the independent witnesses have not supported the case of prosecution and only on the basis of evidence of the police witnesses, the applicant has been convicted.

6. On the other hand, learned counsel for the State opposes the argument advanced by learned counsel for the applicant and submits that the liquor was seized from Dhaba of the present applicant. The de facto possession of the present applicant over the illicit liquor has been proved by the prosecution witnesses, the learned courts below have convicted and sentenced the applicant after appreciating the entire material available on record and there is concurrent finding recorded by the two courts below which does not require interference by this Court in revisional jurisdiction. 7. I have heard learned counsel for the parties and perused the records.

8. It appears from the record that on the basis of secret information raid was conducted in the Dhaba of the present applicant. Vide Ex.-P/3 seizure was conducted and vide Ex.-P/4 illegal liquor was seized. Illegal liquor was examined by PW-1 Nishidh Koshti, Excise Sub-Inspector who stated that liquor has been seized from the possession of present applicant and by taste, smell and litmus test, it is held to be liquor. The applicant was arrested on 08.04.2013. Furthermore, PW-1 who is posted as Excise Sub-Inspector, has supported the case of prosecution in examination-in-chief, but in cross- examination, he has admitted that he has not prepared the information memo and same was not intimated to the superior authority. In para-9, PW-1 has further admitted that he has not submitted any document regarding sealing of seized liquor and he has also admitted that the seized article has not been chemically examined. The seizure witnesses PW- 3 Ramesh Soni and PW-4 Bhola Soni have supported the case of prosecution and in the statement recorded under Section 313 Cr.P.C., the applicant has taken plea of false implication.

9. Now coming to the issue of litmus test of the seized liquor. Consumable Alcohol is Ethyl Alcohol (C H OH), while Methanol (CH OH) is