Decided on December 12,2005

STATE OF CG Respondents


SUNIL KUMAR SINHA,J. - (1.) THIS revision has been directed against the impugned judgment dated 07-5-2005 passed in Criminal Appeal No. 102/2005 by the 11th Addl. Sessions Judge, (F.T.C.) Raipur (C.G.) arising out of the judgment dated 31-3-2005 passed in Criminal Case No. 602-2005 by the C.J.M., Raipur, whereby the appeal preferred by the appellant against the conviction and sentence awarded by the trial Court, under section 34(1) & (2) of Excise Act, has been dismissed by the appellate Court.
(2.) THE facts of the case are that on 26-2-2004, an information was received by Assistant Sub-Inspector Shri Ramesh Manjhi (RW.2), that some illicit liquor is being transported in an Auto Rickshaw bearing Regn. No. C.G.04 ZA 5580 from Gudhiyari to Teldhani Naka. On receipt of this information, he made contact with the other patrolling party and got them accompanied with him and ultimately the aforesaid Rickshaw was located near Teldhani Naka, Raipur. The Rickshaw was being driven by accused Pyarelal and present applicant/accused was sitting in it. When the vehicle was searched, it was found that there were 144 quarter bottles of Indian Made Goa English Liquor containing 180 Ml. in each bottle in Rickshaw. After the seizure, two notices were given vide Ex. R3. & P-4 to the accused persons for producing the documents in relation to ownership/legal transportation of the aforesaid liquor u/s 91 of Cr.P.C. but the accused persons could not produce any document and made endorsement to this effect in the notice Ex. P.3 & P-4 by their own hand-writing putting their signatures. The seizure of the aforesaid liquor was made vide Ex. P.2 and the Auto Rickshaw was also seized vide Ex.P. 1. At the trial, two punch witnesses namely Rajendra Singh (P.W. 3) and Daulal (PW. 5) turned hostile and had not supported the case of prosecution. The learned trial Judge, believing on the testimony of the Investigating officer, Ramesh Kumar Manjhi (P.W.2), and further believing the testimony of another member of the patrolling party, Head Constable Radhe Shyam (P.W. 1), held the accused persons guilty of the offence punishable u/s 34(1) & (2) of the Excise Act and sentenced them to undergo R.I. for one year and to pay fine of Rs. 25,000/-, 25,000/- each, in default of payment of fine, to under go additional R.I. for 9 months-9 months each. Against the aforesaid judgment and order passed by the trial Court, the accused persons preferred an appeal before the Sessions Court but the Sessions Court dismissed their appeal and confirmed the conviction and sentence passed by the trial Court, It is against this judgment of the appellate court, this revision has been filed by one of the accused persons namely Manoj Tiwari.
(3.) REFERRING to a decision rendered in the matter of Nandu @ Nandkishore Vs. State of M.P.1, learned counsel for the applicant argued that since both the witnesses of seizure have turned hostile and the version of the investigating officer is not supported by the other independent witnesses, therefore, the conviction and sentence awarded to the applicant is not proper. He relies on para 11 of the aforesaid judgment.;

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