✦ High Court of India

Criminal Appeal No. 45 of 2002 · The High Court

Case Details

IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 250 of 2006 An application under Section 401 of the Code of Criminal Procedure challenging the judgment and order dated 08.08.2002 of learned S.D.J.M., Rayagada in 2(a) CC No.95 of 1997 (T.R. No. 1600 of 1997) and the judgment and order dated 07.03.2006 of learned Addl. Sessions Judge, Rayagada in Criminal Appeal No.45 of 2002. -------------- Goriamani Bhatra ..…. Petitioner -versus- State of Orissa …… Opp. Party --------------------------------------------------------------------------- For Petitioner : Mr. Arun Ku. Acharya, Adv. For Opp. Party ---------------------------------------------------------------------------- : Mr. M.R. Mishra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 30.05.2025 Savitri Ratho, J This application under Section 401 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 07.03.2006 passed in Criminal Appeal No. 45 of 2002 by the learned Addl. Sessions Judge, Rayagada, confirming the conviction of the petitioner under Section 47(a) of the Bihar and Orissa Excise Act and sentence to undergo R.I. for a period of six months and to pay a fine of Rs.500/-, in default to undergo R.I. for CRLREV No. 250 of 2006 Page 1 of 11 a period of one month by the judgment dated 08.08.2002 passed by the learned S.D.J.M., Rayagada in 2(a) C.C. No. 95 of 1997 (T.R. No. 1600 of 1997). PROSECUTION CASE 2. The prosecution allegation in brief is that the Excise A.S.I. of Rayagada along with his constable Trinath Das were patrolling at Rayagada town on 09.07.1997. They found the petitioner was coming carrying a motor tube at J.S. Co. Chhak. On suspicion, the A.S.I. detained the petitioner and when searched, he found the petitioner was carrying liquor in that tube. The A.S.I. of Excise examined the liquor with blue litmus paper and from the test, he came to know that it is I.D. liquor. He has measured the liquor and seized the alleged liquor under a seizure list in presence of witnesses, arrested the petitioner and produced him before the S.I. of Excise Rayagada and the S.I. examined the alleged liquor with blue litmus paper and hydro metro and opined the same to the I.D. liquor. The S.I. released him on bail and submitted prosecution report against the petitioner. WITNESSES 3. During course of trial, in order to prove its case, the prosecution examined four witnesses. CRLREV No. 250 of 2006 Page 2 of 11 P.W.1 Buti Khura is a non-official witness and P.W.2 Prasanna Ku. Acharya is the S.I. of Excise who examined the alleged liquor, P.W.3 Haribandhu Gadaba is the A.S.I. of Excise, Rayagada, who seized the alleged liquor from the possession of the petitioner and P.W.4 Trinath Das is the excise constable as well as a seizure witness who accompanied P.W.3. 4. The prosecution exhibited one document which is the report of P.W.2. 5. The defence plea was complete denial and false acquisition and no witness was examined on behalf of the defence.

Facts

TRIAL COURT JUDGMENT 6. The learned trial Court on analysis of the materials and evidence on record came to a conclusion that the prosecution had proved its case under Section 47(a) of Bihar and Orissa Excise Act and accordingly he convicted him thereunder and the petitioner was sentenced to undergo R.I. for six months and fine of Rs.500/-, in default of payment of fine further R.I. for one month. APPELLATE COURT JUDGMENT 7. The learned Appellate Court stated that the evidence clearly established the seizure of a motor tube containing I.D. liquor from the exclusive and conscious possession of the CRLREV No. 250 of 2006 Page 3 of 11 petitioner. Hence adverse interfence cannot be drawn for non- production of the seized articles in the Court and after analyzing the reasoning given by the learned trial Court, the learned Appellate Court finds that there is no reason to interfere with the judgment passed by the trial Court and the trial Court has also awarded sentence very liberally and there is also nothing to interfere with the said finding. As such, there is no merit in the appeal and the judgment of conviction and sentence awarded by the learned trial Court are hereby confirmed. SUBMISSION 8.

Legal Reasoning

This Court in the case of S. Dasarathi Reddy vs. State : 1998 (II) OLR 315 : 2000 (19) OCR 688 (supra) has held as follows : ….“5. Here in this case, it is not disputed that no chemical analysis was done. What was done by the Excise Sub- Inspector was litmus paper test and hydrometer test. It is not explained as to why the seized liquor was not sent to the Chemical Examiner for examination. He, however, claims that he had training in distillery and he had 11 years experience at his credit in the Department. Besides this bald statement there is nothing to show that he had actually received training in CRLREV No. 250 of 2006 Page 6 of 11 a Branch of the Excise Department which is directly connected with the testing of liquor. Such a bald statement without any particulars of training or type of service does not make him an expert witness. It may be observed that in case of this nature, where substantive sentence of imprisonment is compulsory after conviction, a heavy duty is cast upon the prosecution to establish beyond any reasonable doubt that what was recovered from the accused was illicit liquor. Here in this case, the evidence is lacking with regard to it. This being the position, it seems that the order of conviction and sentence passed by the trial Court and affirmed by the superior Court cannot be sustained.”… In the case of Simanchal Choudhury vs. State of Orissa : 2005 (II)OLR 401 (supra), this Court has held as follows :- …“5. I have perused the judgments of both the Courts below and the evidence adduced by the prosecution witnesses. I find that even though the prosecution has alleged that the petitioner was selling I.D. liquor when the seizure was effected, strangely, no independent witnesses to the search and seizure have been produced by the prosecution. If the allegation of the prosecution regarding the act of selling I.D. liquor is accepted, the same would presuppose that some person or persons was/were either purchasing or purchasing and consuming the liquor sold by the accused. But, neither statement of any such person has been recorded nor any CRLREV No. 250 of 2006 Page 7 of 11 such person has been produced as prosecution witness. It is no doubt true that the evidence of official witness can be relied upon in a given case. As because P.W.1 was working as a constable in the Excise Department, the same is not a ground to disbelieve his testimony. It is revealed from the record that the liquid seized was never subjected to chemical test. Except the bare statement of P.W.2 that he tested the seized liquid by litmus paper which turned red and also measured the density of the said liquid by hydrometer test, that does not prove conclusively that the liquid seized was I.D. liquor. Blue litmus turning red on being introduced to a liquid only goes to show that the nature of liquid is acidic and no more. So far as the hydrometer test is concerned, it is a test to measure the density of liquid and possibility of any other liquid (solution) having the same density cannot be ruled out. The evidence of P.W.2 that by his experience of long twenty years of service in the department, he has acquired an expert knowledge in identifying liquor, is of no help to the prosecution. As already held by this Court in various decisions, an Excise Officer bearing some experience due to his long service cannot be termed as an expert in terms of Section 45 of the Evidence Act. Further, in the instant case, identification of the liquid seized by P.W.2 as I.D. liquor does not confirm to the test as required to be proved to bring a case under Section 47(a) of the Bihar and Orissa Excise Act, 1915. (See Suma Das v. CRLREV No. 250 of 2006 Page 8 of 11 follows:- State of Orissa, 1993 (II) OLR 392 : 1993 (6) OCR 612, Bisam Harijan v. State of Orissa, 1994 (I) OLR 516 : 77 (1994) CLT 944 and Biswanath Sahoo v. State, 2002 (I) OLR 316 : 93 (2002) CLT 327), I find, in the present case that the seized liquor was never produced before the trial Court which is another aspect, which goes against the case of the prosecution.”… In the case of G. Sahukar (supra), this Court has held as “2. The Counsel for the appellant, however, wanted to raise a contention that the entire proceeding is vitiated as the officer, who investigated into the offence, did not have the authority in question. This point has not been urged in the forums below and we find that under Section 77(2) of the Act, the State Government is empowered to issue notification authorising different categories of officers for conducting investigation in respect of different offences. Since the point in question had not been raised in forums below, we cannot entertain and decide as to whether a particular officer who has investigated into an offence, did have the authority to investigate or not. The learned Counsel for the appellant also raised a contention that the possession of the accused is not one of conscious possession. The question whether the intoxicant was recovered from the possession of the accused is a question of fact and when all the forums below have concurrently recorded a CRLREV No. 250 of 2006 Page 9 of 11 finding that the accused was in possession of the same, it would not be appropriate for this Court to interfere with the same. Another contention that had been raised by the learned Counsel for the appellant is that there had been no proper chemical test to identify the substance to be an I.D. liquor. This is factually incorrect, inasmuch as several tests had been held and that apart, even the Excise Authority by mere smell would be competent to decide whether the article is a liquor or not.” ANALYSIS AND CONCLUSION 11. P.W.1 the independent witness has not supported the prosecution case. The departmental training of P.W.2, the S.I. of has not been proved with supporting documents. On the basis of his experience and litmus paper test, he claims that the alleged liquor is id liquor. The alleged i.d. liquor has not been sent for chemical examination. 12. I am not inclined to accept the submission of the learned counsel for the petitioner that the evidence of official witnesses regarding seizure cannot be accepted as the independent witness has turned hostile. 13. But while accepting the evidence of the official witnesses regarding seizure, on the basis of the experience and physical tests conducted by P.W.2 and in the absence of a chemical examination CRLREV No. 250 of 2006 Page 10 of 11 of the seized substance, in my opinion, it would be unsafe to confirm the conviction of the petitioner under Section 47(a) of the Bihar and Orissa Excise Act. 14. In view of the above discussion, decisions and the facts of the case, I am inclined to set aside the conviction of the petitioner under Section 47 (a) of the Bihar and Orissa Excise Act giving him the benefit of doubt. 15. 16. The Criminal Revision is accordingly allowed. The judgment and order dated 07.03.2006 passed in Criminal Appeal No. 45 of 2002 by the learned Addl. Sessions Judge, Rayagada and judgment and order dated 08.08.2002 passed by the learned S.D.J.M., Rayagada in 2(a) C.C. No. 95 of 1997 (T.R. No. 1600 of 1997) are set aside. 17. As the petitioner is stated to be on bail, his bail bonds are discharged. 18. The trial Court records be returned forthwith to the learned trial court with a copy of this judgment. ……………………… (Savitri Ratho) Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 01-Jun-2025 22:16:42 Orissa High Court, Cuttack. The 30th May, 2025. S.K. Behera, Senior Stenographer. Judge CRLREV No. 250 of 2006 Page 11 of 11

Arguments

Mr. Arun Kumar Acharya, learned counsel for the petitioner submitted that (i) P.W.1 the sole independent witness who has been examined by the prosecution, has turned hostile for which it would be unsafe to convict the petitioner basing on the evidence of the official witnesses only; (ii) as per evidence of the seizure witnesses of P.W.3 and P.W.4, the tube containing the I.D. liquor was lying on the road for which it cannot be stated that the liquor has been recovered from the exclusive possession of the petitioner; CRLREV No. 250 of 2006 Page 4 of 11 (iii) blue litmus paper test cannot be the sole test to identify the I.D. liquor in absence of other chemical test; (iv) there is no material on record that the official witnesses P.Ws. 2 and 3 had any departmental experience or undergone any training to make them qualified to identify I.D. liquor only by smell; (v) the materials objects not having been produced in the learned trial Court serious doubt is cast on the prosecution case; and (vi) the occurrence has been taken place on 09.07.1997 and 27 years having elapsed in the meanwhile, even if this Court confirms the conviction of the petitioner under Section 47(a) of the Bihar and Orissa Excise Act, the custodial sentence should be converted to fine. He relied on the decision of the Supreme Court in the case of A.K. Sarkar & Co. And Another vs. State of West Bengal & Others reported in 2024 SCC Online SC 248 in support of such submission. 9. Mr. M.R. Mishra, learned Addl. Standing Counsel for the State submits that the revision is liable to be dismissed and the conviction of the petitioner under Section 47(a) of the Bihar and CRLREV No. 250 of 2006 Page 5 of 11 Orissa Excise Act is liable to be confirmed as there is no infirmity or illegality in the judgments of the learned Court below. He relied on the decision of the Supreme Court in the case of G. Sahukar vs. State of Orissa reported in 2000 (19) OCR (SC) 688 submitted that an experienced officer merely by smell and sight can identify I.D. liquor and chemical examination is not necessary for convicting the accused. He further submitted that the evidence of only official witnesses is sufficient to convict a person, if the evidence is cogent and trustworthy and they have no personal animosity against an accused. JUDICIAL PRONOUNCEMENTS 10.

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