The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.136 of 2012 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Md. Toufik ……. Petitioner -versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. T.K. Mishra, Advocate For the Opp. Party : Mr. S.K. Mishra, Addl. Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 11.07.2024 : Date of Judgment: 30.07.2024 S.S. Mishra, J. The present Criminal Revision Petition filed by the petitioner under Section 401 read with Section 397 of Cr.P.C. is directed against the judgment and order dated 10.02.2012 passed by the learned Additional Sessions Judge, Titilagarh in Criminal Appeal No.06 of 2011, whereby the judgment of conviction and order of sentence dated 08.08.2011 passed by the learned S.D.J.M., Titilagarh in G.R. Case No.289 of 2002 was confirmed. 2. The case of the prosecution in brief is that on 13.08.2002 at about 10.00 P.M., the S.I. of Police Sri Sarat Kumar Sahu of Titilagarh Police Station was performing excise raid duty in Titilagarh Town along with other staff. After getting reliable information, they raided the hotel of the accused, namely, ASIYANA Hotel. On search, the S.I. of Police recovered eight bottles of Kalyani Premium Black Label Beer each containing 650 ml. from the hotel of the accused. At that time, the accused was present in his hotel, but he could not furnish any authority for possessing such quantity of foreign liquor. On the basis of such allegation, the police registered an F.I.R and after completion of investigation, submitted the charge sheet against the petitioner under Section 47(a) of the Bihar & Orissa Excise Act. So, he was prosecuted and consequently, put to trial. 3. To bring home the charges, the prosecution examined altogether three witnesses and exhibited two documents. The plea of defence was Page 2 of 9 that of complete denial. In proof of their plea, no evidence was adduced from the side of the defence. 4. The learned Trial Court analyzed the entire evidence on record and found the petitioner guilty of the offence under Section 47(a) of the Bihar & Orissa Excise Act and sentenced him to undergo Simple Imprisonment for a period of two years and to pay a fine of Rs.5,000/-, in default, to undergo further Simple Imprisonment for two months. 5. The judgment of conviction and sentence dated 08.08.2011 passed by the learned S.D.J.M., Titilagarh in G.R. Case No.289 of 2002 (T.R. No.1558 of 2002) was called in question by filing Criminal Appeal No.06 of 2011 before the Court of learned Additional Sessions Judge, Titilagarh by the petitioner. 6. Since the appeal failed, the petitioner challenged the judgment/order of conviction and sentence of both the Courts below in the present Criminal Revision Petition. 7. Heard Mr. T.K. Mishra, learned counsel for the petitioner and Mr. S.K. Mishra, learned Additional Standing Counsel. Page 3 of 9 8. Perused the impugned judgment of conviction and order of sentence passed against the petitioner and meticulously evaluated the evidence on record. 9. The petitioner was subjected to trial for alleged offence charged under Section 47(a) of the Bihar & Orissa Excise Act. The prosecution examined only three witnesses. Out of them, two witnesses were official witnesses and one of them was an independent witness. The independent witness (P.W.1), who was examined to prove the seizure, had not supported the case of the prosecution,. The learned trial court, on the basis of the evidence of the official witnesses, namely, P.Ws.2 and 3, convicted the petitioner under Section 47(a) of the Bihar & Orissa Excise Act and sentenced him to undergo S.I. for a period of two years and to pay a fine of Rs.5,000/-, in default, to undergo further S.I. for a period of two months. 10. The petitioner filed an appeal before the learned Additional Sessions Judge, Titilagarh vide Criminal Appeal No.6 of 2011. The learned Appellate Court vide its judgment dated 10.02.2012 confirmed Page 4 of 9 the judgment of conviction and order of sentence recorded by the learned S.D.J.M., Titilagarh. 11. Aggrieved by the aforementioned judgment of conviction and order of sentence recorded against the petitioner, the petitioner has approached this Court by filing this Criminal Revision Petition. 12. Apparently in this case, P.W.1, who was the independent witness, did not support the prosecution case. No chemical examination had been conducted to identify the nature of liquor seized. No other evidence was made available by the prosecution to establish its case. However, the Courts below have convicted the petitioner for the aforesaid offence. 13. The learned Appellate Court, while dealing with all the objections raised by the defence, has returned the following finding:- “7. The learned advocate for the appellant during course of argument the lower court has not taken into consideration of the fact that the seized beer bottles were not sent for chemical examination and were not produced before the court during course of trial. The prosecution has not proved the ownership of the hotel where from P.W.3 seized the beer bottles. In support of his stand, the learned Advocate for the appellant relied upon a decision reported in 2002 (Supp.)- O.L.R.(NOC)-807 (Bhaiga Sahu vrs. State). However, the detail facts and circumstances of the aforesaid case, relied on by the learned Advocate for the appellant is not known as short notes of the case has been only reported in the aforesaid decision. The learned Advocate fro the appellate Page 5 of 9 also relied upon decision reported in 2010(1) G.E.-938 (G. Madhava Reddy vrs. State of Odisha). In the aforesaid case, the ownership of the hotel shop where from the liquor was allegedly seized was not proved by the prosecution. None of the prosecution witnesses has stated that the accused was present in the shop when it was searched. There was no evidence at all as to whether the shop was closed or open or who was present in the shop or who was transacting the business therein at the relevant time. Prosecution has failed to prove that the seizure was made from exclusive and conscious possession of the petitioner. Therefore, in that case, it was held by our Hon’ble High Court that in absence of proof of conscious and exclusive possession of the contraband articles by the accused, there can be conviction of the accused. In the present case under consideration, no doubt, the so-called independent witness to the seizure, P.W.1 did not support the prosecution case by stating that nothing was seized in his presence. But P.W.2 has given out in his evidence regarding search and recovery of eight Black Label beer bottles under proper seal from the possession of the secured Md. Taufik and that on demand, the accused could not produce any authority in its support. The evidence of P.W.3 reveals that the owner of the hotel Md. Taufik was present at the time of search and that bottles of Kalyani Black label beer bottles each containing 650 M.Ls. was recovered from the hotel of the accused and on being asked, the accused could not furnish any authority for possession the beer bottles and therefore, he seized the beer bottles and prepared the seizure list. The said evidence of P.W.3 has not been challenged during cross-examination. No suggestion has been also given to P.W.3 that the seized bottles did not contain beer or that no such beer bottles were recovered and seized from the alleged hotel of the accused. In view of the unsoiled evidence of P.W.3, it can be safely held that the prosecution has proved the fact of recovery and seizure of the beer bottles from the hotel of the accused and that the accused though present in the hotel, could not produce any authority for possessing the beer bottles. Therefore, the facts and circumstances of the present case is distinguishable from the facts and circumstances of the present case reported in 2010 (1) O.L.R.-938. Hence, in the instant case, I do not find Page 6 of 9 any wrong or error committed by the learned S.D.J.M., while appreciating the evidence on record and holding the accused guilty U/s.47(a) of B & Excise Act. Therefore, there is no reason to interfere with the order of conviction and sentence passed by the lower court.” 14. No doubt, there are certain discrepancies in the testimony of P.Ws.2 & 3 and the story narrated in the F.I.R. However, insofar as recovery of the liquor from the hotel premises is concerned, the prosecution could successfully prove the same, even though PW1 turned hostile. The learned Appellate Court has appreciated the evidence in the right prospective and dealt with the contention raised by the defence by returning the abovementioned findings. I find no reason to disagree with the findings recorded by the learned Appellate Court. 15. Coming to the quantum of sentence, I am of the considered view that the prayer of the petitioner for grant of the benefit of P.O. Act should have been considered in the facts of the present case. However, the learned trial court out rightly rejected the prayer of the petitioner for his release on the P.O. Act inter alia stating as under: “9. Consumption of liquor has led the youth of this Country to go astray. It is a bane of the society. So, considering the nature of the offence and its impact on the society, I am not inclined to release the accused under the Page 7 of 9 Probation of Offender’s Act. Rather, I would prefer to hear him on the question of sentence.” 16. This is a case pertaining to the year 2002. At that time of the incident, the petitioner was aged about 49 years and by now, he must be more than 71 years old. Therefore, sending the petitioner to undergo sentence of incarceration at this belated stage would serve no purpose,rather that would be harsh. Therefore, I am of the considered view that the petitioner is entitled to the benefit of Probation of Offenders Act as his case is directly covered by the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp-II) OLR 469. 17. Accordingly, the present Criminal Revision in so far as the conviction recorded against the petitioner is concerned, is turned down. But instead of sentencing the petitioner to suffer imprisonment, this Court directs the petitioner to be released under Section 4 of the Probation of Offenders Act for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such Page 8 of 9 period and in the meantime, the petitioner shall keep peace and good behavior and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of one year. 18. The Criminal Revision is accordingly disposed of on the aforementioned terms. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th July, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Aug-2024 11:30:37 Page 9 of 9