The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 290 of 2006 An application under Section 401 of the Code of Criminal Procedure, 1973. Hemanta Bhoi -------------- ..…. -versus- Petitioner State of Orissa …… Opp. Party ----------------------------------------------------------------------------- For Petitioner : Mr. Rajendra Kumar Pradhan, Advocate For Opp. Party ----------------------------------------------------------------------------- : Ms. S. Mishra, A.S.C. CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 30.05.2025 Savitri Ratho, J. This application under Section 401 of the Cr.P.C. has been filed challenging the judgment dated 22.04.2006 passed by the learned Additional Sessions Judge, Angul in Criminal Appeal No. 04
Facts
of 2005 confirming the judgment of the learned trial court, confirming the conviction and sentence of the petitioner vide judgment dated 25.01.2005 passed by the learned J.M.F.C., Angul in U.I. Case No. 53 of 1996/Trial Case No. 409 of 2003 convicting the petitioner under CRLREV No. 290 of 2006 Page 1 of 12 Section 47(a) of the Bihar and Orissa Excise Act and sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- in default to undergo R.I. for three months more. PROSECUTION CASE 2. The prosecution case in brief is that, on 20.10.1995 at 7.30 P.M., P.W.1- Birabara Behera, the then ASI of police attached to Nalco Police Station while performing patrolling duty with P.W.3- Dhaneswar Behera, constable at the road of Basala Sahi crossing, found the petitioner carrying a big plastic jerrican containing 20 litres of I.D. liquor. As he failed to show any authority for possessing the liquor, it was seized by P.W.1 in presence of the witnesses and the sample liquor was sent for chemical examination. The report revealed that it contained 36% ethyl alcohol. On completion of enquiry, ASI filed prosecution report against the accused. DEFENCE PLEA 3. The plea of the defence was one of complete denial and false implication. WITNESSES 4. The prosecution examined three witnesses, P.W.1 Birabara Behera is the ASI of police. P.W.2 Kulamani Bilasa is an independent CRLREV No. 290 of 2006 Page 2 of 12 witness, who did not support the prosecution case. P.W.3 Dhaneswar Behera is the police constable, who accompanied P.W.1 during patrolling duty and was witness to the seizure. 5. P.W.1 Birabara Behera has stated that on 20.10.1995 at about 7.30 P.M., while he along with P.W.3 were performing patrolling duty at Basala Sahi crossing, they found the accused transporting 20 liters of country made liquor in a big plastic jerrican. As he failed to produce any document in support of such transportation or possession, he seized the same vide Ext.1 from the possession of the accused. He took a sample of the liquor in a small bottle and sealed it and sent it to the District Forensic Science Laboratory, Dhenkanal for chemical examination. The opinion report of Ext.3 revealed that percentage of ethyl alcohol was 36%. After completion of investigation, he submitted prosecution report. P.W.1 has admitted in his cross-examination that the extract of his tour diary of his return journey was submitted in the Court with P.R. P.W.2, Kulamani Bilasa is the independent witness. He did not support the fact of seizure, but admitted to have signed on the seizure list. P.W.3 Dhaneswar Behera is the constable who had accompanied P.W 1 during patrol duty and has signed on the seizure CRLREV No. 290 of 2006 Page 3 of 12 list. He has stated about the recovery and seizure of 20 litres of country made liquor from the petitioner. 6. The prosecution exhibited three documents. Ext.1 is the seizure list, Ext.2 is the requisition and Ext. 3 is the Opinion report. TRIAL COURT JUDGMENT 7. The learned trial court did not find any reason to disbelieve the prosecution case holding that evidence of the Police ensure stay does not always require corroboration by an independent witness. It also accepted the opinion report Ext.3 in absence of any rebuttal evidence. Holding that the prosecution has proved its case beyond all reasonable doubt, it found the petitioner guilty for committing an offence under Section 47(a) of Bihar and Orissa Excise Act and convicted him thereunder. It did consider it proper to give him any benefit under the Probation of the Offenders Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- (rupees one thousand) in default to undergo R.I. for three months more. APPELLATE COURT JUDGMENT 8. The learned Appellate Court held that P.W.2 had admitted his signature on the seizure list in which the details of seizure were mentioned and being a literate man, he must have been aware of its CRLREV No. 290 of 2006 Page 4 of 12 contents. It also found that the opinion report Ext.3 had been marked without objection and that was no reason to disbelieve the evidence of P.W-1 who seized the ID liquor. So the learned trial Court after analyzing the evidence adduced by the prosecution and perusing the judgment of the learned trial Court confirmed the conviction of the accused under Section 47(a) of Bihar and Orissa Excise Act. It also held that the learned lower Court has taken a very lenient view while awarding sentence of rigorous imprisonment for six months and to pay fine of Rs.1,000/- in default to undergo rigorous imprisonment for three months more under Section 47(a) of Bihar and Orissa Excise Act and dismissed the appeal. SUBMISSIONS 9.
Legal Reasoning
In the case of Bhajan Sahu (supra), this Court has held that the only independent witness is the seizure witness has not supported the CRLREV No. 290 of 2006 Page 7 of 12 prosecution case and in view of non-production of the seized liquor in the court or jerrycan, acquitted the accused. In the case of Mohan Behera (supra), this Court has held that seizure has been made on the road but no independent witness was examined who had seen the occurrence and acquitted the accused. In the case of Raman Thappa (supra), this Court has modified the sentence to fine only keeping in view the young age of the petitioner absence of past criminal record towards his credit. In the case of, Jadumani Seth vs. State of Orissa : 1994 (II) OLR 599 , this Court rejected the contentions that the investigation was vitiated as the independent witness did not support the prosecution case and the test was not done in presence holding that the official witnesses did not have any hostility against the accused to falsely implicate him and those points had been dealt with by the learned Court below referring to earlier decisions of this Court . In the case of Jhadia Naik vs State of Orissa : (2010) II OCR 572., this Court held that even in absence of independent corroboration , the evidence of official witnesses can be accepted to convict an accused .But in the said case neither the seized CRLREV No. 290 of 2006 Page 8 of 12 jerrican containing liquor nor blue litmus used and hydrometer chart prepared by P.W 1 were produced in the Court. Holding that the prosecution has not come up with any explanation or justification for non-production of the seized article and as the blue litmus paper and hydrometer chart had been withheld from Court without any explanation, acquitted the accused .- In the case of G. Sahukar (supra), the Supreme Court did not entertain the submission of the petitioner that the officer who investigated the case was not authorized to do so as it had not been raised in any of the forums below. It rejected the contention that the I.D. liquor had not been seized from the conscious possession of the accused as it was a finding of fact which had been concurrently recorded by all the forums. The contention that there was no chemical test was also rejected holding that several tests had been conducted and the Excise authority by mere smell would be competent to decide whether the article is liquor or not. ANALYSIS 12. I have perused the impugned judgments and the depositions of the witnesses. CRLREV No. 290 of 2006 Page 9 of 12 13. P.W.1 has given a detailed description of the manner in which the I.D. liquor was seized and sample was sent for chemical examination. The report Ext.3 has been exhibited proved without objection. Merely because the P.W.2 the independent witness stated that seizure was not done in his presence and the contents of the seizure list not explained to him does not render the seizure illegal. That apart, P.W. 1 had no reason to falsely implicate the petitioner. Nothing has been shown by the defence to indicate that with ulterior motive this accused has been falsely implicated. In fact, so suggestion to that effect has been given to him. It is the settled principle of law, that a conviction can be based on the evidence of official witnesses, in the absence of corroboration by an independent witness, if their evidence is cogent and inspires confidence. Therefore, I do not find any plausible reason to disbelieve the evidence of the police officers, as they do not suffers from any material discrepancy. Ext. 3, the opinion report that the seized substance contained 36% ethyl alcohol further strengthens the prosecution case. As far as the non-production of the seized material in the Court is concerned, there is no mandatory requirement in the Bihar and Orissa Excise Act for production of the seized articles before the trial court so their non-production, does not CRLREV No. 290 of 2006 Page 10 of 12 falsify the prosecution case if the other evidence is cogent and unimpeachable. CONCLUSION 14. In view of the above discussion and decisions, I am of the considered opinion that the prosecution has proved that the i.d liquor was seized from the exclusive and conscious possession of the petitioner and hence the impugned judgments do not call for any interference. The conviction of the petitioner for commission of offence under Section 47 (a) of the Bihar and Orissa Excise Act is confirmed. 15. As far as sentence is concerned, the occurrence is of the year, 1995. Almost thirty years have elapsed in the meanwhile. The petitioner was on bail throughout the trial, and during pendency of the appeal and this revision. It has not been brought to the notice of the Court that he has similar antecedents. Hence, I am of the considered view that it would not be proper to send him behind bars now to serve the custodial sentence of a rigorous imprisonment for six months. The custodial sentence is therefore modified to fine. The fine is enhanced from Rs.1,000/- to Rs.2,500/-, in default to undergo rigorous imprisonment for six months. CRLREV No. 290 of 2006 Page 11 of 12 16. The Criminal Revision is dismissed with modification in sentence. 17. The trial Court record be returned to the learned trial along with a copy of this judgment after retaining a scanned copy. ……………………… (Savitri Ratho) Judge Orissa High Court, Cuttack. The 30th May, 2025, Subhalaxmi Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2025 19:18:55 CRLREV No. 290 of 2006 Page 12 of 12
Arguments
Mr. R. K. Pradhan, learned counsel appearing on behalf of the petitioner has submitted that:- (i) Neither the learned trial court nor the appellate court have properly assessed or discussed evidence of the statements of PW-1 & PW-3 who were the official witnesses. PW-3 has submitted that he was not present at the time of seizure but joined later on put his signature on the seizure list. So the sole evidence of PW-1 cannot be relied upon. CRLREV No. 290 of 2006 Page 5 of 12 (ii) No independent witness has been examined even though the place of occurrence which is near to NALCO Town ship road is a busy road. PW-2 has stated that he was not present at the time of search and seizure, but he has put his signature over the seizure list and he has no knowledge regarding the seizure of ID liquor and the raiding party member could not explain him regarding the same. So the seizure becomes doubtful. (iii) The prosecution has failed to produce the seized articles along with jerrican and other materials in Court. Their non-production leads to adverse inference against the prosecution. In support of his submissions, the learned counsel for the petitioner has relied on the following decisions: i) Bhajan Sahu vs. State of Orissa: (1989) 2 OCR-215 ii) Mohan Behera versus State of Orissa : (2003) 24-OCR 185 iii) Raman Thappa Versus State of Orissa: (1999) Crl.L.J. 1738 (Orissa) 10. Ms. S. Mishra, learned Additional Standing counsel has vehemently opposed the submission of the learned counsel for the petitioner stating that the prosecution has duly complied with the CRLREV No. 290 of 2006 Page 6 of 12 procedural safeguards under the Bihar and Orissa Excise Act and proved its case though the testimonies of PW-1 and PW-3. They are official witnesses, but their evidence is credible and consistent with the seizure memo and investigation records. She has further submitted that the absence of an independent witness does not, in itself, vitiate the prosecution case, especially when the official witnesses have no reason to falsely implicate the accused. The chemical examination report confirms that the substance seized is I.D liquor as it contained 36% ethyl alcohol. She has also submitted that it is not mandatory to produce the seized materials in Court in cases under the Bihar and Orissa Act. She has also submitted that in view of the nature of materials seized in such cases, it is not practical to produce them in Court and no production of the seized materials in Court will not falsify the prosecution case. She has relied on the decision of the Supreme Court in the case of G. Sahukar vs State of Orissa : (2000) 19 OCR (SC) 688, in support of her submissions. JUDICIAL PRONOUNCEMENTS 11.