Criminal Appeal No. 38/62 of 2005 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 25 of 2006 An application under Section 401 Cr.P.C. read with Section 397 of Cr.P.C. arising out of the order dated 27.08.2005 passed by the learned 2nd Adhoc Addl. Sessions Judge, Sundargarh in Criminal Appeal No. 38/62 of 2005 and the judgment and order dated 21.06.2005 of the learned Judicial Magistrate First Class, Sundargarh in 2(a) C.C. No. 364 of 2001 (Trial No. 292 of 2005). -------------- Bandhana Khadia ..…. Petitioner -versus- State of Orissa …… Opp. Party --------------------------------------------------------------------------- : Mr. Biswajit Nayak, Advocate For Petitioner on behalf of Mr. A.P. Bose, 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 read with Section 397 of the Code of Criminal Procedure has been filed by the petitioner challenging the judgment and order dated 27.08.2005 passed in Criminal Appeal No. 38/62 of 2005 by the learned 2nd Adhoc Additional Sessions Judge, Sundargarh confirming the judgment and order passed in 2(a) C.C. No. 364 of 2001 (Trial No. 292 of CRLREV No. 25 of 2006 Page 1 of 12
Legal Reasoning
2005) by the Judicial Magistrate First Class, Sundargarh on 21.06.2005 convicting the petitioner for commission of the offence under Section 47(f) of the Bihar and Orissa Excise Act and sentencing him to undergo S.I. for two years and to pay a fine of Rs.5000/-, in default to undergo S.I. for three months. The period of U.T.P. if any had been directed be set off against the substantive sentence. PROSECUTION CASE 2. The prosecution allegation in brief is that on 27.04.2001 the S.I. of Excise, Sadar, Sundargarh in-charge of Ujalpur searched the house of the petitioner and recovered two earthen pots each containing 30 kgs. of fermented mohua (in short “FM”) wash and one earthen steel head. He tested the wash and seized the same along with the apparatus and arrived at a conclusion that those were kept for manufacturing I.D. liquor and on completion of the enquiry, the said S.I. submitted prosecution report against the petitioner for the offence under Section 47(f) of the Bihar and Orissa Excise Act. DEFENCE PLEA 3. The plea of the defence was one of complete denial and false implication. CRLREV No. 25 of 2006 Page 2 of 12 WITNESSES AND EXHIBITS 4. In order to prove its case, the prosecution examined four witnesses. P.W.1 Rohit Kumar Mahanandia is the A.S.I of Excise, P.W.2 Somnath Nandia is the excise constable, P.W.3 Gurj Khadia is the independent witness to the seizure and P.W.4 Rahas Bihari Patra is the S.I. of Excise. No witness was examined on behalf of the defence. The prosecution exhibited only one document, the seizure list. The defence did not rely on any document. P.W.1 Rohit Kumar Mahanandia was the ASI of Excise. He has stated that on 27.04.2001 he along with S.I. of Excise (P.W.4) went to Nuadihi on duty and the S.I. searched the house of the appellant and recovered two earthen pots each containing 30 kg. of Mahua wash and one steel head smelling of liquor from the appellant. He tested it by blue litmus paper which turned red, measured the wash and seized the same. He collected sample of the Mahua wash in a bottle and destroyed the rest of the Mahua wash with the steel head, at the spot. P.W.2 Somnath Nandia was the Excise Constable. He has stated that he was a member of the raiding party. He has supported the version of P.W.4 and his evidence is almost identical to that of P.W.1. CRLREV No. 25 of 2006 Page 3 of 12 P.W.3 Gurj Khadia is the independent witness to the seizure and did not support the prosecution case. P.W.4 Rahas Bihari Patra was the Sub Inspector of Excise. He has stated that on 27.04.2001, at 9.00 a.m., he along with P.W.1 and P.W.2 searched the house of the petitioner and recovered two earthen pots each containing 30 kgs. of F.M. wash and one earthen steel head. He tested the recovered wash by blue litmus paper which turned red. He seized the articles and kept a sample of the Mahua wash and destroyed the rest at the spot. From his 18 years of service experience, distillery training he knew it as F.M. wash and the apparatus which were kept for manufacture of I.D. liquor. As the petitioner failed to produce any authority for possession of the articles, he seized the said articles from the petitioner vide seizure list Ext.1. TRIAL COURT JUDGMENT 5. The learned Trial Court after considering a decision reported in OCR (2000) Vol-18 438, wherein it is held that “evidence of litmus paper test and hydrometers test conducted by a witness having departmental experience and distillery training cannot be discredited even in absence of chemical test of the seized substance”, held that P.W.4 having experience of 18 years coupled CRLREV No. 25 of 2006 Page 4 of 12 with distillery training from which it can easily be inferred that he is an expert witness on the subject. It also found that his evidence is not damaged by the defence during cross-examination and
Legal Reasoning
rejected the contention of defence and held that the petitioner was in possession of the aforesaid FM wash and other apparatus which were meant for manufacture of I.D. liquor and convicted him commission of offence under Section 47(f) of the Bihar and Orissa Excise Act. APPELLATE COURT JUDGMENT 6. After considering the evidence of the witnesses, learned Appellate Court found that the evidence of the official witnesses regarding search and seizure and testing was consistent and there was no contradiction and hence it could be safely relied upon without any independent corroboration. As the house consisted of one room and only the petitioner was present, failure of the prosecution to ascertain the actual owner does not affect the prosecution case. As no suggestion was given to P.W.4 that he did not have service experience or distillery training, there was no reason to disbelieve his version merely because he did not produce supporting documents. It confirmed the conviction of the petitioner and dismissed Criminal Appeal No. 38/62 of 2005. Taking into CRLREV No. 25 of 2006 Page 5 of 12 account the nature and the gravity of the offence as well as its impact on the society at large, the learned Appellate Court refused to extend the benefit of the provisions of the Probation of Offenders’ Act to the petitioner. It also found that the sentence imposed by the learned Magistrate appeared to be proportionate to the nature and the gravity of the offence and did not interfere with it. SUBMISSIONS 7. Mr. Biswajit Nayak, learned counsel appearing on behalf the petitioner submitted that both the Courts below have failed to appreciate and analyze the evidence of P.W.3 and P.W.1, and notice the clear contradiction between their statements and the statements of P.W.2 and P.W.4, P.W. 3 has not supported the version of the P.Ws. 1, 2 and 4. P.Ws. 1, 2 and 4 have not proved the ownership of the house or the occupants of the house where the seizure had allegedly been made. Law is well settled that the onus is on the prosecution to prove the conscious and exclusive possession of the accused over the seized articles. But in the instant case the prosecution has failed to discharge this onus. He has further submitted that the Courts below have come to an erroneous finding and wrong conclusion that the recovery of the Mahua wash and the apparatus, were made from the conscious physical CRLREV No. 25 of 2006 Page 6 of 12 possession of the petitioner. As the onus was on the prosecution to prove exclusive possession of the seized material of the petitioner, the Courts below should not have disbelieved the plea of the petitioner on the ground that P.Ws. 1, 2 and 4 was not cross- examined. Moreover, the charge was defective and prejudiced the defence in the trial. He has relied on the following decisions in support of his submission:- (i) In the case of Aparti Sahu & Another vs. State of Orissa: 2002 (II) OLR 148. (ii) In the case of Raghunath Sahoo (in Criminal Revision No.108 of 1995) and Satrughna Sahoo (in Criminal Revision No.61 of 1995) vs. State of Orissa : 2002 (II) OLR 490. 8. Mr. M.R. Mishra, learned Addl. Standing Counsel for the State vehemently opposed the contentions of the learned counsel for the petitioner and submitted that the learned trial Court has rightly relied on the evidence of the official witnesses P.W.1 and P.W.4. He has submitted that a conviction can be based on the evidence of official witnesses, where they have no reason to make false allegations against the accused. He has also submitted that even in the absence of a chemical examination, on the basis of CRLREV No. 25 of 2006 Page 7 of 12 physical tests conducted by an experienced officer who has undergone distillery training, a conviction can be maintained. In support of his submissions, he relied on the following decisions:- (i) G. Sahukar vs. State of Orissa reported in (2000) 19 OCR (SC) 688, (ii) Sathyan vs. State of Kerala in Criminal Appeal No. 2363 of 2023 arising out of SLP (Criminal) No. 9710 of 2023 : Diary No. 16317 of 2022 delivered on 11th August, 2023 and (iii) Tahir vs. State (Delhi) reported in (1996) 3 Supreme Court Cases 338. JUDICIAL PRONOUNCEMENT 9. In the case of Aparti Sahu (supra), the prosecution case was based on evidence of official witnesses. This Court held that the factum of recovery is not corroborated by independent witnesses. Recovery of I.D. liquor from conscious possession of petitioners are doubtful, for which and the order of conviction and sentence set aside. In the case of Raghunath Sahoo and Satrughna Sahoo (supra), the prosecution has lead unequivocal evidence that the officer who has seized the liquid has got special training and post experience so that his opinion can be regarded as the opinion of an CRLREV No. 25 of 2006 Page 8 of 12 expert. Expert evidence of excise officer who intends to prove the seized articles to be I.D. liquor must have past experience as well as special training so as to bring his evidence within the fold of ‘expert evidence’. 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. In the case of Sathyan (supra), the Kerala High Court refused to disbelieve the testimony of the official witnesses as they had no enmity with the accused and confirmed the conviction of the petitioner under Section 8 (1) and 8 (2) of the Abkari Act, but reduced his sentence. In the case of Tahir (supra), the appellant had been convicted for commission of offence under Section 5 of Terrorists CRLREV No. 25 of 2006 Page 9 of 12 and Disruptive Activities (Prevention) Act, 1987. The Supreme Court relied on the evidence of the official witnesses and dismissed the appeal. ANALYSIS AND CONCLUSION 10. I have gone through the two impugned judgments, the evidence of the P.Ws. and the provision of Section 47(f) of the Bihar and Orissa Excise Act and the decisions relied upon by the counsel. 11. As the defence has not been able to show that the official witnesses - P.W.1, P.W.2 and P.W.4 had any enmity with the petitioner or any reason to falsely implicate him, I am not inclined to accept the contention of the learned counsel for the petitioner that their evidence regarding search and seizure is to be disbelieved. I am also not prepared to disbelieve that P.W.4 did not conduct blue litmus paper test or was an experienced officer and had undergone distillery training. 12. But it is the admitted case of the prosecution that chemical examination of the alleged fermented mahua wash seized by P.W.4 has not been conducted. 13. This is surprising as all the three official witnesses have stated that sample of the mahua was kept by P.W.4 in a bottle before CRLREV No. 25 of 2006 Page 10 of 12 he destroyed the mahua wash at the spot. No explanation has been given as to why the sample of the mahua wash which had been kept in a bottle by P.W.4, had not been sent for chemical examination. 14. It is possible that an experienced Excise Officer with the right kind of training can identify spurious liquor, I.D. liquor or mahua wash by sight and smell. The exact nature of training undergone by P.W.4 has not been proved. 15. Blue litmus paper test is not a conclusive tests to prove if a particular substance if I.D liquor or even mahua wash. This is because litmus paper test is for measuring the pH factor of a substance – whether it is acidic or alkaline ? If the blue litmus paper turns red , it indicates that the substance is acidic . It is one of tests but cannot be a conclusive test as the pH factor of a substance will only be suggestive of the identity of the substance but cannot prove its identity beyond reasonable doubt. Similarly smell or appearance of a substance can be suggestive but cannot be conclusive. 16. In my opinion, a chemical examination of the substance would have proved the case of the prosecution beyond reasonable doubt. Therefore in the absence of a chemical test, I am of the considered view that the petitioner deserves to be given the benefit of doubt. CRLREV No. 25 of 2006 Page 11 of 12 17. 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 (fa) of the Bihar and Orissa Excise Act, giving him the benefit of doubt. 18. The Criminal revision is allowed. 19. The judgment and order dated 27.08.2005 passed in Criminal Appeal No. 38/62 of 2005 by the learned 2nd Adhoc Additional Sessions Judge, Sundargarh and the judgment and order dated 21.06.2005 passed by the learned J.M.F.C., Sundargarh in 2(a) C.C. No. 364 of 2001 (Trial No. 292 of 2005) are set aside. 20. As the petitioner is stated to be on bail, his bail bonds are discharged. 21. The trial Court records be returned forthwith to the learned trial court with a copy of this judgment. ……………………… (Savitri Ratho, J) Orissa High Court, Cuttack. The 30th May, 2025. S.K. Behera, Senior Stenographer Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jun-2025 19:24:38 CRLREV No. 25 of 2006 Page 12 of 12