The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.267 of 2014 (In the matter of an application under Sections 401 & 397 of the Criminal Procedure Code, 1973) Gobind Arukha ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Ms. Anima Dei (Amicus Curiae) For the Opp. Party : Mr. B.K. Ragada, Additional Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 27.06.2024 : Date of Judgment: 16 .07.2024 S.S. Mishra, J. The present Criminal Revision filed under Sections 401 and 397 of Cr.P.C. is directed against the judgment and order dated 06.12.2001 passed by the learned Adhoc Addl. District & Sessions Judge, Fast Track Court No.III, Cuttack in Criminal Appeal No.50 of 1995, whereby the judgment of conviction and order of sentence dated 25.03.1995 passed by the learned J.M.F.C.(R), Cuttack in 2(a) C.C. Case No.102 of 1993 has been confirmed. 2. The prosecution case in brief is that on 16.07.1993 at about 6.30 P.M. the petitioner was found going in a Luna from Manguli towards Nirgundi. He was detained by the Constable of Excise on suspicion in presence of witnesses. He searched the Luna and found one Tarpolin bag containing one cartoon. On further search, the cartoon was found to have contained 32 bottles of XXX Rum and five bottles of Beer. On demand the petitioner failed to produce any authority or licence for such possession. Therefore, it was seized by the Constable of Excise along with the Luna. Thereafter the Constable Dibakar Naik produced the seizure list, seized articles and the accused-petitioner before the S.I. of Excise. The S.I. of Excise examined the seal and label of each bottle and he came to a conclusion that the seized articles are I.M.F.L. Then he sealed the cartoon. The Luna was released on zima of one Rabindra Rout who is the owner of the same. Page 2 of 8 After observing due formalities, later on, the S.I. of Excise submitted P.R. under Section.47 (a) of the Bihar and Orissa Excise Act against the petitioner. 3. The Petitioner stood charged for alleged offence punishable under Section 47(a) of the Bihar & Orissa Excise Act. 4. The prosecution in order to prove its case had examined as many as three witnesses in support of its case, whereas the defence examined none. P.W.1 was the Constable of Excise who seized 32 bottles of Kissan Rum and five bottles of Beer from the possession of the petitioner under seizure list Ext.1. P.W.2 was independent seizure witness whereas P.W.3 was the S.I. of Excise. It is admitted fact on record that the seized articles were not sent for chemical examination. P.W.2 in his testimony had also denied the knowledge of seizure. Therefore, seizure is not adequately proved on record. The trial court found the petitioner guilty for alleged offence under Section 47(a) of the Bihar and Orissa Excise Act only relying upon the testimonies of the official witnesses namely P.Ws.1 and 3. While dealing with the factum Page 3 of 8 of non-production of the chemical examination report, the Trial court recorded as under: “7. The next submission made on behalf of the accused is that the seized articles were not sent for chemical examination and the chemical examination is the surest test. He also submitted that from the lable, the SI of excise could know that it was liquor. In this regard, he relied on a decision reported in 33-1967 C.L.T. at page 1192 (Udayanath Tripathy-Vrs-State). In the aforesaid decision, it is held that the chemical examination is a surest test. But in that case the accused has taken a plea that he imported bottles from Andhra Pradesh as medicines. In such a situation of course, the chemical examination is necessary. So far as this case is concerned the accused has not taken any such plea but he has emphatically denied the prosecution allegation in his examination u/s 313 Cr.P.C. It will not be out of the place to note here that in a decision of the Honourable High Court reported in 1994-4 O.C.R. at page 554 (R.C. Prasad-Vrs-State), it is held that even if there is no chemical examination to know whether the seized articles is liquor and other exciseable articles or not, the Court can fall back upon other evidence on record. Thus it is to be seen whether the evidence of the prosecution witnesses are acceptable in the absence of chemical examination.” 5. The judgment of conviction and sentence passed by the learned J.M.F.C.(R), Cuttack in 2(a) C.C. Case No.102 of 1993 against the petitioner was called in question by filing Criminal Appeal No.50 of 1995 before the learned Adhoc Addl. District & Sessions Judge, Fast Track Court No.III, Cuttack. The Appellate Court dismissed the appeal inter alia stating that there was no reason to interfere in the judgment of the court below and accordingly the sentence awarded against the Page 4 of 8 petitioner to undergo S.I. of six months and to pay fine of Rs.500/- and to undergo S.I. of one month in default of payment of the fine was upheld. The Appellate court had also concurred with the findings of the court below to the effect that non-filing of the chemical examination report by the prosecution is not fatal to the prosecution case as the official witnesses had identified the seized articles of Rum and Beer by assessing the seal and label in the bottle. The Appellate court recorded the following finding: “7. The trial court has discussed the evidence of the witnesses in details and has considered the grounds which are taken up in this appeal, while writing the judgment. In this case, the constable of excise has seized the bottles containing rum and beer and has produced them before the S.I. of Excise along with the seizure list and the accused. The S.I. of excise applied his mind and conformed that the articles were rum and beer. From his evidence, it appears that the witness was also produced before him. On examination, he had found that the labels of the bottles and the seal were intact. It is the settled position of law that chemical examination is not must for a conclusion that the sealed and the labelled bottles of rum and beer contained rum and beer only and nothing else. Therefore, the non- examination of such liquid by way of chemical test cannot be considered as fatal for the prosecution.” 6. Having failed in the Appeal, the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. Page 5 of 8 7. Heard Ms. Anima Dei, learned Amicus Curiae for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 8. Ms. Anima Dei, learned Amicus Curiae appearing for the petitioner vehemently argued that the conviction recorded against the petitioner cannot sustain the scrutiny of law on two counts. Firstly, as per the evidence of P.W.2, the seizure of the articles could not be proved on record because P.W.2 very specifically stated in the dock that he had no knowledge of seizure. However, the courts below have believed the seizure only on the basis of the admitted signature of P.W.2 in the seizure list. Secondly, it is apparent from the record that there is no scientific evidence placed on record to suggest that the articles seized are liquor. However, the courts below have accepted the testimony of P.W.3 that out of experience, P.W.3 has assessed the bottle on the basis of the label in the bottle that carries Rum and Beer. Therefore, the courts below have said that non-production of the chemical test report or any scientific evidence by the prosecution is not fatal. In that regard Ms. Dei relied upon the judgment of this Court reported in 1993 (II) OLR 392, Suma Page 6 of 8 Das v. State of Orissa. She relied upon paragraph-8 of the judgment which reads as under: “8. No doubt it is true that the menace of illicitly distilling of liquor is a fact which is gravely injurious to the society but before the liberty of a man is deprived of on such ground, it is necessary the offence alleged against him must be established that conclusively. It is the paramount duty of the excise personnel to see that the prosecutions are well-launched on the basis of proper investigation. There is absolutely no reason as to why this minimum cannot be done so that the offenders are not let off. It has been repeatedly held by this Court that though chemical test not a must always, yet the test must be conducted by experienced and specially trained officers. It is high time that the department takes note of such fact and brings on record the evidence relating to the experience in the line and the nature of the special training imparted to the testing officer as also the nature and manner of the tests conducted. Bereft of that the prosecution would run the risk of failure. Coming to the present case I find that the only evidence is that of PW 2, the Excise S.I. who stated that he examined the liquor by blue litmus paper colour of which turned red and he also conducted the hydrometer test and found the strength of liquor 50.00 up, indication 80.00 and 85.00 up. He also conducted smell test and from the tests and from his six years’ departmental experience, he opined the contents to be illicitly distilled liquor. There is no evidence as to what type of experience he had and there is absolutely no evidence if he had received any special training to conduct the tests. There was also no evidence of the manner and procedure of hydrometer test conducted. As such it is not possible to accept his evidence as that of an expert. For such reason, the petitioner becomes entitled to acquittal in the case.” 9. I have perused the judgment of conviction and order of sentence passed by the Courts below and analyzed the evidence on the strength of the case law cited by the learned Amicus Curiae. I am of the considered view that the prosecution has miserably failed to prove its case on Page 7 of 8 record. Therefore, the petitioner is entitled for acquittal in the matter. Accordingly, the judgment and order dated 06.12.2001 passed by the learned Adhoc Addl. District & Sessions Judge, Fast Track Court No.III, Cuttack in Criminal Appeal No.50 of 1995 and the judgment and order dated 25.03.1995 passed by the learned J.M.F.C.(R), Cuttack in 2(a) C.C. Case No.102 of 1993 are set aside and the petitioner is acquitted from the charges for alleged offence under Section 47(a) of the Bihar and Orissa Excise Act and the bail bond furnished by him stands discharged. I place on record the appreciation for the effective assistance rendered by Ms. Anima Dei, learned Amicus Curiae.
Decision
10. The Criminal Revision is accordingly disposed of. ………………….. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 16th July, 2024/ Asish Kumar Kar, ADR-cum-Additional Principal Secretary Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Jul-2024 11:43:11 Page 8 of 8