Criminal Appeal No. 22 of 2000 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 203 of 2006 An application under Section 397 read with Section 401 of the Code of Criminal Procedure challenging the judgment and order dated 03.11.2000 (27.11.2000) of learned Judicial Magistrate First Class, Jajpur Road in 2(a) C.C. Case No.18 of 1991 (Trial No. 176 of 1991) and the judgment and order dated 08.03.2006 of learned Adhoc Addl. Sessions Judge (Fast Track Court), Jajpur in Criminal Appeal No. 22 of 2000. -------------- Madhab Das @ Madhab Chandra Das ..… Petitioner -versus- State of Orissa ..… Opp. Party --------------------------------------------------------------------------- : Mr. Ratnakar Samantsinghar, Adv. For Petitioner 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 397 read with Section 401 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 08.03.2006 passed in Criminal Appeal No. 22 of 2000 by the learned Adhoc Addl. Sessions Judge (Fast
Facts
Track Court), Jajpur confirming the judgment and order dated 03.11.2000 (27.11.2000) passed by the learned Judicial Magistrate First Class, Jajpur Road in 2(a) C.C. Case No.18 of 1991 (Trial No. CRLREV No. 203 of 2006 Page 1 of 10 176 of 1991), convicting the petitioner under Section 47(a) of the Bihar and Orissa Excise Act and sentencing him to undergo R.I. for six months and to pay a fine of Rs.500/-, in default to undergo R.I. for 15 days by judgment. PROSECUTION CASE 2. The prosecution allegation in brief is that on 22.01.1991 at about 8.30 a.m., while P.W.2, the S.I. of Excise Dolipur was performing the patrolling duty at Laxmi Bazar, he found the petitioner was coming on the road holding a plastic jerrican containing ten litres of I.D. liquor. He measured it and tested it with blue litmus paper which turned red and hydrometer test. From his service experience and the tests, he confirmed that it was I.D. liquor. Thereafter he seized the liquor and prepared seizure list at the spot in presence of the witnesses. He also supplied a copy of seizure list to the petitioner. He arrested the petitioner and released the petitioner on bail and after completion of investigation the S.I. of Excise submitted P.R. against the petitioner under Section 47(a) of the Bihar and Orissa Excise Act. DEFENCE PLEA The plea of the petitioner was one of the complete 3. denial. CRLREV No. 203 of 2006 Page 2 of 10 WITNESSES AND EXHIBITS 4. To prove its case, the prosecution examined two witnesses and proved the seizure list as Ext.1. No witness was examined by the defence, nor any document exhibited. P.W.1 Bishnu Ch. Swain is the independent witness. He did not support the prosecution case. He stated that he does not know anything about the seizure of liquor from the petitioner. P.W.2 Riaj Ahmed Beg is the Sub-Inspector of Excise as well as the Investigating Officer of the case and he has stated that he has tested the I.D. liquor by using hydrometer test and blue litmus paper and proved that the strength of liquor was 55 degree U.P. He has produced the plastic jerrican in Court and it is marked as M.O.1. During cross-examination, he admitted that he has not sent the liquor for chemical test. He stated that on account of experience of 5 years in excise service he was confirmed that the liquor was I.D. liquor. TRIAL COURT JUDGMENT 5. After analyzing the evidence of the witnesses on record, the learned trial Court stated that this type of offence is rampant and now a days the teen agers were taking liquor for which they are committing many higher offences in our society. It declined to CRLREV No. 203 of 2006 Page 3 of 10 released the accused under the Probation of Offenders Act, observing that if the accused was released under the P.O. Act, it will encourage others to commit such type of offence. Considering the age of the convict as well as the quantity of liquor seized from his possession, convicted him and sentenced him to imprisonment for six months R.I. and to pay fine Rs.500/-, in default to undergo R.I. for 15 days. APPELATE COURT JUDGMENT 6. The learned Appellate Court dismissed the appeal confirming the conviction and sentence of the petitioner. It referred to the decision in the case of Bharat Sahu vs. Stae of Orissa : 1990 (70) CLT 47, wherein I.D. liquor had not been put to chemical analysis, but it was held that blue litmus paper test and hydrometer test were sufficient to establish that I.D. liquor was recovered from the possession of the petitioner. On the basis of service experience of P.W.2 and other tests conducted by him, even if the substance had not been sent for chemical examination, it can safely be inferred that I.D. liquor was recovered from the conscious possession of the petitioner. The Court did not find any reason to take a view contrary to that of the learned trial Court, which had discussed all material facts as to come to a finding. CRLREV No. 203 of 2006 Page 4 of 10 SUBMISSIONS 7.
Legal Reasoning
In Abhimanyu Sahu (supra), this Court has held that the burden is on prosecution to prove its case that the seized materials was in conscious possession and exclusive possession of the accused. It cannot take the benefits of weakness of the defence. The prosecution having failed to do so, the conviction of the petitioner cannot be sustained. The prosecution under Section 47(a) of the Bihar and Orissa Excise Act arises only when the possession is proved. If the prosecution fails to prove beyond all reasonable CRLREV No. 203 of 2006 Page 6 of 10 doubt that the petitioner was in conscious and exclusive possession of the I.D. liquor, then the conviction of the accused under Section 47(a) of the Bihar and Orissa Excise Act is illegal and incorrect. In the case of Mohan Behera (supra), this Court, has held that if the seizure was made on the road, but no other independent witnesses was examined who had seen the occurrence and further the chemical test of the article seized from the accused is not produced in the Court, then the accused cannot be convicted under Section 47(a) of the Bihar and Orissa Excise Act. In the case of S. Dasarathi Reddy (supra), this Court found that no chemical examination was done, only litmus test and hydrometer test were conducted. The person who seized the liquor says that he had training in distillery but there is no material to show that he was trained for testing of liquor. Hydrometer test is not safe nor conclusive and the seized substance should have been sent for chemical examination. In Akshaya Kumar Senapati (supra), this Court did not interfere with the conviction of the petitioner, holding that factum of possession from the thatch of the petitioner had been proved by the evidence of the prosecution witnesses. It further held that on account of delay, the sentence imposed on the petitioner was liable CRLREV No. 203 of 2006 Page 7 of 10 for interference as no useful purpose would be served by directing him to serve the remaining portion of his sentence. In the case of Bharat Sahu (supra), this Court has held that even if the seized liquor was not put to chemical examination, blue litmus paper test and hydrometer test are sufficient to establish that ID Liquor was recovered. 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 AND CONCLUSION 10. I am not inclined to accept the submission of the learned counsel for the petitioner that without corroboration by an independent witness, the evidence of P.W.2 the S.I. of Excise regarding seizure cannot be accepted, as it is the settled principle CRLREV No. 203 of 2006 Page 8 of 10 of law that a conviction can be based on the evidence of an official witness if his evidence is cogent and otherwise reliable , unless it is shown that he had personal animosity against the accused or had reason to falsely implicate him. In this case the plastic jerrican has also been produced in Court. So the factum of seizure cannot be disputed or disbelieved. 11. But no documents or details of the experience and departmental training of the S.I. of Excise (P.W.2) have been proved. P.W 2 has admitted that the seized substance has not been sent for chemical examination. P.W.2 has stated that the blue litmus paper turned red and hydrometer showed 55% UP. But it is well known that the litmus paper test is to test the PH factor of a substance – whether it is alkaline or acidic. If a blue litmus paper turns red, that shows that the substance is acidic. A hydrometer measures the specific gravity of a liquid. So an acidic substance having a specific gravity of 55% does not establish that the liquid is I.D. liquor. Hence a chemical examination will confirm that. Therefore, I find merit in the submission of the learned counsel for the petitioner that as the seized substance has not been sent for chemical examination and the experience and training of P.W.2 is not supported by documents, his conviction is liable to be set aside. CRLREV No. 203 of 2006 Page 9 of 10 12. The conviction of the petitioner under Section 47(a) of the Bihar and Orissa Excise Act by the learned J.M.F.C., Jajpur Road in 2(a) C.C. Case No 18 of 1991 (Trial No. 176 of 1991), confirmed by the learned Adhoc Addl. Sessions Judge (Fast Track Court), Jajpur in Criminal Appeal No. 22 of 2000 is set aside. 13. The Criminal Revision is accordingly allowed. 14. As the petitioner is stated to be on bail, his bail bonds are discharged. 15. 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 of 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: 02-Jun-2025 20:17:19 CRLREV No. 203 of 2006 Page 10 of 10
Arguments
Mr. Ratnakar Samantsinghar, learned counsel for the petitioner has submitted that both the learned Courts below have not properly appreciated the evidence of P.W.1 who is the independent witness to the occurrence who had denied knowledge about the occurrence but mechanically relied upon the solitary evidence of P.W 2 the S.I., Excise treating him as an expert. As he does not have specialized training, he cannot be treated as expert under Section 45 of the Indian Evidence Act. The evidence of P.W.2 could not have been accepted in the absence materials on record to show that he has the necessary skill and experience. It is further submitted that it would be unsafe to convict the petitioner on the sole evidence of P.W.2, when he has not produced supporting materials regarding his training and experience. In support of his submissions, he has relied on the following decisions: - (i) Abhimanyu Sahu vs. State of Orissa: 2010 (II) OLR 426. (ii) Mohan Behera vs. State of Orissa reported in 2003 (I) OLR 344. (iii) S. Dasarathi Reddy vs. State of Orissa reported in 1998 (I) OLR 315. CRLREV No. 203 of 2006 Page 5 of 10 8. Mr. M.R. Mishra, learned Addl. Standing Counsel for the State has submitted that the evidence of the prosecution witnesses would be sufficient for proving the factum of possession by the accused and it is not necessary to conduct any chemical test to identify the substance as I.D. liquor, inasmuch as several tests had been conducted by the Excise Authority and by mere smell, they are competent to decide whether the article is a liquor or not . He relies on the following decisions in support of his submission :- (i) Akshaya Kumar Senapati vs. State of Orissa : (2000) 19 OCR 178. (ii) G. Sahukar vs. State of Orissa reported in (2000) 19 OCR (SC) 688. JUDICIAL PRONOUNCEMENTS 9.