The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.425 of 2012 (In the matter of an application under Sections 401 read with Section 397 of the Criminal Procedure Code, 1973) Padmalochan Meher ……. Petitioner -Versus- State of Odisha ……. Opposite Party For the Petitioner : Mr. S.K. Joshi, Advocate For the Opp. Party : Mr. S.R. Roul, Additional Standing Counsel CORAM:
Legal Reasoning
in the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdev Mohapatra, reported in 2012 (Supp-II) OLR 469. 11. In such view of the matter, the present Criminal Revision in so far as the conviction is concerned is turn down. But instead of sentencing the Page 7 of 8 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 six months 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 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 six months.
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.06.2024 :: Date of Judgment: 16.07.2024 S.S. Mishra, J. 1. The present Criminal Revision filed under Sections 401 and 397 of Cr.P.C. is directed against the judgment and order dated 14.02.2012 passed by the learned Additional Sessions Judge, (FTC), Bhawanipatna in Criminal Appeal No.49/45 of 2006-2007, whereby the judgment of conviction passed by the learned S.D.J.M., Bhawanipatna in 2(a) C.C. Case No.442 of 2002 has been confirmed and the order of sentence has been modified. 2. The prosecution case in brief is that on 27.09.2003, the S.I. of Excise of Bhawanipatna Sadar along with other police personnel while performing patrol duty at village Phatkamal, received information of illegal possession of I.D. Liquor by the petitioner in his house. Therefore, the S.I. of Excise searched the house of the petitioner in presence of the petitioner and witnesses. On search, he recovered and seized one plastic jar containing 10 liters of I.D. Liquor from the possession of the petitioner from his house. When he tested the seized liquor by means of blue litmus paper and hydrometer, it was found that the seized liquor was I.D. Liquor. He seized the liquor and prepared the seizure list in presence of the witnesses and the accused-petitioner. Thereafter, he sealed the seized jar by means of paper seal, arrested the petitioner and released him on bail. After completion of investigation, P.R. under Section 47(a) of the Page 2 of 8 Bihar & Orissa Excise Act was submitted against the petitioner resulting in the trial of the case. 3. Heard Mr. S. K. Joshi, learned counsel for the petitioner and Mr. S. R. Roul, learned Additional Standing Counsel for the State. 4. To bring home charges, the prosecution had examined as many as four witnesses and four documents were exhibited. Out of the four witnesses, P.W.1 was the Sub-Inspector of Excise. P.W.2 was the A.S.I. of Excise. P.W.3 was an independent witness and P.W.4 was the Excise Constable in this case. Admittedly, there was no chemical examination report placed on record. 5. The learned trial Court analyzed the evidence of P.Ws.1, 2 and 4 to be reliable and trustworthy and on the basis of their testimony believed the fact of seizure. The learned trial Court had also accepted the evidence of P.W.1 as opinion of the expert and held the seized liquor to be I.D. Liquor. By relying upon the testimony of the official witnesses, the trial Court found the petitioner guilty for the offence under Section 47(a) of the Bihar & Orissa Excise Act and substantively sentenced the petitioner Page 3 of 8 to undergo two years R.I. and to pay a fine of Rs.5,000/-, in default to undergo R.I. for two months more. 6. The judgment of conviction and sentence dated 08.08.2006 passed by the learned S.D.J.M., Bhawanipatna in 2(a) C.C. Case No.442 of 2002 was called in question by filing Criminal Appeal No.49/45 of 2006-2007 before the Court of learned Additional Sessions Judge (FTC), Bhawanipatna by the petitioner. The learned Appellate Court although confirmed the conviction as had been recorded against the petitioner by the trial court but modified the sentence imposed against the petitioner and directed the petitioner to undergo R.I. for six months with a fine of Rs.500/- and to undergo further R.I. for fifteen days, in default to make the payment. The petitioner has assailed the aforementioned judgment/order of conviction and sentence in the present Revision Petition having failed in his appeal. 7. I have perused the evidence brought on record by the prosecution and analyzed the judgments of the Courts below. Two vital contentions has been raised by the petitioner namely in absence of support of the independent witness, the conviction cannot be sustained. P.W.3 being the Page 4 of 8 only independent witness, who declined to support the prosecution, becomes fatal to the prosecution case. Therefore, on the strength of the evidence of P.Ws.1, 2 and 4, the conviction cannot be sustained. The Appellate Court had dealt with this aspect of the matter in paragraph-8 of the judgment, which reads as under:- <8. First of all coming to the first contention of the appellant, admittedly P.W.3, the only independent witness examined in this case has not supported the case of the prosecution. But law is well settled by plethora of decisions that law does not put any embargo for relying on evidence of official witnesses. Conviction can be based on the evidence of official witnesses even though the independent witnesses do not corroborate, if their evidence is found to be cogent, reliable and trustworthy. In the present case all the official witnesses P.W2.1, 2 and 4 have unequivocally deposed that on the relevant day in course of their patrolling, house of the appellant was searched and on search one plastic jar containing 10 liters of I.D. Liquor was seized from the possession of appellant from his house. It is also categorically stated by them that the seized liquor was measured and seizure list was prepared then and there. Their evidence is found to be quite cogent and consistent with regard to search, recovery and seizure from the possession of appellant from his house. It is neither proved nor elicited by the defence that any of them had animosity or ill feeling with the appellant which could prompt them to implicate him in a false case. It has not been suggested to them that they had any animosity against the appellant. There is absolutely no reason as to why the Excise Officials would falsely implicate the appellant. Hence in the facts and circumstance of this case the evidence of the official witnesses appears to be completely cogent, reliable and trustworthy. Their testimony cannot be rejected on the sole ground that their evidence has not been supported by the independent witness P.W.3. Now coming to the next Page 5 of 8 contention of the appellant regarding non production of the seized liquor in court, law is settled that for the reason of non production of seized liquor in court it cannot be conclusively held that accused was not in possession of it. (Reliance is placed in the case reported in (1991) 4 OCR 209). In the present case when the evidence of all three official witnesses consistently proves the fact of seizure and their evidence is found to be cogent, reliable and acceptable, non production of seized article in court cannot be a ground to disbelieve the fact of seizure.= 8. The second point raised by the petitioner to doubt the conviction order is that in the instant case, the chemical analysis report was not placed on record to ascertain as to whether the seized liquor is I.D. Liquor or not. To that, the Courts below have returned the finding that the evidence of P.W.1 being the S.I. of Excise is enough to prove the nature of seized liquor. P.W.1 is the Excise Inspector who had undergone distillery training and has experience of nineteen years. He has categorically deposed that he tested the seized liquor by means of blue litmus paper, which turned into red. He has also tested the seized liquor by means of hydrometer and found the strength to be 53.3 degree U.P. Therefore, in absence of the chemical analysis report also, the Courts below have recorded the finding that the seized liquor is nothing but the I.D. Liquor and convicted the petitioner. There is no reason for doubting Page 6 of 8 the concurrent finding of both the Courts below insofar as the reasoning recorded by the Courts below for finding the petitioner guilty for the offence under Section 47(a) of the Bihar & Orissa Excise Act. Therefore, I am not inclined to interfere in the instant matter. 9. At this stage, Mr. Joshi, learned counsel for the petitioner submits that in the event this Court is not inclined to interfere with the judgment of conviction, the petitioner may be extended the benefit of Probation of the Offenders Act. 10. Having regard to the fact that the Appellate Court has already reduced the sentence to that of six months R.I. and the fact that the incident had taken place in the year 2003, I am inclined to accede to the oral prayer made by the learned counsel for the petitioner. I am of the view that the petitioner’s case is directly covered by the ratio laid down
Decision
12. The Criminal Revision is accordingly disposed of. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 16th July, 2024/ Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 22-Jul-2024 14:25:19 Page 8 of 8