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Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.341 of 2007 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Manoj Kumar Pradhan @ Manoj Pradhan ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. L. Samantray, Advocate For the Respondent : Mr. R.B. Dash, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 17.07.2025 :: Date of Judgment: 18.07.2025 S.S. Mishra, J. The present Criminal Appeal, is filed by the appellants under Sections 374 of the Cr. P.C., assailing the judgment and order dated 29.06.2007 passed by the learned Additional Sessions Judge (Fast Track), Aska in S.T. No.3 of 2007/S.T. No.25 of 2007, whereby the learned trial Court has convicted the accused-appellant U/s.47(a) of Bihar and Odisha Excise Act,1915 and sentenced him to undergo R.I. for two years and imposed a fine of Rs.5,000/- in default to undergo R.I. six months 2. The case of the prosecution, tersely stated, is that on 02.10.2005, during an excise raid and patrolling at Aska Bus-Stand area, the informant and his team received reliable information that the appellant was in possession of and selling adulterated and noxious Indian liquor from his Pan Cabin Shop near Ashoka Filling Station. Upon reaching the spot, the raiding party found a white plastic jerrican containing such liquor, 90 poly pouches (each of about 200 ml), and two steel glasses smelling of liquor. The appellant failed to produce any license or authority for possession or sale of the said liquor. The articles were
Legal Reasoning
seized in the presence of a witness, and an FIR was drawn at the spot. The accused along with the seized articles was produced before the IIC, Aska P.S., where a case was registered and investigation was initiated. Upon completion of investigation, the accused-appellant was charged under Sections 272/273 IPC read with Section 47(a) of the Odisha & Bihar Excise Act. On his stance of denial, he was put to trial. Page 2 of 11 3. To establish the charges against the accused, the prosecution examined total of eight witnesses. P.W.5 was the informant and the then A.S.I. of Police, who also effected the seizure. P.Ws.3, 4, and 6 were part of the police team that accompanied P.W.5 during the raid. P.W.1 is an independent witness, P.W.2 is another independent witness who was present at the time of seizure. P.Ws.7 and 8 are the two Investigating Officers who conducted the investigation at different stages. In addition to the oral evidence, the prosecution has also exhibited documentary evidence marked as Exts.1 to 6 and material objects marked as M.Os. I to V. On the other hand, no witness has been examined on behalf of the defence. 4. The learned trial Court analysed the oral evidence and documents on record mainly on the points that, was the appellant in conscious possession and selling the nefarious substance without any license knowing it to be noxious. The part of the judgement in which the learned court below has categorically dealt with the evidences relating to the possession is reproduced for ready reference: Page 3 of 11 8. With regard to possession, it may be stated that 'possession' means actual possession with dominion and control over the article. Thus, element of conscious-ness or knowledge of that possession and actual physical possession or a power or control over the articles seized, are the essential while considering the factum of possession. Applying the above test to the facts of the present case, it is found that P.W.5 the A.S.I. of Police stated that on 2.10.05 he along with P.Ws.6. 4, and 3 as per S.D. Entry No. 30 of Aska P.S.and command certificate No.9 conducting evening patrolling and excise at Aska Bus Stand receiving reliable information that the accused is selling adulterated noxious liquor in his open pan cabin shop situated in front of Ashoka Filling Station immediately rushed there and conducted raid and search of the said shop of accused and found one plastic jerrican containing around 20 litres of noxious adulterate id liquor and 90 nos.of poly pouches each containing 200 ml.of i/d liquor from the exclusive and conscious possession of the accused who failed to produce any licence or authority for his such illegal possession. He has further stated that he found two numbers of steel glasses having smell of liquor from his possession. So, in presence of witnesses he seized the same at the spot, and extracted 500 ml.of liquor from the plastic jerrican and kept the same in a plastic bottle for Chemical Examination and sealed the containers in presence of witnesses. He has further stated that he served a copy of the seizure list to the accused and obtained his signature and also drew the F.I.R.at the spot, returned to P.S. with seized liquor and accused and produced the same before the I.I.C. who registered the case and directed S.I. R.P.Nayak to take up investigation. He proved the seizure list as Ext.1/1 and his signature on it to be Ext.1/3. Similarly, he proved the F.I.R.as Ext.2 and Ext. 2/1 is his signature and Ext. 2/2 and 2/4 are to be the signatures of I.I.C. and Ext. 2/3 is the Formal F.I.R. He also proved the seized jerrican containing liquor and two steel glasses as M.Os I, II and III respectively. Though he was subjected to lengthy cross-examination by the defence but nothing substantial has been elicited from him to discredit his such version Rather, he has clarified during cross- examination that there was no residential houses near the Page 4 of 11 spot but one petrol pump and other official buildings and shops are situated and the shop of accused was an open cabin where the accused had also kept articles like pan, cigarette, mixture etc. He has further stated that as the jerrican was of 20 litres capacity and the liquor was in full capacity, so he did not measure the same. He admits that and though he has not undergone any speciao training so far excise act is concerned, but from smell and departmental experience he came to know that the seized liquid to be liquor. He has that he called some independent persons present at the spot but nobody turned up except one Muna Pollei (P.W.2). He has also stated that the accused was known to him earlier to the incident. further stated 9. In this connection P.Ws.6.4 and 3 who are the staffs of Aska P.S. accompanied P.W.5 in the raid and present during search & seizure have unequivocally deposed having detected the accused while he had kept in his possession inside his open pan cabin shop, the jezrican having liquor of 20 litres of capacity and 90 nos. of poly pouches having liquor and 2 nos. of steel glasses having smell of liquor which was seized by proved P.W.5. Further, it is proved by P.W.4 that Ext.1/2 is his signature in the seizure list marked Ext.1/1. Though all the above witnesses have been cross- examined at length but nothing substantial was brought out to discredit their evidence. Rather, P.W.4 has clarified that he himself and A.S.I. (P.W.5) brought the materials from inside the cabin and his co-staffs had detained the accused when they made the recovery. He has also stated the size of cabin is approximately of 5' x 5' in the length and breadth. No doubt, it has been brought out from the evidence of P.W.6 that he has not specifically stated regarding seizure of the plastic jerrican and poly pouches specifically of 20 litres capacity and 90 nos. of poly pouches of 200 ml. each. But his evidence is clearly corroborative regarding seizure of liquor kept in a plastic jerrican and poly pouches by the accused inside his pan cabin shop. It has not been suggested by Defence to these witnesses that they had any animosity against the accused and/or that they were trying to falsely implicate the accused in this case. Page 5 of 11 No doubt, P.W.2 who is an independent witness examined to prove seizure of contraband articles denied the factum of seizure but his evidence that accused has his betel shop situated in front of lease shop houses of M.P.C.S., Aska and further his evidence that on 2.10.05 he had taken tiffin for the accused who was inside the P.S. wherein signature Ext.1 was taken clearly supporting the case of prosecution that the accused has got his pan shop and was in custody of police on the relevant date. Though during cross-examination P.W.2 has denied the accused has got no pan shop at Aska Bus Stand but has admitted 8 to 10 betel shops situated in front of chop house of M.P.C.S., Aska. Similarly, though P.W.1 an independent witness who is an employee of M.P.C.S., Aska has turned hostile but stated that they have got shop houses at Aska Bus Stand under A.C.M.P.C.S., Aska. It is submitted by the learned Defence Counsel that as P.W.2 did not support the factum of seizure, so the evidence of P.Ws.5,6,3 and 4 who are the official witnesses ds cannot be believed. In this connection, it may be stated here that law does not put any embargo for relying on the evidence of official witnesses. Insistence on corroboration is a mere requirement of prudence and caution. In the present case though P.W.2 has not supported the factum of seizure but evidence of P.Ws.5,6,3,4 cannot be jettisoned solely on the ground that they are official witnesses. If their evidence inspires confidence, the official tag cannot brand them and unreliable. As discussed in their evidence, there is nothing brought out by the Defence or even no suggestion has been put that for any extraneous region they falsely implicated the accused. For the aforesaid reasons I have no hesitation to hold that prosecution has proved seizure of excise articles from the possession of the accused. 5. By appreciating and analyzing the evidence brought on record by the prosecution and taking into account the defense plea eventually the learned trial Court arrived at the following conclusion:- Page 6 of 11
Decision
“11. In the result, when prosecution has failed to establish its charge against the accused U/s.272/273 of the I.P.C. but has successfully proved its case Under Sec.47(a) B & O.E. Act. against the accused. Accordingly, I hold the accused found not guilty for the offences U/ss. 272/273 I.P.C. and acquitted him thereunder as per Sec 235(1)Cr.P.C. But on the other hand, as prosecution has established its charge U/s.47(a) B & O.E. Act against the accused, found him guilty and convicted him thereunder.” 6. Aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge, Fast Track Court, Aska, the present Appeal has been preferred by the appellant. 7. Heard Mr. L. Samantray, learned Counsel appearing for the appellants and Mr. R.B. Dash, the learned Additional Standing Counsel for the state. 8. Mr. Samantray, learned Counsel for the appellant has strenuously argued the case on merit and taken me to the evidence on record. After arguing for some time, he submitted that keeping in view the procrastinated judicial process undergone by the appellants in this case and the ordeal of trial faced by the appellant, he would rather confine his argument to the quantum of sentence. He submitted that the incident pertains to the year 2005 (02.10.2005). The appellant has undergone the Page 7 of 11 rigors of trial for about two years. Thereafter, the appeal was preferred in the year 2007 (01.07.2007). The appeal has been prolonging to be heard for about 18 years. The appellant who was in his twenties then is now in his forties and therefore, sending him to custody for fulfilling his remaining sentence at this belated stage would serve no purpose. The learned Counsel further submitted that the appellant has no criminal antecedents, and no other case of a similar nature or otherwise is stated to be pending against him. Over the years, he has led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating him after such a long delay, it is argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon him but also upon his family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. Therefore, in the fitness of situation, the appellant may be extended the benefit of Probation of Offenders Act read with Section 360 Cr.P.C. Page 8 of 11 9. Regard being had to the time already elapsed, appellant’s societal status, clean antecedents and the fact that the incident relates back to the year 2005, I am of the considered view that the appellant is entitled to the benefit of the Probation of Offenders Act read with Section 360 of Cr.P.C. Additionally, the case of the appellant are also covered by ratio of the judgment of this Court in the case of Premananda Sahu Vs. State of Odisha1, wherein this court while extending the benefit of Probation of Offender’s Act in a case of conviction under Section 47(a) of Bihar and Orissa Excise Act, 1915 held that the appellant should be extended the benefit of section 4 of the P.O. Act and held thus: “12. Having regard to the fact that the occurrence took place more than 36 years ago and the appellant is presently aged about 72 years, ends of justice would be best served if the appellant is released as per the provision of the Probation of Offenders Act instead of being directed to serve the remaining part of the sentence at this distance of time. 13. In the result, the appeal is allowed in part. The impugned judgment of conviction is hereby confirmed but the sentence is modified to the extent that instead of serving the sentence imposed by the trial court, the appellant shall be released as per Section 4 of the PO Act. 1 CRA No. 229 of 1993 Page 9 of 11 14. For the above purpose, the appellant shall appear before the trial court on 4th September, 2023 for receiving further instructions. It is made clear if the appellant does not appear on the date fixed, the original sentence shall revive. This order be communicated to the appellant in his permanent address as also to the court below. The court below shall also issue notice to the appellant as regards the date of appearance.” The present case stands on similar footing, warranting a compassionate and reformative approach. The appellant, having faced the rigours of trial and appeal for nearly two decades, deserves the benefit of reformative justice rather than retributive punishment. Therefore, guided by the ratio of Premananda Sahu (supra) and considering the mitigating circumstances highlighted hereinbefore, it would be just and proper to extend the benefit of Section 4 of the Probation of Offenders Act to the appellant, rather than sentencing him to further incarceration. 10. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned is turned down. But instead of sentencing the appellant to suffer further imprisonment, this Court directs the appellant to be released under Section 4 of the Probation of Offenders Page 10 of 11 Act for a period of one months on his executing bond of Rs.5,000/- (Rupees Five Thousand) within fifteen days with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months. However, the sentence for fine of Rs.5000/- is upheld which shall be payable by the appellant as per the procedure established by law, in default of which he would suffer rigorous imprisonment for a period of three months. 11. With the above observation, the CRLA is accordingly disposed of. The High Court of Orissa, Cuttack. Dated the 18th of July 2025/ Ashok (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 22-Jul-2025 14:30:09 Page 11 of 11