The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.271 of 2011 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) Baliram Halwa ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. Asit Kumar Jena, Advocate For the Opp. Party : Mr. B.K. Ragada, Additional Government Advocate CORAM:
Legal Reasoning
covered by ration of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp-II) OLR 469. Page 8 of 9 19. In such view of the matter, the present Criminal Revision in so far as the conviction is concerned is turned down. But instead of sentencing the 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 one year 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 one year.
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 24.06.2024 : Date of Judgment: 16 .07.2024 S.S. Mishra, J. The present Criminal Revision filed under Sections 401 read with Section 397 of Cr.P.C. is directed against the judgment and order dated 28.02.2011 passed by the learned Addl. Sessions Judge (FTC), Malkangiri in Criminal Appeal No.44 of 2008, whereby the judgment of conviction and order of sentence passed by the learned Chief Judicial Magistrate, Malkangiri in 2(a) CC No.18 of 2007/T.R. No.10 of 2008 has been confirmed. 2. The Petitioner was subjected to prosecution in 2(a) CC No.18 of 2007/T.R. No.10 of 2008 registered under Section 47(a) of the Bihar & Orissa Excise Act. 3. The prosecution case in brief is that on 11.06.2006 at 9.30 a.m., near a small river by the side of a forest adjoining to the village Korukonda, the accused was found preparing I.D. liquor illegally by the Sub-Inspector of Excise, Malkangiri. The accused was apprehended and in presence of the witnesses, one earthen pot containing 7 litres of I.D. liquor, one aluminium pot containing 15 kgs. of fermented Mohua wash, one earthen still head, one bamboo pipe with smell of liquor and one earthen pot containing 20 kgs. of hot fermented Mohua wash were seized from the exclusive and conscious possession of the accused. The seized liquor and Mohua wash were subjected to due examination by the S.I. of Excise and even sample of seized liquor and wash were sent to the State Drug Testing Research Laboratory, Bhubaneswar. On completion of investigation, the aforesaid Excise Officer submitted Prosecution Report Page 2 of 9 against the accused-petitioner under Section 47 (a) of the Bihar and Orissa Excise Act. 4. In order to substantiate its case, the prosecution has examined as many as two witnesses and seven documents have been exhibited. The plea of the defence is one of clean denial and false implication. The defence had examined two witnesses on its behalf. 5. The learned Trial Court analyzed the entire evidence on record and found that the Petitioner is guilty of the offence under Sections 47(a) of the Bihar and Orissa Excise Act and sentenced him to undergo rigorous imprisonment of one year and to pay fine of Rs.2,000/- (Rupees two thousand) for the commission of offence under Section 47(h) of the Bihar and Orissa Excise Act. In default of payment of fine, the convict was directed to undergo simple imprisonment of three months more. 6. The judgment of conviction and sentence dated 26.08.2008 passed by the learned Chief Judicial Magistrate, Malkangiri in 2(a) CC No.18 of 2007/T.R. No.10 of 2008 was called in question by filing Criminal Appeal No.44 of 2008 before the Court of the learned Addl. Sessions Judge (FTC) Malkangiri by the petitioner. Page 3 of 9 7. Having failed in his appeal, the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition. 8. Heard Mr. Asit Kumar Jena, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State. 9. Perused the impugned judgment and order of conviction and sentence passed against the petitioner and carefully evaluated the evidence on record. 10. The petitioner stood charged for the alleged offence under Section 47(h) of the Bihar & Orissa Excise Act. The prosecution examined two witnesses only. Both the witnesses are official witnesses. P.W.1 was the Excise Constable whereas P.W.2 was the Sub-Inspector of Excise. However, the prosecution has relied upon various documents exhibited as Ext.1 to Ext.7. To disown the prosecution case, the petitioner has also led his defence evidence. The defence has examined two witnesses. 11. Learned Trial Court relying upon the testimonies of P.Ws. 1 & 2 opined that the version of the witnesses stands corroborated with the Page 4 of 9 documentary evidence. Accordingly, convicted the petitioner for the offence under Section 47 (h) of the Bihar & Orissa Excise Act and sentenced him to undergo one year R.I. and to pay fine of Rs.2,000/- (Rupees two thousand) and for default of payment, three months S.I. was also awarded. 12. The petitioner took up the matter in appeal before the learned Addl. Sessions Judge (FTC) Malkangiri in Criminal Appeal No.44/2008. The Appellate Court dismissed the appeal being devoid of merit. Hence, the petitioner has assailed the judgment of conviction and order of sentence passed against him in this revision petition. 13. I have perused the judgments of both the Courts below and analyzed the evidence brought on record by the prosecution orally and by way of documents. No doubt, the prosecution has failed to examine any of the independent witnesses. It appears from the record that several attempts were made by the prosecution to summon the independent witnesses. But the witnesses did not turn up. Therefore, the prosecution has strongly relied upon the Ext.4, which is the report of the Drug Testing & Research Laboratory to establish on record that the liquor Page 5 of 9 sample taken from the seized articles was I.D. liquor. The independent witness was the witness of seizure. In absence of the evidence of the independent witness, the prosecution has proved the seizure list, as in the seizure list, signature of the petitioner was identified by the petitioner himself. Learned Trial Court by meticulously dealing with the objections raised by the defence, has recorded the following findings: “8. Looking to such evidence of S.I. of Excise, it is found that his evidence regarding the presence of the accused at the spot is supported by the documentary evidence such as the seizure list Ext.1 and such as the presence of the signature of the accused upon seizure list as Ext.1/3. A suggestion has been given that accused was arrested from his house which the officer denied. The accused has examined himself as D.W. No.1 and while being examined in the Court he has deposed in contrary to his plea by stating that while he was ploughing his land near a small river near the spot the Excise officer caught hold of him and implicated him falsely in this case. He has not deposed in the Court that he was arrested from his house falsely. The defence witness No.2 similarly has not deposed in the Court that accused was arrested from his house. So the plea taken by the accused that he was arrested from his house and falsely implicated by the Excise Officer is found to be a false plea. The accused has not disputed his signature upon seizure list Ext.1/3. The evidence of the Excise Officer as a whole found very clear, cogent and trust worthy regarding presence of the accused at the relevant time of the occurrence at the spot and seizure of huge quantity of prepared I.D. liquor, Mohua wash with incriminating articles, for preparation of liquor. The evidence of P.W. No.2 is found supported by the evidence of the Excise Constable P.W. No.1. He has clearly deposed as to how much quantity of fermented Mohua wash, I.D. liquor, earthen pot, earthen still head, bamboo pipe with smell of liquor were recovered and seized from the possession of the accused by Excise Officer. In the cross examination he clearly stated that the seizure list was prepared at the spot and the spot of seizure was in exclusive possession of the accused because he made a fence around it. He denied the defence suggestion that the spot was accessible to general public and further denied that without proper Page 6 of 9 investigation the accused was falsely implicated in this case. So, the evidence of the Excise Constable P.W. No.1 is found not only clear, cogent but also fully corroborated the evidence of Excise Officer. The M.O. I and M.O.II produced in the Court are found not challenged by the defence and these materials objects are also to many extent supported the oral evidence of these two official witnesses.” 14. When the judgment of the Trial Court was called in question, the Appellate Court has also dealt with the matter carefully and recorded the following findings: “From the case record, it reveals that despite several attempts the attendance of the independent witnesses could not have been secured during trial. It is not the position of law that unless there is corroboration by independent witnesses the evidence of the official witnesses can not be accepted even if there is no inconsistency in between the evidence of the official witnesses. Rather the position of law is that the evidence of the official witnesses is admissible and conviction can be based on such evidence if such evidence is reliable and there is no inconsistency. (Subodh Sethi and another v. State, 73 (1992) C.L.T. Page 28, Para 8). From Ext.4 which is the report of the Drugs Testing and Research Laboratory, Orissa, Bhubaneswar it gets established that in the liquid samples I.D. liquor has been detected and so also Ethyl Alcohal and further the preparation was unfit for human consumption. The evidence of D.W.1 and D.W.2 is of no avail to the appellant. Hence, it is held that the appellant was engaged in distilling I.D. liquor and was also in possession of apparatus for preparing I.D. liquor. In other words, the appellant has violated the Clause (a) & (f) of Sec. 47 of Bihar and Orissa Excise Act and has been rightly convicted under Clause (h) of the said Act.” 15. I find no reason to interfere in the findings recorded by the Courts below in so far as the recording of conviction against the petitioner for the offence under Section 47 (h) of the Bihar & Orissa Excise Act is Page 7 of 9 concern. The Courts below have truly appreciated the evidence and concurrently returned the finding that the evidence of P.Ws.1 & 2 stands corroborated with the documentary evidence and found the petitioner guilty for the charged offence. 16. At this stage, Mr. Asit Kumar Jena, learned counsel for the petitioner submits that in the event, the conviction recorded against the petitioner is maintained by this Court, leniency should be shown to the petitioner by extending the benefit of Probation of Offenders Act. 17. I found from the record that after the Appellate Court’s judgment, the petitioner was taken into custody on 28.02.2011 and this Court vide order dated 03.05.2011 released him on bail. Therefore, the petitioner has already undergone about three months imprisonment. 18. The incident had taken place way-back in the year 2007. Much has changed by now. Therefore, the prayer made by learned counsel for the petitioner deserves merit. Even otherwise, the case of the petitioner is
Decision
20. The Criminal Revision is accordingly disposed of. ………………….. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 16th July, 2024/ Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 22-Jul-2024 13:57:55 Page 9 of 9