Budumuru Jagannadham vs State of Orissa

P.K. Mohanti, J.—This criminal revision is directed against an order of conviction u/s 47(a) of the Bihar and Orissa Excise Act and sentences of R. I. for two months and a fine of Rs. 100/- with a default sentence of R. I. for a further period of one month.

Prosecution case was that on 12-4-1971 at about 9 p. m. the house of the Petitioner was searched by the Officer-in-charge of the Gunupur Police Station and 29 bottles of foreign liquor were seized from an almirah of his house.

The Petitioner denied the seizure and pleaded innocence.

At the trial, prosecution examined six witnesses of whom p. ws. 2 to 5 are police officers. The trial Court on a consideration of the evidence of the witnesses believed the prosecution case and held the Petitioner guilty. On appeal, the learned Sessions Judge confirmed the order of conviction and sentence.

It is urged in this criminal revision that the prosecution has failed to establish that the bottles seized from the house of the Petitioner can tamed foreign liquor. The seized bottles were not produced in Court at the time of trial for identification by the witnesses. They were produced at the time of argument and the learned Magistrate found that the signature of the police officer (p. w. 5) appearing on the seizure list Ext. 1 rallied with the signatures on the bottles produced. Upon such finding he came to the conclusion that the bottles were seized from the Petitioner and that they contained foreign liquor. The learned Sessions Judge made no endeavour to examine the evidence judicially and weigh the same properly afresh for himself to find out whether foreign liquor was seized from the possession of the Petitioner.

As the seized bottles were not produced at the time of trial, the signatures appearing on the bottles were not proved to be of p. w. 5. The trial Court erred in holding that the signatures on the bottles were of p. w. 5 without any legal proof. Even assuming that the signatures tallied, that does not lead to the inference that the contents of the bottles were foreign liquor. The police officer (p. w. 5) who conducted the search stated that he sent a requisition to the S. I. of Excise for examination of the seized bottles and obtained the report Ext. 2 from the latter. His evidence does not show that he himself had despatched the seized bottles to the Excise Sub-Inspector. Ext. 2 is the report of an Excise Sub-Inspector which shows that the contents of the seized bottles were tested and were found to be foreign liquor. The S. I. of Excise who tested the contents of the bottles has not been examined in the case. As the seized bottles were not produced in Court during the examination of the witnesses they could not be identified as having been seized from the possession of the Petitioner. Thus there is no connecting evidence to show that the bottles sent to the Excise Sub-Inspector were those seized from the house of the Petitioner and that they contained foreign liquor, it is in evidence that the bottles were sealed in seized condition. Therefore the bald statement of p. w. 5 that the contents of the bottles were foreign liquor is not sufficient to prove that fact. His evidence as regards the nature of the contents of the bottle might have been believed if the bottles were produced in Court and identified by witnesses. Unfortunately this could not be done. The reasons assigned by the prosecution for non-production of the seized bottles were that the Court Malkhana is situated at a distance of about 4 kilo-meters from the Court building and for some years there has been such a situation that the present C. S. I. has not been placed in charge of the Malkhana as one of his predecessors went on transfer without making over charge of the articles to his successor. The explanation is far from satisfactory. In a criminal trial it is the duty of the prosecution to place all the material evidence before the Court. It was also the duty of the Court to see that all the incriminating articles seized and kept in the Court Malkhana are produced at the time of trial. .

In view of the unsatisfactory features of the case as discussed above it is not possible to hold that the prosecution case has been established beyond all reasonable doubt. The Petitioner is, therefore, entitled to acquittal.

The result therefore is that the criminal revision is allowed and the Petitioner is acquitted of the charge u/s 47(a) of the Bihar and Orissa Excise Act. His bail bond be cancelled. Fine if already realised be refunded.

Revision allowed.