Mahadev Kisan vs State of Orissa

S. Acharya, J.—The Petitioner stands convicted u/s 47 of the Bihar and Orissa Excise Act (hereinafter referred to as the ''Act'') for being in possession of illicit undiluted Pachwai (Handia), and he has been sentenced thereunder to R. I. for six months.

The prosecution case, as revealed from the prosecution report, is that the Excise staff, on a surprise raid of the house of the Petitioner at 9 30 a. m. on 6-8-1976, found that the Petitioner was in possession of 40 litres of undiluted Pachwai without any licence.

The Petitioner admittedly is a member of the Scheduled tribe and the seizure was made in the district of Sundargarh, which admittedly was a non-prohibition district at the relevant time.

The prosecution did not examine any witness in this case.

In the examination of the Petitioner before the trial Court he merely stated that he bad some "Handia" in his possession, but that was certainly not 40 Kgs. He, however, stated that he did not have any licence for the Handia in his possession. Only in the prosecution report, which has not been proved by anybody, it is stated that the accused had about 40 Kgs. of undiluted Pachwai in his possession. The prosecution did not adduce any evidence to establish that fact in the Court. In view of the Petitioner''s assertion in his statement before the trial Court that be did not have the aforesaid quantity of Pachwai in his possession, it was incumbent on the prosecution to establish by production of evidence as to what particular quantity of Pachwai was actually found in the possession of the Petitioner. Section 19 of the Act says:

(1) No person not being licensed to manufacture, cultivate, collect or sell any intoxicant shall have in his possession any quantity of any intoxicant in excess of such quantity as the Board has u/s 5, declared to be the limit of a retail sale except under a permit granted by the Collector in that behalf.

The Board of Revenue, Orissa, by its notification No. 2768-Excise, dated the 14th August, 1965 has declared:

In exercise of the powers'' conferred by the provisions specified below of the Bihar and Orissa Excise Act, 1915 (Bihar and Orissa Act 2 of 1915) (hereinafter called the Act) and of the powers delegated by the Stare Government under Clause (e) of Sub-section (2) of Section 7 of the Act and in supersession of all previous notifications on the subject including those published in Board (Revenue Commissioner, Orissa''s) notification No. 3295-Ex, dated the 21st June, 1937, the Board of Revenue, Orissa, hereby declares under Sub-section (1) of Section 5 of the Act, that the quantities specified in column (3) of the. Table below shall, with effect from the 1st April, 1966, be the limit of retail sale in respect of intoxicants mentioned in column (2) and of localities and class of purchasers specified in column (1) namely:

(1) (2) (3)

Locality Name of intoxicant Limit of retail sale

xx xx xx

xx xx xx

(iv) For the non. Prohibition districts and the Scheduled Tribes in the State. Pach wai (undiluted) 7 kilograms or 7 litres (according to the practice in vogue in the particular area relating to the use of weights or measures for weighment or measurement of Pachwai)

(v) -do- Pachwai (diluted) 18 litres or kilograms (according to the practice in vogue in the particular area relating to use of weights or measures for weightment or measurement of Pachwai.)"

From the above, it is quite clear that Scheduled tribes men like the Petitioner, in the non-prohibition district of Sundargarh were permitted to have in their possession undiluted Pachwai of 7 Kgs. or 7 litres or diluted Pachwai of 18 Kgs. or 18. litres as mentioned in the said notification.

In this case the prosecution has not adduced any evidence to prove as to whether the Pachwai in question found in the possession of the Petitioner was diluted or undiluted Pachwai. There is also no evidence on record to show what quantity of Pachwai was actually found in the possession of the Petitioner. Without proof of the above facts and on the stand taken by the Petitioner in this case and in view of Section 19 of the Excise Act and the notification above-quoted the Petitioner cannot be convicted of the offence alleged against him.

In paragraph 4 of the impugned judgment the Court below has stated:

When there is no other evidence excepting the statement of the accused on the side of the prosecution to show that the Pachwai found under possession of the accused was more than 7 litres, the learned S. D. J. M. should have held that the prosecution has failed to establish its case and therefore should have acquitted the accused.

Having said so, it is not understood how in the next paragraph the Court below could maintain the conviction of the Petitioner. Both the Courts, as I find, have not taken pains to notice the above mentioned provisions of Section 19 of the Act.

On the above considerations I find that the conviction of the Petitioner in this case is ill-conceived and illegal. Accordingly the conviction of the Petitioner u/s 47 of the Act and the sentence passed against him thereunder are set aside and he is acquitted of the same.

The revision accordingly is allowed.

Revision allowed.