Rama Chandra Mallik vs State of Orissa

S.K. Mishra, J.—In this Revision, petitioner assails his conviction u/s 47(a) and (f) of Bihar and Orissa Excise Act, 1947 by the learned J.M.S.C., Puri on 30.04.1998 in 2(a) C.C. No. 129 of 1994, which has been confirmed by the learned Sessions Judge, Puri in Criminal Appeal No. 3 of 1998 as per the judgment dated 22.09.2001.

In short, case of the prosecution is that on 26.02.1994, the S.I. of Excise, Puri Sadar searched the house of the accused situated at Sunapada (Hadiabandha) and recovered one plastic Jar containing four litres of I.D. liquor and six earthen pots, each containing 20 litres of fermented ''gurh'' wash. The Excise Officer conducted blue litmus paper test and hydrometer test, seized the recovered articles, collected sample from the same and placed the prosecution report against the accused u/s 47(a) and (f) of the Bihar and Orissa Excise Act, 1947 (hereinafter referred to as the "Act"). In course of trial, the defence took the plea of denial.

Prosecution has examined three witnesses on its behalf, whereas defence has examined none.

Learned trial Court held that the prosecution has proved its case beyond reasonable doubt and therefore he convicted the petitioner for the offence u/s 47(a) and (f) of the Act and sentenced him to rigorous imprisonment for six months and to pay fine of Rs. 500/-, in default to further undergo simple imprisonment for one month. Such conviction was challenged before the learned Sessions Judge, Puri in the aforesaid appeal, when the appeal was also dismissed. Such concurrent findings have been assailed in this Revision.

Learned Counsel for the petitioner mainly argued on absence of any chemical examination report in this case. He also submitted that appreciation of evidence of the learned lower Court is perverse and therefore it requires interference of the revisional Court. Learned Addl. Standing Counsel supported the findings recorded by the trial Court and prayed to dismiss the revision.

It is now settled by a catena of decisions that chemical examination is not sine qua non for conviction u/s 47 of the Act. Even the evidence of an experienced Excise Officer is sufficient to establish the nature of the liquor and is sufficient to hold whether the seized liquors is I.D. liquor or not. Similar view has been taken by this Court in Subas Rout and Anr. v. State of Orissa (2000) 18 O.C.R. 438. In that case also relying upon the evidence of the Investigating Officer, who had departmental experience, the Court held that evidence of litmus paper test and sykes hydrometer test are sufficient to establish the case of the prosecution. In this case also, an experienced Excise Officer conducted hydrometer test and litumus paper test and has come to a conclusion that the seized liquor was the I.D. liquor. So on that count, the prosecution case cannot be rejected.

The second point, on which the learned Counsel for the petitioner very emphatically placed reliance, is the fact that the only independent witness (P.W.1) does not support the case of the prosecution. In fact, he admits his signature on the seizure list but do not state about the recovery of the contraband articles from the possession of the accused. The departmental witnesses i.e. P.Ws.2 and 3, however, speak that the seized articles were recovered from the house of the accused. Whenever any article is seized from the house of the petitioner, it is for the prosecution to establish that such contraband articles were in conscious and exclusive possession of the petitioner. In this case, there is no iota of evidence regarding the sole and exclusive possession of the petitioner of the contraband article. In fact, there is no independent evidence regarding his residence in that house. Secondly, whenever there were other adult members in that house, the prosecution must exclude the probability of such possession by those other inmates of the house and prove that the accused was, in fact, in exclusive and conscious possession of the contraband articles. In this case, such evidence is completely lacking and, therefore, it has caused miscarriage of justice. Hence, it is necessary to interfere with the concurrent findings.

In the result, the revision succeeds and judgment passed by the learned J.M.S.C, Puri, which has been confirmed by the learned Sessions Judge, Puri is hereby set aside.