Orissa High Court
2004) vs State Of Orissa ...... Opp. Party on 30 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 48 of 2006
An application under Section 401 Cr.P.C. 1973 arising out of the
judgment and order dated 19.07.2005 passed by the learned 2nd Adhoc
Addl. Sessions Judge, Sundargarh in Criminal Appeal No. 6/48 of 2005
and the judgment and order dated 21.02.2005 passed by the learned
J.M.F.C., Sundargarh in 2(a) C.C. No. 333 of 2003 (Trial No. 109 of
2004).
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Upendra Kumar @ Kumar ...... Petitioner
-versus-
State of Orissa ...... Opp. Party
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For Petitioner : Mr. G.N. Sahoo, Adv. on behalf of
Mr. Ajaya Kumar Nanda, Adv.
For Opp. Party : Mr. Manoranjan Mishra, A.S.C.
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CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
30.05.2025
Savitri Ratho, J. This application under Section 401 of the Code of
Criminal Procedure has been filed challenging the judgment dated
19.07.2005 passed by the learned 2nd Adhoc Addl. Sessions Judge,
Sundargarh in Criminal Appeal No. 6/48 of 2005, confirming the
conviction of the petitioner for commission of offence under
Section 47(a) of the Bihar and Orissa Excise Act and sentenced to
undergo simple imprisonment for a period of two years and to pay
a fine of Rs.5000/-, in default to undergo further simple
imprisonment for a period of three months by the judgment and
order dated 21.02.2005 passed by the learned J.M.F.C., Sundargarh
in 2(a) C.C. No. 333 of 2003 (Trial No. 109 of 2004).
PROSECUTION CASE
2. The prosecution allegation in brief is that on 08.08.2003
at about 3.00 p.m. the Sub-Inspector of Excise in course of
patrolling along with staff, conducted a raid in the residential house
of the petitioner and on search recovered one plastic jerrycan
containing 10 liters of O.S. liquor (mohuli). The Sub-Inspector
tested the seized liquor by blue litmus paper which turned red and
from his departmental experience and training he came to a
conclusion that the recovered substance was O.S. liquor. As the
petitioner failed to produce any authority in support of his
possession of the seized liquor and for which the sub-Inspector
prepared a seizure list wherein he obtained signature of the
witnesses and the petitioner and submitted prosecution report
against the petitioner to face the trial under Section 47(a) of Bihar
and Orissa Excise Act.
DEFENCE PLEA
3. The defence plea was one of complete denial and false
implication.
WITNESSES
4. During course of trial, in order to prove its case, the
prosecution examined two witnesses. P.W.1, Rahas Bihari Patra, is
the S.I. of Excise and P.W.2, Babulu Das, is the excise constable.
P.W.1 the S.I. of Excise along with P.W.2 Excise
Constable, searched the house of accused on 08.08.2003 and
recovered one plastic jerry bag containing 10 litres of O.S. liquor
vide seizure list Ext.1. P.W.1 proved the seizure list and his
signature vide Ext.1/1. It is forthcoming from the evidence of
P.W.1` that he tested the liquor by blue litmus paper which turned
red and from his departmental experience and distillery training, he
came to know that the same was O.S. liquor. The evidence of
P.Ws. 1 and 2, it is clear that on 08.08.2003, they searched the
house of petitioner and recovered some liquor.
5. The prosecution exhibited one exhibit. Ext.1 is the
seizure list.
6. No witnesses have been examined on behalf of the
defence.
JUDGMENT OF TRIAL COURT
7. The learned Trial Court held his opinion that the liquor
in question is O.S. liquor and it was under the occupation of other
adult members, the said liquor cannot be said as recovered from the
exclusive possession of the petitioner. In this context, P.Ws. 1 and
2 have categorically stated that the liquor was recovered from the
possession of the petitioner. In cross-examination P.W.2 has stated
that the father of petitioner was absent at the time of search and
seizure. So when the petitioner was alone in the house under
search, he is answerable as to how could be come to possess such
liquor which was kept in his house. The accused has not shifted his
burden. There is no evidence on record as to why the official
witnesses would depose falsehood against the petitioner when there
is no animosity with them. It can be conclusively held that the
liquor was recovered and seized from the exclusive conscious
possession of the petitioner.
JUDGMENT OF APPELLATE COURT
8. The learned Appellate Court stated that law is also fairly
well settled that the opinion of any person specially skilled in the
relevant science or art, it acceptable as expert evidence. As P.W.1
has deposed that from his departmental experience and distillery
training, he could know that the liquid substance recovered from
the house of the petitioner was O.S. liquor and no questions having
been put to P.W.1 during his cross-examination, regarding his
departmental experience and expertise in the field. The opinion of
P.W.1 that the recovered liquid substance was O.S. liquor can be
accepted as expert evidence, which is admissible under Section 45
of the Indian Evidence Act. Non-examination of the
recovered/seized substance by a chemical examiner, does not
vitiate the finding of the learned Court below on this score. So far
as the applicability of the provisions of the Probation of Offenders
Act is concerned, as such, offence is rampant in that part of the
State and consumption of country made liquor on many occasions
has given rise to more serious offences like death and the social life
and economic condition of the local people who mostly belong to
scheduled tribes have been adversely affected due to the
unauthorized preparation and sale of country liquor, so no leniency
should be shown to the persons involved in the offence of the
present nature as that would send a wrong signal to the society and
encourage others to indulge in similar unlawful activities. The
learned trial Court has not committed any illegality by adopting the
deterrent theory of penology and declining to extend the
benevolent provisions of the Probation of Offenders Act based on
the reformative theory in favour of the appellant and the sentence
imposed by the learned trial Court appears to be just and
proportionate to the offence committed by the petitioner.
SUBMISSIONS
9. Mr. G.N. Sahoo, learned counsel appearing on behalf of
the petitioner has submitted that after the judgment was delivered
in the criminal appeal, the petitioner was arrested on 03.01.2006
and remained in custody till he was released on bail pursuant to
order dated 04.05.2006 passed by this Court in this Criminal
Revision.
Mr. Sahoo, learned counsel submitted that the impugned
judgments of the Courts below convicting the petitioner solely on
the basis of evidence of the official witnesses i.e. P.Ws. 1 and 2,
without examining any independent witnesses and without
assigning any reason for not examining any independent witnesses,
are liable to be set aside. He further submits that there is no
evidence as to the basis of the information to conduct the raid in
the house of the petitioner nor has the personal diary of P.W.1
entering any such information or clue regarding illegal
manufacture or of possession of O.S. liquor by the petitioner in his
house, the action of the prosecution is completely illegal and
malafide and done in order to rope in the petitioner in a false case
when there is no support of any independent witnesses to such
action of the prosecution, and when the alleged recovery was made
from a house in occupation of a joint family and involved other
adult members, the findings of the Courts below that the alleged
recovery was made that from the conscious and exclusive
possession of the petitioner, is completely illegal and
unsustainable. He has submitted that the alleged seized substance is
O.S. liquor has not been sent for chemical examination. P.W.1, the
sub-inspector of Excise having not proved his departmental
training and experience certificate, his evidence could not have
been relied upon to come for conclusion that the seized substance
was O.S. liquor. So the impugned judgments of conviction and
sentence basing on such inadmissible evidence, are liable for
interfere. He also submits that the alleged recovery and seizure
having not been proved by the prosecution, the learned Courts
below ought to have discarded the prosecution case more so when
the seized substance was not produced in the Court. He submitted
that the learned Courts below have gone wrong in not appreciating
the fact that the prosecution has to prove its case beyond all
reasonable doubt against the petitioner and in the instant case the
prosecution having failed to examine the independent eye
witnesses, not having sent the seized substance for chemical
examination, not proving the departmental training of the S.I. of
Excise (P.W.1), not producing the seized materials in Court, not
establishing that the seized substance was O.S. liquor and not
proving the ownership of the house which was in joint possession
of other adult members, the impugned judgments of conviction and
sentence of the Courts below are liable to be set aside. He relied on
the following decisions in support of his submission :-
(i) Aparti Sahu & Another vs. State of Orissa, reported
in 2002 (II) OLR 148.
(ii) Jhadia Naik vs. The State reported in (2010) II OCR
572.
10. Mr. Manoranjan Mishra, learned Addl. Standing Counsel
submitted that no interference is required in the two judgments as
the evidence of the S.I. of Excise that he had requisite qualification
and has not been challenged. A conviction can be based on the
testimony of the official witness as they have no axe to grant with
the accused so as to falsely accuse him. He relies on the decision of
the Supreme Court in the case of G. Sahukar vs. State of Orissa
reported in (2000) 19 OCR (SC) 688.
JUDICIAL PRONOUNCEMENT
11. In the case of Aparti Sahu (supra), this Court has held
that where prosecution case is based on official and seizure
witnesses, the factum of recovery is not corroborated by
independent witnesses, recovery of I.D. liquor from conscious
possession of petitioner is doubtful.
In the case of Jhadia Naik (supra), this Court has held as
follows:-
"4. P.W 2 has not supported the prosecution. He testified
that nothing was seized from the petitioner in his
presence by the excise officials. The conviction of the
petitioner is based solely on the evidence of the two
officials witnesses, P.Ws 1 and 3. Law is well settled that
conviction can be based on the evidence of official
witnesses, if the same is found to be consistent and
credible. Even if independence witnesses do not support
the prosecution the evidence of official witnesses can be
assessed and accepted.
5. However, it appears from the evidence of P.Ws 1 and
2 that P.W 1 conducted blue litmus test paper and
hydrometer test of the contents of the jerrican recovered
from the possession of the petitioner. Neither the seized
jerrican containing liquor nor blue litmus used and
hydrometer chart was prepared by P.W 1 were produced
in the Court. Therefore, the entire case of the
prosecution depends upon oral testimonies of P.Ws 1 and
2. P.W 1 deposed in cross-examination that hydrometer
chart was not submitted with the P.R and that he did not
produce the seized article in Court. P.W 3 testified that
he cannot say what happened to the blue litmus paper.
Therefore, obviously, the prosecution has conducted the
enquiry in a most perfunctory manner. Prosecution has
not come up with any explanation or justification for
non-production of the seized article. Also blue litmus
paper and hydrometer chart have been withheld from
Court without any explanation.
6. In Chandramani Sabar v. State (1998) 14 OCR 265
and S. Dasarathi Reddy v. State, 1998 (1) OLR 315 :
(1998) 14 OCR 442, it has been observed that in case of
this nature, where substantive sentence of imprisonment
is compulsory after conviction, a heavy duty is cast upon
the prosecution to establish the case beyond any
reasonable doubt. In both the decisions it was held that
non-examination of seized article by Chemical Analyst
affects prosecution case to have been recovered I.D
liquor. In Kunjabehari Behera v. State of Orissa (1960)
10 OCR 525, it was held that in absence of hydrometer
chart it would be unsafe to rely on the testimony of the
witness to conclude that it was illicit liquor which was
seized from the possession of the accused. It has further
been held in the aforesaid decision upon reference to the
decision in Suma Das v. State of Orissa : 1993 (2) OLR
392 : 1993 (2) OLR 392 that blue litmus test only shows
that liquid to be acidic and no more. So far as the
hydrometer test is concerned, it is a test only to show the
density of the liquid, the technical excise manual of J.S
Pillary shows that the strength of diluted liquor raised
from 75 degree to 73 degree up and the average may be
taken at about 85 degree. While illicitly liquor may have
a particular density or may have a range of density, a
mere fact that the seized article when put to hydrometer
answers the density of illicitly distilled liquor or fits into
the range of density of illicitly distilled liquor, would by
itself not unmistakably show that the liquid is illicitly
distilled liquor. It is possible to conceive that other liquid
may have also the same density. In Suman Das (supra) it
was held that combined effect of blue litmus and
hydrometer tests would show that the liquid is acidic in
nature and the density is similar to that of illicitly
distilled liquor.
7. In the present case, though P.W 1 stated to have
undertaken blue litmus as well as hydrometer tests, his
evidence to that effect is not supported by production of
blue litmus and hydrometer chart. The seized article has
also not been produced. There is no evidence on record
to show that P.W 1 had experience or expertise to find
out whether any liquid was I.D liquor or not. In view of
principles laid down in the aforesaid decisions it is found
that evidence adduced by the prosecution does not
constitute a firm basis to sustain the conviction of the
petitioner under section 47(a) of the Bihar & Orissa
Excise Act."
This Court in the case of S. Dasarathi Reddy vs. State :
1998 (II) OLR 315 : 2000 (19) OCR 688 (supra) has held as
follows :
...."5. Here in this case, it is not disputed that no
chemical analysis was done. What was done by the
Excise Sub- Inspector was litmus paper test and
hydrometer test. It is not explained as to why the seized
liquor was not sent to the Chemical Examiner for
examination. He, however, claims that he had training in
distillery and he had 11 years experience at his credit in
the Department. Besides this bald statement there is
nothing to show that he had actually received training in
a Branch of the Excise Department which is directly
connected with the testing of liquor. Such a bald
statement without any particulars of training or type of
service does not make him an expert witness. It may be
observed that in case of this nature, where substantive
sentence of imprisonment is compulsory after conviction,
a heavy duty is cast upon the prosecution to establish
beyond any reasonable doubt that what was recovered
from the accused was illicit liquor. Here in this case, the
evidence is lacking with regard to it. This being the
position, it seems that the order of conviction and
sentence passed by the trial Court and affirmed by the
superior Court cannot be sustained."...
In the case of Simanchal Choudhury vs. State of Orissa
: 2005 (II)OLR 401 (supra), this Court has held as follows :-
..."5. I have perused the judgments of both the Courts
below and the evidence adduced by the prosecution
witnesses. I find that even though the prosecution has
alleged that the petitioner was selling I.D. liquor when
the seizure was effected, strangely, no independent
witnesses to the search and seizure have been produced
by the prosecution. If the allegation of the prosecution
regarding the act of selling I.D. liquor is accepted, the
same would presuppose that some person or persons
was/were either purchasing or purchasing and
consuming the liquor sold by the accused. But, neither
statement of any such person has been recorded nor any
such person has been produced as prosecution witness. It
is no doubt true that the evidence of official witness can
be relied upon in a given case.
As because P.W.1 was working as a constable in the
Excise Department, the same is not a ground to
disbelieve his testimony. It is revealed from the record
that the liquid seized was never subjected to chemical
test. Except the bare statement of P.W.2 that he tested the
seized liquid by litmus paper which turned red and also
measured the density of the said liquid by hydrometer
test, that does not prove conclusively that the liquid
seized was I.D. liquor. Blue litmus turning red on being
introduced to a liquid only goes to show that the nature
of liquid is acidic and no more. So far as the hydrometer
test is concerned, it is a test to measure the density of
liquid and possibility of any other liquid (solution)
having the same density cannot be ruled out. The
evidence of P.W.2 that by his experience of long twenty
years of service in the department, he has acquired an
expert knowledge in identifying liquor, is of no help to
the prosecution. As already held by this Court in various
decisions, an Excise Officer bearing some experience due
to his long service cannot be termed as an expert in
terms of Section 45 of the Evidence Act. Further, in the
instant case, identification of the liquid seized by P.W.2
as I.D. liquor does not confirm to the test as required to
be proved to bring a case under Section 47(a) of the
Bihar and Orissa Excise Act, 1915. (See Suma Das v.
State of Orissa, 1993 (II) OLR 392 : 1993 (6) OCR 612,
Bisam Harijan v. State of Orissa, 1994 (I) OLR 516 : 77
(1994) CLT 944 and Biswanath Sahoo v. State, 2002 (I)
OLR 316 : 93 (2002) CLT 327), I find, in the present
case that the seized liquor was never produced before the
trial Court which is another aspect, which goes against
the case of the prosecution."...
In the case of G. Sahukar (supra), this Court has held as
follows:-
"2. The Counsel for the appellant, however, wanted to
raise a contention that the entire proceeding is vitiated
as the officer, who investigated into the offence, did not
have the authority in question. This point has not been
urged in the forums below and we find that under Section
77(2) of the Act, the State Government is empowered to
issue notification authorising different categories of
officers for conducting investigation in respect of
different offences. Since the point in question had not
been raised in forums below, we cannot entertain and
decide as to whether a particular officer who has
investigated into an offence, did have the authority to
investigate or not. The learned Counsel for the appellant
also raised a contention that the possession of the
accused is not one of conscious possession. The question
whether the intoxicant was recovered from the
possession of the accused is a question of fact and when
all the forums below have concurrently recorded a
finding that the accused was in possession of the same, it
would not be appropriate for this Court to interfere with
the same. Another contention that had been raised by the
learned Counsel for the appellant is that there had been
no proper chemical test to identify the substance to be an
I.D. liquor. This is factually incorrect, inasmuch as
several tests had been held and that apart, even the
Excise Authority by mere smell would be competent to
decide whether the article is a liquor or not."
ANALYSIS AND CONCLUSION
12. No documents or details of the departmental training of
the S.I. of Excise (P.W.1) has not been proved. The alleged O.S.
liquor has not been sent for chemical examination.
13. I am not inclined to accept the submission of the learned
counsel for the petitioner that false allegations have made against
the petitioner as the seized materials have not been produced in
Court, the seized substance has not been sent for chemical
examination and the independent witness has not supported the
prosecution case.
14. But in view of the above discussion, decisions and the
facts of the case, I am inclined to set aside the conviction of the
petitioner by giving him the benefit of doubt as in the absence of a
chemical test, in my considered it would be unsafe to convict the
petitioner by relying on the opinion of P.W.1 which is on the basis
of blue litmus paper and his departmental and distillery training,
that the substance seized was O.S. Liquor.
15. The conviction of the petitioner under Section 47(a) of
the Bihar and Orissa Excise Act by the learned J.M.F.C.
Sundargarh in 2(a) C.C. No 333 of 2003 (Trial No. 109 of 2004),
confirmed by the learned 2nd Adhoc Additional Sessions Judge,
Sundargarh in Criminal Appeal No. 6/48 of 2005 is therefore set
aside.
16. The Criminal Revision is accordingly allowed.
17. As the petitioner is stated to be on bail, his bail bonds are
discharged.
18. The trial Court records be returned forthwith to the
learned trial court with a copy of this judgment.
...........................
(Savitri Ratho)
Judge
Orissa High Court, Cuttack.
Dated, the 30th May, 2025.
S.K. Behera, Sr. Stenographer.
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 01-Jun-2025 22:16:42
