Orissa High Court
Madhab Das @ Madhab Chandra Das vs State Of Orissa ..... Opp. Party on 30 May, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 203 of 2006
An application under Section 397 read with Section 401 of the Code of
Criminal Procedure challenging the judgment and order dated 03.11.2000
(27.11.2000) of learned Judicial Magistrate First Class, Jajpur Road in
2(a) C.C. Case No.18 of 1991 (Trial No. 176 of 1991) and the judgment
and order dated 08.03.2006 of learned Adhoc Addl. Sessions Judge (Fast
Track Court), Jajpur in Criminal Appeal No. 22 of 2000.
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Madhab Das @ Madhab Chandra Das ..... Petitioner
-versus-
State of Orissa ..... Opp. Party
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For Petitioner : Mr. Ratnakar Samantsinghar, Adv.
For Opp. Party : Mr. M.R. 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 397 read with Section 401
of the Code of Criminal Procedure has been filed challenging the
judgment and order dated 08.03.2006 passed in Criminal Appeal
No. 22 of 2000 by the learned Adhoc Addl. Sessions Judge (Fast
Track Court), Jajpur confirming the judgment and order dated
03.11.2000 (27.11.2000) passed by the learned Judicial Magistrate
First Class, Jajpur Road in 2(a) C.C. Case No.18 of 1991 (Trial No.
176 of 1991), convicting the petitioner under Section 47(a) of the
Bihar and Orissa Excise Act and sentencing him to undergo R.I. for
six months and to pay a fine of Rs.500/-, in default to undergo R.I.
for 15 days by judgment.
PROSECUTION CASE
2. The prosecution allegation in brief is that on 22.01.1991
at about 8.30 a.m., while P.W.2, the S.I. of Excise Dolipur was
performing the patrolling duty at Laxmi Bazar, he found the
petitioner was coming on the road holding a plastic jerrican
containing ten litres of I.D. liquor. He measured it and tested it
with blue litmus paper which turned red and hydrometer test. From
his service experience and the tests, he confirmed that it was I.D.
liquor. Thereafter he seized the liquor and prepared seizure list at
the spot in presence of the witnesses. He also supplied a copy of
seizure list to the petitioner. He arrested the petitioner and released
the petitioner on bail and after completion of investigation the S.I.
of Excise submitted P.R. against the petitioner under Section 47(a)
of the Bihar and Orissa Excise Act.
DEFENCE PLEA
3. The plea of the petitioner was one of the complete
denial.
WITNESSES AND EXHIBITS
4. To prove its case, the prosecution examined two
witnesses and proved the seizure list as Ext.1. No witness was
examined by the defence, nor any document exhibited.
P.W.1 Bishnu Ch. Swain is the independent witness. He
did not support the prosecution case. He stated that he does not
know anything about the seizure of liquor from the petitioner.
P.W.2 Riaj Ahmed Beg is the Sub-Inspector of Excise as
well as the Investigating Officer of the case and he has stated that
he has tested the I.D. liquor by using hydrometer test and blue
litmus paper and proved that the strength of liquor was 55 degree
U.P. He has produced the plastic jerrican in Court and it is marked
as M.O.1. During cross-examination, he admitted that he has not
sent the liquor for chemical test. He stated that on account of
experience of 5 years in excise service he was confirmed that the
liquor was I.D. liquor.
TRIAL COURT JUDGMENT
5. After analyzing the evidence of the witnesses on record,
the learned trial Court stated that this type of offence is rampant
and now a days the teen agers were taking liquor for which they are
committing many higher offences in our society. It declined to
released the accused under the Probation of Offenders Act,
observing that if the accused was released under the P.O. Act, it
will encourage others to commit such type of offence. Considering
the age of the convict as well as the quantity of liquor seized from
his possession, convicted him and sentenced him to imprisonment
for six months R.I. and to pay fine Rs.500/-, in default to undergo
R.I. for 15 days.
APPELATE COURT JUDGMENT
6. The learned Appellate Court dismissed the appeal
confirming the conviction and sentence of the petitioner. It referred
to the decision in the case of Bharat Sahu vs. Stae of Orissa :
1990 (70) CLT 47, wherein I.D. liquor had not been put to
chemical analysis, but it was held that blue litmus paper test and
hydrometer test were sufficient to establish that I.D. liquor was
recovered from the possession of the petitioner. On the basis of
service experience of P.W.2 and other tests conducted by him, even
if the substance had not been sent for chemical examination, it can
safely be inferred that I.D. liquor was recovered from the conscious
possession of the petitioner. The Court did not find any reason to
take a view contrary to that of the learned trial Court, which had
discussed all material facts as to come to a finding.
SUBMISSIONS
7. Mr. Ratnakar Samantsinghar, learned counsel for the
petitioner has submitted that both the learned Courts below have
not properly appreciated the evidence of P.W.1 who is the
independent witness to the occurrence who had denied knowledge
about the occurrence but mechanically relied upon the solitary
evidence of P.W 2 the S.I., Excise treating him as an expert. As he
does not have specialized training, he cannot be treated as expert
under Section 45 of the Indian Evidence Act. The evidence of
P.W.2 could not have been accepted in the absence materials on
record to show that he has the necessary skill and experience. It is
further submitted that it would be unsafe to convict the petitioner
on the sole evidence of P.W.2, when he has not produced
supporting materials regarding his training and experience. In
support of his submissions, he has relied on the following
decisions: -
(i) Abhimanyu Sahu vs. State of Orissa: 2010 (II) OLR 426.
(ii) Mohan Behera vs. State of Orissa reported in 2003 (I) OLR
344.
(iii) S. Dasarathi Reddy vs. State of Orissa reported in 1998 (I)
OLR 315.
8. Mr. M.R. Mishra, learned Addl. Standing Counsel for the
State has submitted that the evidence of the prosecution witnesses
would be sufficient for proving the factum of possession by the
accused and it is not necessary to conduct any chemical test to
identify the substance as I.D. liquor, inasmuch as several tests had
been conducted by the Excise Authority and by mere smell, they
are competent to decide whether the article is a liquor or not . He
relies on the following decisions in support of his submission :-
(i) Akshaya Kumar Senapati vs. State of Orissa : (2000) 19 OCR
178.
(ii) G. Sahukar vs. State of Orissa reported in (2000) 19 OCR
(SC) 688.
JUDICIAL PRONOUNCEMENTS
9. In Abhimanyu Sahu (supra), this Court has held that the
burden is on prosecution to prove its case that the seized materials
was in conscious possession and exclusive possession of the
accused. It cannot take the benefits of weakness of the defence.
The prosecution having failed to do so, the conviction of the
petitioner cannot be sustained. The prosecution under Section 47(a)
of the Bihar and Orissa Excise Act arises only when the possession
is proved. If the prosecution fails to prove beyond all reasonable
doubt that the petitioner was in conscious and exclusive possession
of the I.D. liquor, then the conviction of the accused under Section
47(a) of the Bihar and Orissa Excise Act is illegal and incorrect.
In the case of Mohan Behera (supra), this Court, has
held that if the seizure was made on the road, but no other
independent witnesses was examined who had seen the occurrence
and further the chemical test of the article seized from the accused
is not produced in the Court, then the accused cannot be convicted
under Section 47(a) of the Bihar and Orissa Excise Act.
In the case of S. Dasarathi Reddy (supra), this Court
found that no chemical examination was done, only litmus test and
hydrometer test were conducted. The person who seized the liquor
says that he had training in distillery but there is no material to
show that he was trained for testing of liquor. Hydrometer test is
not safe nor conclusive and the seized substance should have been
sent for chemical examination.
In Akshaya Kumar Senapati (supra), this Court did not
interfere with the conviction of the petitioner, holding that factum
of possession from the thatch of the petitioner had been proved by
the evidence of the prosecution witnesses. It further held that on
account of delay, the sentence imposed on the petitioner was liable
for interference as no useful purpose would be served by directing
him to serve the remaining portion of his sentence.
In the case of Bharat Sahu (supra), this Court has held
that even if the seized liquor was not put to chemical examination,
blue litmus paper test and hydrometer test are sufficient to establish
that ID Liquor was recovered.
In the case of G. Sahukar (supra), the Supreme Court
did not entertain the submission of the petitioner that the officer
who investigated the case was not authorized to do so as it had not
been raised in any of the forums below. It rejected the contention
that the I.D. liquor had not been seized from the conscious
possession of the accused as it was a finding of fact which had
been concurrently recorded by all the forums. The contention that
there was no chemical test was also rejected holding that several
tests had been conducted and the Excise authority by mere smell
would be competent to decide whether the article is liquor or not.
ANALYSIS AND CONCLUSION
10. I am not inclined to accept the submission of the learned
counsel for the petitioner that without corroboration by an
independent witness, the evidence of P.W.2 the S.I. of Excise
regarding seizure cannot be accepted, as it is the settled principle
of law that a conviction can be based on the evidence of an official
witness if his evidence is cogent and otherwise reliable , unless it is
shown that he had personal animosity against the accused or had
reason to falsely implicate him. In this case the plastic jerrican has
also been produced in Court. So the factum of seizure cannot be
disputed or disbelieved.
11. But no documents or details of the experience and
departmental training of the S.I. of Excise (P.W.2) have been
proved. P.W 2 has admitted that the seized substance has not been
sent for chemical examination. P.W.2 has stated that the blue
litmus paper turned red and hydrometer showed 55% UP. But it is
well known that the litmus paper test is to test the PH factor of a
substance - whether it is alkaline or acidic. If a blue litmus paper
turns red, that shows that the substance is acidic. A hydrometer
measures the specific gravity of a liquid. So an acidic substance
having a specific gravity of 55% does not establish that the liquid is
I.D. liquor. Hence a chemical examination will confirm that.
Therefore, I find merit in the submission of the learned counsel for
the petitioner that as the seized substance has not been sent for
chemical examination and the experience and training of P.W.2 is
not supported by documents, his conviction is liable to be set aside.
12. The conviction of the petitioner under Section 47(a) of the
Bihar and Orissa Excise Act by the learned J.M.F.C., Jajpur Road
in 2(a) C.C. Case No 18 of 1991 (Trial No. 176 of 1991),
confirmed by the learned Adhoc Addl. Sessions Judge (Fast Track
Court), Jajpur in Criminal Appeal No. 22 of 2000 is set aside.
13. The Criminal Revision is accordingly allowed.
14. As the petitioner is stated to be on bail, his bail bonds are
discharged.
15. The trial Court records be returned forthwith to the
learned trial court with a copy of this judgment.
...........................
(Savitri Ratho, J)
Orissa High Court, Cuttack.
The 30th of May, 2025.
S.K. Behera, Senior Stenographer.
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2025 20:17:19
