Orissa High Court
Bandhana Khadia 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. 25 of 2006
An application under Section 401 Cr.P.C. read with Section 397 of
Cr.P.C. arising out of the order dated 27.08.2005 passed by the learned
2nd Adhoc Addl. Sessions Judge, Sundargarh in Criminal Appeal No.
38/62 of 2005 and the judgment and order dated 21.06.2005 of the
learned Judicial Magistrate First Class, Sundargarh in 2(a) C.C. No. 364
of 2001 (Trial No. 292 of 2005).
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Bandhana Khadia ...... Petitioner
-versus-
State of Orissa ...... Opp. Party
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For Petitioner : Mr. Biswajit Nayak, Advocate
on behalf of Mr. A.P. Bose, 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 401 read with Section 397
of the Code of Criminal Procedure has been filed by the petitioner
challenging the judgment and order dated 27.08.2005 passed in
Criminal Appeal No. 38/62 of 2005 by the learned 2 nd Adhoc
Additional Sessions Judge, Sundargarh confirming the judgment
and order passed in 2(a) C.C. No. 364 of 2001 (Trial No. 292 of
2005) by the Judicial Magistrate First Class, Sundargarh on
21.06.2005 convicting the petitioner for commission of the offence
under Section 47(f) of the Bihar and Orissa Excise Act and
sentencing him to undergo S.I. for two years and to pay a fine of
Rs.5000/-, in default to undergo S.I. for three months. The period
of U.T.P. if any had been directed be set off against the substantive
sentence.
PROSECUTION CASE
2. The prosecution allegation in brief is that on 27.04.2001
the S.I. of Excise, Sadar, Sundargarh in-charge of Ujalpur searched
the house of the petitioner and recovered two earthen pots each
containing 30 kgs. of fermented mohua (in short "FM") wash and
one earthen steel head. He tested the wash and seized the same
along with the apparatus and arrived at a conclusion that those
were kept for manufacturing I.D. liquor and on completion of the
enquiry, the said S.I. submitted prosecution report against the
petitioner for the offence under Section 47(f) of the Bihar and
Orissa Excise Act.
DEFENCE PLEA
3. The plea of the defence was one of complete denial and
false implication.
WITNESSES AND EXHIBITS
4. In order to prove its case, the prosecution examined four
witnesses. P.W.1 Rohit Kumar Mahanandia is the A.S.I of Excise,
P.W.2 Somnath Nandia is the excise constable, P.W.3 Gurj Khadia
is the independent witness to the seizure and P.W.4 Rahas Bihari
Patra is the S.I. of Excise. No witness was examined on behalf of
the defence. The prosecution exhibited only one document, the
seizure list. The defence did not rely on any document.
P.W.1 Rohit Kumar Mahanandia was the ASI of Excise.
He has stated that on 27.04.2001 he along with S.I. of Excise
(P.W.4) went to Nuadihi on duty and the S.I. searched the house of
the appellant and recovered two earthen pots each containing 30
kg. of Mahua wash and one steel head smelling of liquor from the
appellant. He tested it by blue litmus paper which turned red,
measured the wash and seized the same. He collected sample of the
Mahua wash in a bottle and destroyed the rest of the Mahua wash
with the steel head, at the spot.
P.W.2 Somnath Nandia was the Excise Constable. He
has stated that he was a member of the raiding party. He has
supported the version of P.W.4 and his evidence is almost identical
to that of P.W.1.
P.W.3 Gurj Khadia is the independent witness to the
seizure and did not support the prosecution case.
P.W.4 Rahas Bihari Patra was the Sub Inspector of
Excise. He has stated that on 27.04.2001, at 9.00 a.m., he along
with P.W.1 and P.W.2 searched the house of the petitioner and
recovered two earthen pots each containing 30 kgs. of F.M. wash
and one earthen steel head. He tested the recovered wash by blue
litmus paper which turned red. He seized the articles and kept a
sample of the Mahua wash and destroyed the rest at the spot. From
his 18 years of service experience, distillery training he knew it as
F.M. wash and the apparatus which were kept for manufacture of
I.D. liquor. As the petitioner failed to produce any authority for
possession of the articles, he seized the said articles from the
petitioner vide seizure list Ext.1.
TRIAL COURT JUDGMENT
5. The learned Trial Court after considering a decision
reported in OCR (2000) Vol-18 438, wherein it is held that
"evidence of litmus paper test and hydrometers test conducted by a
witness having departmental experience and distillery training
cannot be discredited even in absence of chemical test of the seized
substance", held that P.W.4 having experience of 18 years coupled
with distillery training from which it can easily be inferred that he
is an expert witness on the subject. It also found that his evidence
is not damaged by the defence during cross-examination and
rejected the contention of defence and held that the petitioner was
in possession of the aforesaid FM wash and other apparatus which
were meant for manufacture of I.D. liquor and convicted him
commission of offence under Section 47(f) of the Bihar and Orissa
Excise Act.
APPELLATE COURT JUDGMENT
6. After considering the evidence of the witnesses, learned
Appellate Court found that the evidence of the official witnesses
regarding search and seizure and testing was consistent and there
was no contradiction and hence it could be safely relied upon
without any independent corroboration. As the house consisted of
one room and only the petitioner was present, failure of the
prosecution to ascertain the actual owner does not affect the
prosecution case. As no suggestion was given to P.W.4 that he did
not have service experience or distillery training, there was no
reason to disbelieve his version merely because he did not produce
supporting documents. It confirmed the conviction of the petitioner
and dismissed Criminal Appeal No. 38/62 of 2005. Taking into
account the nature and the gravity of the offence as well as its
impact on the society at large, the learned Appellate Court refused
to extend the benefit of the provisions of the Probation of
Offenders' Act to the petitioner. It also found that the sentence
imposed by the learned Magistrate appeared to be proportionate to
the nature and the gravity of the offence and did not interfere with it.
SUBMISSIONS
7. Mr. Biswajit Nayak, learned counsel appearing on behalf
the petitioner submitted that both the Courts below have failed to
appreciate and analyze the evidence of P.W.3 and P.W.1, and
notice the clear contradiction between their statements and the
statements of P.W.2 and P.W.4, P.W. 3 has not supported the
version of the P.Ws. 1, 2 and 4. P.Ws. 1, 2 and 4 have not proved
the ownership of the house or the occupants of the house where the
seizure had allegedly been made. Law is well settled that the onus
is on the prosecution to prove the conscious and exclusive
possession of the accused over the seized articles. But in the instant
case the prosecution has failed to discharge this onus. He has
further submitted that the Courts below have come to an erroneous
finding and wrong conclusion that the recovery of the Mahua wash
and the apparatus, were made from the conscious physical
possession of the petitioner. As the onus was on the prosecution to
prove exclusive possession of the seized material of the petitioner,
the Courts below should not have disbelieved the plea of the
petitioner on the ground that P.Ws. 1, 2 and 4 was not cross-
examined. Moreover, the charge was defective and prejudiced the
defence in the trial.
He has relied on the following decisions in support of his
submission:-
(i) In the case of Aparti Sahu & Another vs. State of
Orissa: 2002 (II) OLR 148.
(ii) In the case of Raghunath Sahoo (in Criminal Revision
No.108 of 1995) and Satrughna Sahoo (in Criminal Revision
No.61 of 1995) vs. State of Orissa : 2002 (II) OLR 490.
8. Mr. M.R. Mishra, learned Addl. Standing Counsel for the
State vehemently opposed the contentions of the learned counsel
for the petitioner and submitted that the learned trial Court has
rightly relied on the evidence of the official witnesses P.W.1 and
P.W.4. He has submitted that a conviction can be based on the
evidence of official witnesses, where they have no reason to make
false allegations against the accused. He has also submitted that
even in the absence of a chemical examination, on the basis of
physical tests conducted by an experienced officer who has
undergone distillery training, a conviction can be maintained. In
support of his submissions, he relied on the following decisions:-
(i) G. Sahukar vs. State of Orissa reported in (2000) 19 OCR
(SC) 688,
(ii) Sathyan vs. State of Kerala in Criminal Appeal No. 2363 of
2023 arising out of SLP (Criminal) No. 9710 of 2023 : Diary No.
16317 of 2022 delivered on 11th August, 2023 and
(iii) Tahir vs. State (Delhi) reported in (1996) 3 Supreme Court
Cases 338.
JUDICIAL PRONOUNCEMENT
9. In the case of Aparti Sahu (supra), the prosecution case
was based on evidence of official witnesses. This Court held that
the factum of recovery is not corroborated by independent
witnesses. Recovery of I.D. liquor from conscious possession of
petitioners are doubtful, for which and the order of conviction and
sentence set aside.
In the case of Raghunath Sahoo and Satrughna Sahoo
(supra), the prosecution has lead unequivocal evidence that the
officer who has seized the liquid has got special training and post
experience so that his opinion can be regarded as the opinion of an
expert. Expert evidence of excise officer who intends to prove the
seized articles to be I.D. liquor must have past experience as well
as special training so as to bring his evidence within the fold of
'expert evidence'.
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.
In the case of Sathyan (supra), the Kerala High Court
refused to disbelieve the testimony of the official witnesses as they
had no enmity with the accused and confirmed the conviction of
the petitioner under Section 8 (1) and 8 (2) of the Abkari Act, but
reduced his sentence.
In the case of Tahir (supra), the appellant had been
convicted for commission of offence under Section 5 of Terrorists
and Disruptive Activities (Prevention) Act, 1987. The Supreme
Court relied on the evidence of the official witnesses and dismissed
the appeal.
ANALYSIS AND CONCLUSION
10. I have gone through the two impugned judgments, the
evidence of the P.Ws. and the provision of Section 47(f) of the Bihar
and Orissa Excise Act and the decisions relied upon by the counsel.
11. As the defence has not been able to show that the official
witnesses - P.W.1, P.W.2 and P.W.4 had any enmity with the
petitioner or any reason to falsely implicate him, I am not inclined to
accept the contention of the learned counsel for the petitioner that
their evidence regarding search and seizure is to be disbelieved. I am
also not prepared to disbelieve that P.W.4 did not conduct blue
litmus paper test or was an experienced officer and had undergone
distillery training.
12. But it is the admitted case of the prosecution that
chemical examination of the alleged fermented mahua wash seized
by P.W.4 has not been conducted.
13. This is surprising as all the three official witnesses have
stated that sample of the mahua was kept by P.W.4 in a bottle before
he destroyed the mahua wash at the spot. No explanation has been
given as to why the sample of the mahua wash which had been kept
in a bottle by P.W.4, had not been sent for chemical examination.
14. It is possible that an experienced Excise Officer with the
right kind of training can identify spurious liquor, I.D. liquor or
mahua wash by sight and smell. The exact nature of training
undergone by P.W.4 has not been proved.
15. Blue litmus paper test is not a conclusive tests to prove if
a particular substance if I.D liquor or even mahua wash. This is
because litmus paper test is for measuring the pH factor of a
substance - whether it is acidic or alkaline ? If the blue litmus paper
turns red , it indicates that the substance is acidic . It is one of tests
but cannot be a conclusive test as the pH factor of a substance will
only be suggestive of the identity of the substance but cannot prove
its identity beyond reasonable doubt. Similarly smell or appearance
of a substance can be suggestive but cannot be conclusive.
16. In my opinion, a chemical examination of the substance
would have proved the case of the prosecution beyond reasonable
doubt. Therefore in the absence of a chemical test, I am of the
considered view that the petitioner deserves to be given the benefit
of doubt.
17. In view of the above discussion, decisions and the facts
of the case, I am inclined to set aside the conviction of the
petitioner under Section 47 (fa) of the Bihar and Orissa Excise Act,
giving him the benefit of doubt.
18. The Criminal revision is allowed.
19. The judgment and order dated 27.08.2005 passed in
Criminal Appeal No. 38/62 of 2005 by the learned 2nd Adhoc
Additional Sessions Judge, Sundargarh and the judgment and order
dated 21.06.2005 passed by the learned J.M.F.C., Sundargarh in
2(a) C.C. No. 364 of 2001 (Trial No. 292 of 2005) are set aside.
20. As the petitioner is stated to be on bail, his bail bonds are
discharged.
21. 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 May, 2025.
S.K. Behera, Senior Stenographer
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 05-Jun-2025 19:24:38
