Orissa High Court
An Application Under Section 401 Of The ... vs State Of Orissa ...... Opp. Party on 30 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 290 of 2006
An application under Section 401 of the Code of Criminal Procedure,
1973.
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Hemanta Bhoi ...... Petitioner
-versus-
State of Orissa ...... Opp. Party
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For Petitioner : Mr. Rajendra Kumar Pradhan, Advocate
For Opp. Party : Ms. S. 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 Cr.P.C. has
been filed challenging the judgment dated 22.04.2006 passed by the
learned Additional Sessions Judge, Angul in Criminal Appeal No. 04
of 2005 confirming the judgment of the learned trial court, confirming
the conviction and sentence of the petitioner vide judgment dated
25.01.2005 passed by the learned J.M.F.C., Angul in U.I. Case No. 53
of 1996/Trial Case No. 409 of 2003 convicting the petitioner under
Section 47(a) of the Bihar and Orissa Excise Act and sentencing him to
undergo rigorous imprisonment for six months and to pay a fine of
Rs.1,000/- in default to undergo R.I. for three months more.
PROSECUTION CASE
2. The prosecution case in brief is that, on 20.10.1995 at 7.30
P.M., P.W.1- Birabara Behera, the then ASI of police attached to
Nalco Police Station while performing patrolling duty with P.W.3-
Dhaneswar Behera, constable at the road of Basala Sahi crossing,
found the petitioner carrying a big plastic jerrican containing 20 litres
of I.D. liquor. As he failed to show any authority for possessing the
liquor, it was seized by P.W.1 in presence of the witnesses and the
sample liquor was sent for chemical examination. The report revealed
that it contained 36% ethyl alcohol. On completion of enquiry, ASI
filed prosecution report against the accused.
DEFENCE PLEA
3. The plea of the defence was one of complete denial and
false implication.
WITNESSES
4. The prosecution examined three witnesses, P.W.1 Birabara
Behera is the ASI of police. P.W.2 Kulamani Bilasa is an independent
witness, who did not support the prosecution case. P.W.3 Dhaneswar
Behera is the police constable, who accompanied P.W.1 during
patrolling duty and was witness to the seizure.
5. P.W.1 Birabara Behera has stated that on 20.10.1995 at
about 7.30 P.M., while he along with P.W.3 were performing
patrolling duty at Basala Sahi crossing, they found the accused
transporting 20 liters of country made liquor in a big plastic jerrican.
As he failed to produce any document in support of such
transportation or possession, he seized the same vide Ext.1 from the
possession of the accused. He took a sample of the liquor in a small
bottle and sealed it and sent it to the District Forensic Science
Laboratory, Dhenkanal for chemical examination. The opinion report
of Ext.3 revealed that percentage of ethyl alcohol was 36%. After
completion of investigation, he submitted prosecution report. P.W.1
has admitted in his cross-examination that the extract of his tour diary
of his return journey was submitted in the Court with P.R.
P.W.2, Kulamani Bilasa is the independent witness. He did
not support the fact of seizure, but admitted to have signed on the
seizure list.
P.W.3 Dhaneswar Behera is the constable who had
accompanied P.W 1 during patrol duty and has signed on the seizure
list. He has stated about the recovery and seizure of 20 litres of
country made liquor from the petitioner.
6. The prosecution exhibited three documents. Ext.1 is the
seizure list, Ext.2 is the requisition and Ext. 3 is the Opinion report.
TRIAL COURT JUDGMENT
7. The learned trial court did not find any reason to disbelieve
the prosecution case holding that evidence of the Police ensure stay
does not always require corroboration by an independent witness. It
also accepted the opinion report Ext.3 in absence of any rebuttal
evidence. Holding that the prosecution has proved its case beyond all
reasonable doubt, it found the petitioner guilty for committing an
offence under Section 47(a) of Bihar and Orissa Excise Act and
convicted him thereunder. It did consider it proper to give him any
benefit under the Probation of the Offenders Act and sentenced him
to undergo rigorous imprisonment for six months and to pay a fine of
Rs.1,000/- (rupees one thousand) in default to undergo R.I. for three
months more.
APPELLATE COURT JUDGMENT
8. The learned Appellate Court held that P.W.2 had admitted
his signature on the seizure list in which the details of seizure were
mentioned and being a literate man, he must have been aware of its
contents. It also found that the opinion report Ext.3 had been marked
without objection and that was no reason to disbelieve the evidence of
P.W-1 who seized the ID liquor. So the learned trial Court after
analyzing the evidence adduced by the prosecution and perusing the
judgment of the learned trial Court confirmed the conviction of the
accused under Section 47(a) of Bihar and Orissa Excise Act. It also
held that the learned lower Court has taken a very lenient view while
awarding sentence of rigorous imprisonment for six months and to
pay fine of Rs.1,000/- in default to undergo rigorous imprisonment
for three months more under Section 47(a) of Bihar and Orissa Excise
Act and dismissed the appeal.
SUBMISSIONS
9. Mr. R. K. Pradhan, learned counsel appearing on behalf of
the petitioner has submitted that:-
(i) Neither the learned trial court nor the appellate court
have properly assessed or discussed evidence of the
statements of PW-1 & PW-3 who were the official
witnesses. PW-3 has submitted that he was not present at
the time of seizure but joined later on put his signature on
the seizure list. So the sole evidence of PW-1 cannot be
relied upon.
(ii) No independent witness has been examined even
though the place of occurrence which is near to NALCO
Town ship road is a busy road. PW-2 has stated that he was
not present at the time of search and seizure, but he has put
his signature over the seizure list and he has no knowledge
regarding the seizure of ID liquor and the raiding party
member could not explain him regarding the same. So the
seizure becomes doubtful.
(iii) The prosecution has failed to produce the seized
articles along with jerrican and other materials in Court.
Their non-production leads to adverse inference against the
prosecution.
In support of his submissions, the learned counsel for the
petitioner has relied on the following decisions:
i) Bhajan Sahu vs. State of Orissa: (1989) 2 OCR-215
ii) Mohan Behera versus State of Orissa : (2003) 24-OCR
iii) Raman Thappa Versus State of Orissa: (1999) Crl.L.J.
1738 (Orissa)
10. Ms. S. Mishra, learned Additional Standing counsel has
vehemently opposed the submission of the learned counsel for the
petitioner stating that the prosecution has duly complied with the
procedural safeguards under the Bihar and Orissa Excise Act and
proved its case though the testimonies of PW-1 and PW-3. They
are official witnesses, but their evidence is credible and consistent
with the seizure memo and investigation records. She has further
submitted that the absence of an independent witness does not, in
itself, vitiate the prosecution case, especially when the official
witnesses have no reason to falsely implicate the accused. The
chemical examination report confirms that the substance seized is
I.D liquor as it contained 36% ethyl alcohol. She has also submitted
that it is not mandatory to produce the seized materials in Court in
cases under the Bihar and Orissa Act. She has also submitted that
in view of the nature of materials seized in such cases, it is not
practical to produce them in Court and no production of the seized
materials in Court will not falsify the prosecution case. She has
relied on the decision of the Supreme Court in the case of G.
Sahukar vs State of Orissa : (2000) 19 OCR (SC) 688, in support
of her submissions.
JUDICIAL PRONOUNCEMENTS
11. In the case of Bhajan Sahu (supra), this Court has held that the
only independent witness is the seizure witness has not supported the
prosecution case and in view of non-production of the seized liquor in
the court or jerrycan, acquitted the accused.
In the case of Mohan Behera (supra), this Court has held that
seizure has been made on the road but no independent witness was
examined who had seen the occurrence and acquitted the accused.
In the case of Raman Thappa (supra), this Court has modified
the sentence to fine only keeping in view the young age of the
petitioner absence of past criminal record towards his credit.
In the case of, Jadumani Seth vs. State of Orissa : 1994
(II) OLR 599 , this Court rejected the contentions that the
investigation was vitiated as the independent witness did not
support the prosecution case and the test was not done in presence
holding that the official witnesses did not have any hostility against
the accused to falsely implicate him and those points had been dealt
with by the learned Court below referring to earlier decisions of
this Court .
In the case of Jhadia Naik vs State of Orissa : (2010) II
OCR 572., this Court held that even in absence of independent
corroboration , the evidence of official witnesses can be accepted
to convict an accused .But in the said case neither the seized
jerrican containing liquor nor blue litmus used and hydrometer
chart prepared by P.W 1 were produced in the Court. Holding that
the prosecution has not come up with any explanation or
justification for non-production of the seized article and as the
blue litmus paper and hydrometer chart had been withheld from
Court without any explanation, acquitted the accused .-
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
12. I have perused the impugned judgments and the depositions of
the witnesses.
13. P.W.1 has given a detailed description of the manner in which
the I.D. liquor was seized and sample was sent for chemical
examination. The report Ext.3 has been exhibited proved without
objection. Merely because the P.W.2 the independent witness stated
that seizure was not done in his presence and the contents of the
seizure list not explained to him does not render the seizure illegal.
That apart, P.W. 1 had no reason to falsely implicate the petitioner.
Nothing has been shown by the defence to indicate that with ulterior
motive this accused has been falsely implicated. In fact, so suggestion
to that effect has been given to him. It is the settled principle of law,
that a conviction can be based on the evidence of official witnesses, in
the absence of corroboration by an independent witness, if their
evidence is cogent and inspires confidence. Therefore, I do not find
any plausible reason to disbelieve the evidence of the police officers,
as they do not suffers from any material discrepancy. Ext. 3, the
opinion report that the seized substance contained 36% ethyl alcohol
further strengthens the prosecution case. As far as the non-production
of the seized material in the Court is concerned, there is no mandatory
requirement in the Bihar and Orissa Excise Act for production of the
seized articles before the trial court so their non-production, does not
falsify the prosecution case if the other evidence is cogent and
unimpeachable.
CONCLUSION
14. In view of the above discussion and decisions, I am of the
considered opinion that the prosecution has proved that the i.d liquor
was seized from the exclusive and conscious possession of the
petitioner and hence the impugned judgments do not call for any
interference. The conviction of the petitioner for commission of
offence under Section 47 (a) of the Bihar and Orissa Excise Act is
confirmed.
15. As far as sentence is concerned, the occurrence is of the year,
1995. Almost thirty years have elapsed in the meanwhile. The
petitioner was on bail throughout the trial, and during pendency of the
appeal and this revision. It has not been brought to the notice of the
Court that he has similar antecedents. Hence, I am of the considered
view that it would not be proper to send him behind bars now to serve
the custodial sentence of a rigorous imprisonment for six months.
The custodial sentence is therefore modified to fine. The fine is
enhanced from Rs.1,000/- to Rs.2,500/-, in default to undergo
rigorous imprisonment for six months.
16. The Criminal Revision is dismissed with modification in
sentence.
17. The trial Court record be returned to the learned trial along
with a copy of this judgment after retaining a scanned copy.
...........................
(Savitri Ratho)
Judge
Orissa High Court, Cuttack.
The 30th May, 2025, Subhalaxmi
Signed by: SUBHALAXMI PRIYADARSHANI
Location: Orissa High Court, Cuttack
Date: 02-Jun-2025 19:18:55
