AKSHAYA KUMAR SENAPATI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is a revision against the orders of conviction and sentence passed under Section 47(a) of the Bihar and Orissa Excise Act.

(2.) THE prosecution case in brief is that on 11 -1 -91, the Sub -Inspector of Excise (p. w. 3) in course of his patrolling duty in Aul market along with an excise constable (p. w. 4) at about 1 p. m. found a plastic Jerry -can containing 10 liters of C.S. liquor and one glass tumbler from the temporary shed at the Aul market where the Petitioner was standing and after observing all the formalities, p. w. 3 seized the plastic Jerry -can and the glass tumbler and after performing Hydrometer and litmus paper tests came to the conclusion that the Jerry -can contains C.S. liquor. He prepared the seizure list in presence of independent witnesses and on completion of inquiry, prosecution report was submitted before the learned S.D. J.M., Kendrapara, to bring home the charges, the prosecution examined four witnesses including the S.I. of Excise and the excise constable and two seizure witnesses. The defense was completely denial. In the statement recorded under Section 323, Cr. P.C., it was stated that the accused was a man of village Giribandh few kilometers away from the place of seizure and the shed from where the alleged C.S. liquor was seized, does not belong to the accused Petitioner, but a case has been falsely foisted. In course of trial, p. ws. 1 and 2, the seizure witnesses turned hostile and they were cross -examined.

(3.) MR . A.K. Rao, learned Counsel for the accused Petitioner assails the orders of the learned courts below on the ground that the I.O. who had seized the illicit liquor from the shed, had not verified any document as to whether the said shed belongs to the accused -petitioner inasmuch as the seizure was made in absence of the Petitioner. It is further submitted that in absence of a finding with regard to the ownership of the shed, the learned courts below could not have held the Petitioner guilty for the alleged offence. The evidence of p. w. 3 and p. w. 4 are also challenged on the ground of inconsistency. The learned Counsel has referred to the decision in the case of Karpura v. State of Orissa : 64 (1987) C.L.T. 763 in support of his contention that the prosecution is required to prove that the intoxicant drug was in possession of the accused and then also the presumption of guilt can be attracted under Section 48 of the Act unless the accused is able to explain the validity of such possession in accordance with law. It appears from the impugned orders that the learned courts below have observed that the evidence of p. ws. 3 have not been challenged with regard to possession of liquor by the accused and its seizure. Similarly p. w. 4 who has described the fact of seizure of liquor from the possession of the accused, has also not been effectively cross -examined to shake his evidence. The learned courts below also took note of the evidence of p.ws 1 and 2 who have turned hostile, but had admitted their respective signatures on the seizure list. The evidence of p. ws. 3 and 4 therefore, clearly proves the seizure of C.S. liquor from the possession of the accused -petitioner from a thatched house in the hat {market}.