STATE OF ORISSA Vs. GADEI SAHU

JUDGEMENT

(1.) THIS appeal has been filed by the State of Orissa against an order of acquittal of the Respondent passed by Sri N.K. Das, Magistrate, Second Class, Berhampur, OB 6th December 1960.

(2.) THE prosecution case is that there is a Nisa Nivaran Samiti in village Kukudakhandi in the district of Ganjam of which P.W. 1 and some other P.Ws. are members. They received information that the accused -Respondent was selling illicit liquor to the members of the public. With a view to catch him, P.W. 2 Upendra Patnaik was deputed to purchase liquor from the accused on 31 -8 -1959 at about 7 PM. P.Ws. 1, 3 and 4, however, followed him. While the accused was offering liquor contained in a girts tumbler (M.O. 11), P.Ws. 1, 3 and 4 immediately rushed to the spot and P.W. 1 caught hold of the glass tumbler from the hand of the accused in the presence of P.Ws. 3 and 4 and brought the accused and the glass tumbler containing liquor to the Sarpanch Office. Thereafter they sent information to Village Munsif (P.W. 8) who arrived at the spot and took charge of the liquor and the accused. The accused admitted his guilt before the members of the Panchayat including the Sarpanch P.W. 5 and the President of the Village Prohibition Committee (P.W. 6) and gave a confessional statement (Ex. 3). Thereafter information was sent to the Antismuggling Officers of the Excise Department. Next day, that is, on 1 -9 -1959, P.W. 7, Excise Sub Inspector, arrived in the village seized the glass tumbler containing the liquor produced by the Sarpanch and the Village Munsif as also Ex. 3, the statement of the accused. He prepared a seizure list under Ex. 1 and arrested the accused and released him on bail He put the liquor in a bottle and sealed the same. After investigation he submitted a report to the Magistrate for taking necessary action. He tested the contents of the sealed bottle (M.O. 1) in the Court and found the same to be liquor.

(3.) THE learned Magistrate acquitted the accused on the grounds: (i) that P.W. 1 who effected the arrest of the accused and the seizure of the liquor from the accused had no authority under the Bihar and Orissa Excise Act or Rules made there under to do the same; (ii) the Excise Sub -Inspector having found liquor not from the possession of the Village Munsif (P.W. 8), the latter should have been put on trial; and (iii) that as the glass tumbler containing liquor was lying with P.W. 8 for the whole of the night before it was seized by the Excise Sub -Inspector, there was scope for adulteration or substitution of its contents and as such it does not conclusively prove the guilt of the accused.