BISWANATH SAHOO Vs. STATE

JUDGEMENT

(1.) In this revision petition, the petitioner has assailed the order of conviction and sentence passed by both the courts below in a case registered under S. 47(a) of the Bihar and Orissa Excise Act.

(2.) The short history of the prosecution case is as follows : That on 30/05/1993 at about 4.00 p.m. while the Sub-Inspector of Excise (E.E. and E.B.), Berhampur along with his staff was performing patroll duty at village Luchapada, they saw the appellant selling i.d. liquor in an one-roomed house. The petitioner had bolted the house from inside and through the widow he was selling the i.d. liquor. At that juncture the Excise staff conducted a raid of the premises in presence of the witnesses. The S.I. of Excise searched the house and recovered two plastic jerricans one containing 20 litres and the other containing 17 litres of i.d. liquor. They also seized a glass-tumbler smelling liquor and cash of Rs. 82.00 collected as the sale proceeds of the liquor. The S.I. of Excise tested the contents of the plastic jerricans by litmus paper and hydrometer instrument. Since the petitioner was in illegal possession of the i.d. liquor, the S.I. of Excise accordingly filed a prosecution against the petitioner and the proceeding started against him ultimately culminated with his conviction and the learned J.M.F.C., Berhampur sentenced him to undergo R.I. for 8 months and to pay a fine of Rs. 500.00, in default to undergo R.I. for one month. The petitioner having been aggrieved with and affected by the order of conviction and sentence preferred an appeal before the learned Sessions Judge, Berhampur which was registered as Criminal Appeal No. 185/93 and it was eventually transferred to the Court of 2nd Addl. Sessions Judge, Berhampur and renumbered as Criminal Appeal No. 78/94. The findings of the learned appellate Court did not yield any other result than confirming the order of the learned trial Court. Therefore, the petitioner being underterred by the conviction and sentence passed by both the Courts below has filed this case.

(3.) Mr. Senapati, learned Advocate appearing for the petitioner has raised the following points in support of his argument. (i) The prosecution has miserably failed to prove that the alleged i.d. liquor has been recovered from the possession of the petitioner; (ii) The S.I. of Excise did not have requisite and essential qualification to conduct the test of i.d. liquor and, therefore, the observation made by him should not have been accepted by both the Courts below; (iii) Independent witnesses although available have not been examined by the prosecution, therefore, the trial Court should not have believed the seizure of i.d. liquor from the possession of the petitioner.