APARTI SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the order passed by the learned J.M.F.C., Ranpur in 2 (a) CC Case No. 44 of 1987 under Section 47(a) and (f) of the Bihar and Orissa Excise Act, whereby he held the petitioners guilty of having committed an offence under Section 47 (a) of Bihar and Orissa Excise Act and directed them to undergo R.I. for six months and to pay a fine of Rs. 500/ - in default, to undergo further R.I. for a period of one month, which was affirmed by the appellate Court in Crl. Appeal No. 41/128 of 1990 -89.

(2.) THE brief history of the prosecution case is that on 9.8.1987 at about 9. P.M., the Excise S.I of Rampur on receiving reliable information about the illegal distillation of Liquor of 'Ghidighadia' hill -top near village Odapala proceeded to the spot alongwith his other staff and noticed the petitioners present there. The raiding party found 72 numbers of earthen pots each containing 20 litres of molasses, fertiliser wash and one earthen pot containing 7 litres of I/D liquor. The Excise S.I. after observing formalities of conducting search, tested the liquid contents kept in the earthen pots by blue litmus paper and he also followed the same procedure to determine the I/D liquor which was kept in a separate earthen pot. Since the trial Court has already ordered an acquittal of these petitioners under Section 47 (f), it is unnecessary to go in length with regard to the possession of molasses.

(3.) THE learned counsel appearing for the petitioners has strongly urged that in this case the prosecution has significantly failed to prove exclusive possession of I/D liquor from the petitioners.It has been further urged that even assuming that the prosecution evidence is true, then it is found that one of the petitioners was not there and only the other petitioner was found. It was brought to my notice that such fact was also taken note of by the appellate Court in Para -7of its judgment. P.Ws. 3 and 4 are the official witnesses examined on behalf of the prosecution. The appellate Court found that the evidence of P.Ws. 3 and 4 was discrepant on material particulars. It has further been discussed that P.W.3 stated in unequivocal term before the trial Court that before he reached the spot, the petitioners escaped on seeing them from a distance of 100 yards. The seizure had taken place at 9 P.M. in the night. Therefore, it was unlikely that they had seen the petitioners running away in the night time particularly at 9 P.M. The factum of recovery has also not been corroborated by the independent witnesses. Therefore, in this background it becomes doubtful as to whether the I/D liquor was recovered from the conscious possession of the petitioners.