LAMBODHAR NATH Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this revision, the petitioner challenges the legality of the confirming order of conviction and the sentence to undergo simple imprisonment for two months and to pay a fine of Rs. 150/-, in default to undergo S.I. for one week more for the offence under Section 47(a) of the Bihar and Orissa Excise Act (hereinafter to as the 'Act').

(2.) Prosecution case is, on 29-9-1985 at about 2 p.m., P.W. 1, the Sub-Inspector of Excise along with P.W. 2, the Excise Constable, on suspicion detained the petitioner who was found carrying on his cycle 20 litres of illicit distilled liquor. He could not account for such possession. The liquid and the containers were seized and P.W. 1 carried on both hydrometer and litmus paper tests. On smelling the liquid he found that the same was illicit distilled liquor. After completing the inquiry he submitted prosecution report. The petitioner denied the prosecution case.

(3.) Mrs. P. Mohanty, learned counsel for the petitioner, submitted that the courts below committed an error in holding the petitioner guilty of the offence alleged on the basis of the uncorroborated testimony of the two witnesses for prosecution who were the excise staff and thus, interested in the prosecution of the petitioner. The second limb of argument of Mrs. Mohanty was that, in the absence of any notification either by the Board of Revenue or by the State Government prescribing the minimum quantity of liquor, the possession of which beyond that limit would amount to an offence, the courts below should have held that the petitioner did not commit any offence. In other words, according to the learned counsel, in the absence of any such notification, mere possession of any quantity of liquor would not be punishable. Mr. S. Das, learned Additional Standing Counsel, on the other hand, supported the findings of the courts below.