SADASIVA SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) The accused petitioner has undergone trial under Section 47(a) of Bihar and Orissa Excise Act being in possession of 5 liters of illicit distilled liquor which was seized from him by P.W. 3, the Sub-Inspector of Excise al Pahanda Chhak on 29/10/1985 at 4.30 P.M. According to the prosecution, the J.D. Liquor was seized in presence of P. Ws. 1 and 2 by P. W. 3. The trial Court believed the prosecution case and convicted the petitioner to undergo Simple Imprisonment for six months and to pay a fine of Rs.500/-, in default, to undergo Simple Imprisonment for one month, which was upheld by the appellate court.

(2.) P.W. 1 in his deposition has staled that while returning from Bhanjanagar, he got down at Pahanda Chhak and in his presence the accused was apprehended by the Excise staff. He did not smell the liquid in the seized plastic jerrican and the liquor was not measured in his presence. It was only the Excise officer who opened the Jerrican and had a smell of it and stated that it contained illicit distilled liquor. The jerrican which was seized from the possession of the accused shown to him in the court and his attention was not drawn if that was the jerrican which was seized from the possession of the accused. P.W.2 who is the another seizure witness has Stated in his evidence that the Excise Officer opened the jerrican and tested the liquid and prepared the seizure list. In the cross-examination he has Slated that the, seizure list was not read over to him and the liquor/was not measured in his presence. He stated in his deposition that he did not know what was inside the jerrican. The Excise officer did no give any paper to the accused after the seizure and he could not say where the jerrican was.

(3.) The S.I. of Excise (P.W.3) who alleged to have detained the accused at Pahanda Chhak had stated in his examination in chief that he had seized the plastic jerrican M.O.1. containing 5 liters of I.D. Liquor and prepared the seizure list at the spot and tested the liquid with blue litmus paper which turned red and also tested the seized liquid by Hydrometer test and found it to be I.D. Liquor. According to him, he also tested some portion of the seized liquid in his mouth and found into be I.D. Liquor and the persons present at the. spot also tested the seized liquid and found it 10 be I.D. Liquor. In cross-examination this witness has stated that he had not measured the liquid in M.O.1. but the capacity of the jerrican was 5 liters. He did not send the seized liquid for chemical test and also did not prepare the hydrometer chart and he could not say the type of litmus paper he used to lest the liquid. His statement that the seizure witnesses had also tested the liquid was denied by them in their evidence. In view of this, I find that there was no basis for the courts below to hold that 5 liters of I.D. Liquor was recovered from the possession of the accused and the liquid that was recovered from the possession of the accused was I.D. Liquor. As such there is no basis to uphold the conviction and sentence passed by the courts below. I, accordingly, set aside the orders of conviction and sentence passed by the courts below and acquit the accused of the offence charged.