MADHU SUNDHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) HAVING heard Mr. P.K. Padhi for the Petitioner and Mr. R.K. Patta, the learned Additional Government Advocate, I find that the order of conviction recorded against the Petitioner by the trial court under Section 47(a) of the Bihar and Orissa Excise Act with sentences to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1000/ - and in default of payment -thereof, to undergo rigorous imprisonment for a further period of four months maintained by the appellate court holding the Petitioner to be guilty under Section 47(a) of the Bihar and Orissa Excise Act for being, in possession of twenty litres of illicit -distilled liquor on June 20, 1982, detected by the Excise Sub -Inspector (P.W. 1) in the presence of other witnesses, cannot be sustained as both the trial and appellate courts did not take care to examine and record definite findings as to whether the article in question was liquor which would make the Petitioner liable to be convicted and punished and in view of the fact that in the instant case, as recorded by the courts below, P.W. 1 had conducted the hydrometer test which as observed by this Court in Khetramohan Nayak v. State of Orissa, is not an accurate test as it tells only specific gravity and density of the liquid in which the instrument is put and this test is not accepted by the Indian Standard Institution (I.S.I.) as a sure test and in the absence of litmus test or other chemical test, it could not affirmatively be said that illicit, distilled liquor had been recovered from the possession of the Petitioner.

(2.) I would allow the revision, set aside the older of conviction and sentences passed against the Petitioner and direct that he be set at liberty forthwith.