SUMA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner having been convicted Under Section 47(a) of the Bihar and Orissa Excise Act and sentenced to Rl for one year and fine of Rs. 500/ -, in default to undergo Rl for two months more, which conviction and sentence have also been confirmed in appeal, has preferred this revision. The prosecution was launched against him with the allegation that while the S. I. of Excise (PW 2) was on patrol duty on 28 -8 -1988 at about 5.15 a. m. on public road at Ambagada, he found the appellant transporting 100 litres of illicitiy distilled liquor. The liquor was being carried in two plastic jerricans and eight bladders in for gunny bags. The petitioners being intercepted, the liquor with the containers was seized and tested with blue litmus paper and hydrometer. The plea of the petitioner was one of complete denial and to have been falsely implicated in the case. Three witnesses were examined on behalf of the prosecution of which PW 1 was the seizure witness who did not support the prosecution and was permitted to be cross -examined. PW 2 was the S. I. of Excise and PW 3 was the Excise Constable. Both the Courts relied upon the version of the departmental witnesses and found the petitioner guilty. The substantial question urged by the learned counsel is of the seized articles having never been proved to be illicitly distilled liquor. The submission of Mr. Misra is that neither the blue litmus paper test where blue litmus turns red nor the hydrometer test is the surest test to find the liquid to be illicitly distilled liquor and unless chemical test is held, which was admittedly not dona in the present case, the seized liquid could never be conclusively said to be illicitly distilled liquor, It is his submission that blue litmus turning red only shows the liquid tested to be acidic in nature and hydrometer test at the most shows the specific gravity of the liquid. Both such tests taken together do not establish the liquid to be unmistakably illicitly distilled liquor It is the further submission that mere statement by PW 2 of his having carried out hydrometer test is not enough and that the process by which the hydrometer test was conducted and whether he was qualified to conduct the test are to find place in the evidence. Unless PW 2 was able to satisfy the Court of his being an expert in the matter, his mere version that he had carried out the tests would not warrant a conviction. Developing the submission Mr. Misra, also urges that it is possible to conceive that other liquids have the same specific gravity as illicitly distilled liquor.

(2.) SUCH submissions of the learned counsel for the petitioner are stoutly refuted by the learned Additional Government Advocate who has relied upon a number of authorities of this Court that where the S, I. of Excise is an experienced person and states to have carried out both the litemus as well as the hydrometer tests, his version that the seized liquid was illicitly distilled liquor is to be accepted at its face value and the conviction made upon such evidence can in no way be found fault with. According to him. a chemical analysis of the liquid is not sin qua non for testing the liquid. Since there are quite a number of authorities of this Court and one decision of the Punjab and Haryana High Court reported in 1977 Cri LJ 528, The State of Haryana v. Radhey Shyam bearing on the question and the issue has been contested by the learned counsels, it Is necessary to go into the decisions individually. The first decision relied Upon by the learned Additional Govt. Advocate is 26(1960) CLT 620, Dhobei Charan Meher v. State wherein Chief Justice Narasimham held that there are various methods of testing liquor with a view to find out as to whether it is outstill or illicitly distilled liquor, the most common test being litmus test. In that case the test had not been carried out for which the prosecution was held to have failed to prove the case against the accused. The next case cited is 26(1980) CLT 307, Sainta Putani v. The State, wherein relying upon the earlier case the same Chief Justice again held that there were various methods of testing liquor as prescribed in the Excise Manual but the tests had not been applied and there was no evidence except the evidence of the Excise S. i. that except smell there was no other data on which he could say that it was outstill. The conviction and sentence in that case were set aside. The present, case was adjourned for giving opportunity to the learned Additional Government Advocate to point out the various tests prescri - bed in in the Excise Manual as was observed by Narasimham, C, J. but it is candidly submitted by him that in that Excise Manual no such tests are provided for. According to him. usually the tests applied are the litmus and hydrometer tests though he canoeded that the chemical test is the best test. It is however his submission that chemical test is not always resorted to and is not also possible to be adopted always because it is a time consuming and costly process,

(3.) ACCEPTANCE of evidence of experienced and specially trained excise officers as being qualified as experts to opine regarding the nature of the articles seized was outlined in a case of non duty paid Ganja by Hon ble Justice G. B. Pattnaik, in 63 (1987) CLT 370 (supra). Distinguishing a decision of the Madhya Pradesh High Court reported in 1978 Cri.LJ 1218. Deosingh v. The State of Madhya Pradesh His Lordship held that though the evidence, of an Excise Inspector who had never smoked Ganja and had not known different types of Ganja may not warrant acceptance of his evidence of the seized article being Ganja, yet when an experienced excise officer says from the smell as well as texture that the seized article was Ganja, the evidence could be accepted without any analysis. This decision however in deciding as such did not take into consideration the earlier decisions of this Court in 58 (1934) CLT 388, Radheshyam Jena alias Mohapatra v. The State and 1986 (I) OLR 576, State of Orissa v. Lokanath Sahu and Anr.,both decided by Hon'ble Justice Dr. B.N. Misra. The first case had held, relying on 31 (1965) CLT 172. The State v. Satyanarayan MalIick that where the seized article was merely stated to be non -duty paid Ganja, it was not acceptable evidence if the article had not been sent for chemical examination and that by a mere verbal statement it could not be determined whether the seized article was duty -paid or non - duty paid Ganja. The later case,1986(l)OLR 765 (supra) had held, where the prosecution was for possession of Bhang, that in the absence of chemical examination it was to be held that there was no proof of the seized article being non -duty paid Bhang, It is of course true that while deciding the case in 63(1987)CLT 370 (supra) though nothing was said regarding the effect of the article having not been sent for chemical examination, yet a new view was adopted that where the opinion is expressed by an experienced excise officer, his opinion can be accepted. Prior to such decision it has already been held in Criminal Revision No. 3/82 (supra) that where both the hydrometer and blue litmus paper tests had been made and the officer conducting the tests was experienced and was specially trained, his evidence was acceptable. The two other cases which need reference are 64 (1987) CLT 763, Karpura Senapati v. State, the judgment of the Hon'ble Mr. Justice S. C. Mohapatra, who held that there was no bar in the Act to prove otherwise than by chemical analysis that an article is intoxicant drug, that it is true that chemical analysis is a surer test and a Court of fact in a given circumstance may draw adverse inference by rejecting other evidence on record that it has not been proved that the article possessed is not (?) intoxicant drug, that whether the article is an intoxicant drug would depend on the facts proved and the explanation of the accused Under Section 313 CrPC, and that the chemical analysis is not a sine qua non to find the nature of the article possessed. This was followed in 1991 (II) OLR 169, Ramsis Prasad v. State that in the absence of chemical examination the Court can come to conclusion on the basis of other evidence available on record as to whether it is excisable article or not. The last case relied upon is 73 (1992) CLT 28 Subodh Sethi and Anr. v. State, where the Hon' ble Mr. Justice A. Pasayat relied upon the evidence of the excise officer to accept the seized liquid as illicitly distilled liquor since both the blue litmus and hydrometer tests had been done by an officer who had 22 years of experience as an excise officer and had undergone training in the line.