RAGHU ALIAS RAGHUNATH BARIK Vs. STATE

JUDGEMENT

(1.) In this revision the petitioner challenges his conviction Under Section 47(a) of the Bihar and Orissa Excise Act and sentence to R1 of six months and fine of Rs. 500/ -, in default to undergo R1 for one month more and confirmation of the conviction and reduction of the sentence to two months' RI and fine of Rs. 500/ -, in default to undergo R1 for one month more in appeal. A brief sketch of the facts are that on 10 -5 -1985 the SI of Excise (PW 4) while performing patrol duty along with his staff received information of the petitioner having kept contraband articles. He and his staff raided the house of the petitioner. From a room of the house 1 K.G. 150 grams of non -duty paid Bhang kept in a gunny bag and 1 KG. 200 grams of non -duty paid Bhang dust kept in a cloth bag were stored. The petitioner was present at the time of raid and seizure. He was made the person responsible for storing of the contraband articles and was prosecuted.

(2.) TWO contentions have been advanced by Mr. Kar appearing for the petitioner, the first being that there was no evidence of the petitioner as possessing any contraband articles, and the second that the seized articles were never proved as contraband. In respect of the first question it is his submission that there was absolutely no evidence of the petitioner being the owner of the house or even of the room from which the articles were recovered and that his mere presence there at the time of seizure would not show that he was in possession of the articles. A glance at the evidence of PW 4 shows him to have made the statement that the petitioner was present in the room when they raided and conducted the search. The petitioner's presence however would not conclusively show of his having kept the articles there. Admittedly, PW 4 also stated that he did not seize any documents regarding the ownership of the house in question. No evidence has been placed also regarding such ownership. It is also not in evidence that the petitioner was in exclusive possession of the room in question from where the seizure was made. The plea of the petitioner was one of denial. The possession contemplated under the Act so as to give way to the culpable conduct is conscious exclusive possession as was explained in 1993 (I) OLR 225 (Urmila Sahoo v. State of Orissa). It is fairly conceded by the learned Additional Government Advocate that such evidence is lacking. - -

(3.) IN the present case the evidence of PW 4 shows of his admission that he had not sent the seized articles for chemical examination. His evidence also does not show his length of experience and exposure to the articles so as to be treated as an expert to vouchsafe the nature of the seized articles. Even applying the test laid down in 73 (1992) CLT 28 (supra) the evidence was not satisfactory to establish the identity of the seized materials. Hence on both counts the petitioner succeeds.