RADHASHYAM JENA ALIAS MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner has been convicted under Section 47(a) of the Bihar and Orissa Excise Act, 19 L 5 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for seven days and to pay a fine of Rs. 50/- in default to rigorous imprisonment for ten days.

(2.) According to the prosecution, the petitioner owns a grocery shop where he sells firewood, vegetables, cocoanut, etc. on 22-8-1979 at 6.30 p.m. P.W. 1, Sub-Inspector of Excise, searched the petitioner's shop and found three bottles containing lID liquor and nine paper packets each of which contained half a gram of non-duty-paid Ganja. P.W. 1 seized the aforesaid incriminating articles under seizure list, Ext. 1. After completion of investigation P.W. 1 submitted prosecution report against the petitioner.

(3.) At the trial three witnesses were examined on he half of the prosecution. As already noted, P.W. 1 had conducted the search. P. Ws. 2 and 3 are the seizure witnesses. No witness was examined on behalf of the defence. The defence plea is one of denial. In his statement recorded under section 313 of the Code of Criminal Procedure, the petitioner has stated that no Ganja or liquor was seized from his shop, that the concerned shop belonged to his father and that on the day of occurrence he had gone to Bhadrak in connection with a case. The learned Magistrate who tried the case found the petitioner guilty under Section 47(a) of the Act for having been in possession of non-duty-paid Ganja, convicted and sentenced him as noted above. After dismissal of the petitioner's appeal before the learned Sessions Judge, he has moved this Court and prayed that his conviction and sentence should be set aside.