BISAM HARIJAN Vs. STATS OF ORISSA

JUDGEMENT

(1.) The petitioner, having been aggrieved by the concurrent findings of conviction and sentence Under Section 47(a), Bihar and Orissa Excise Act dated 14 -4 -1993 by the Sessions Judge, Jeypore, has preferred this revision. The petitioner was prosecuted Under Section 47(a) of Bihar and Orissa Excise Act, 1947 and after trial, was convicted and sentenced to undergo S. 1. for six months and to pay a fine of Rs. 500/ -, in default to undergo S. 1. for one month more,

(2.) THE facts leading to the prosecution against the petitioner are described hereunder: PW 1, an A. S. I. of Police, Jaypore town P. S. while conducting patrol duty intercepted the petitioner who was found moving in a suspicious manner with a motor tube containing some liquid substance. In presence of witnesses, on search, the motor tuba contained I. D. liquor measuring 25 litres. PW 1 prepared the seizure list in presence of other prosecution witnesses, namely, PWs 2 to 4 and sent the sample for examination by the Excise Sub -Inspector, Jeypore, On examination; PW 5 noticed that the tube contained I. D. liquor. PW 6 was satisfied with the examination by hydrometer and litmus paper tests and confirmed that the motor tube contained I.D. liquor. Thereafter the petitioner was challenged to the Court and on completion of trial, the learned Judicial Magistrate, Jeypore having been satisfied with the materials recorded the conviction Under Section 47(a), Bihar and Orissa Excise Act (hereinafter referred to as the 'Act') and sentenced him to undergo S.1 for a period of six months and pay a fine of Rs. 600/ -, in default of the same, S. 1. lot one month more. The petitioner basing aggrieved by the order of conviction and sentence, preferred an appeal before the Sessions judge, Jeypore which ended with the same result. Being aggrieved by the. judgments of both the Courts below, She petitioner has preferred this revision.

(3.) THE learned Additional Government Advocate while supporting the judgment of the Courts below, has, however, advanced his contention that in this case, the prosecution has proved that the petitioner was in conscious possession of S.D. liquor. In view of the consistent evidence of PWs 1 to 4, both the Courts below did not find any other alternative than to hold that the accused petitioner was possessing I. D. liquor.