INDRA DANDASENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner has been convicted under section 47 (a) and (f) of the Bihar and Orissa Excise Act (in short, the'Act'). The trial Court had imposed sentence of R.I. for two years and fine of Rs. 2,000/ -, in default, S. I. for six months. The appellate Court while confirming the order of conviction has reduced the sentence to R. I. for six months and fine of Rs. 500/ -, in default, S. I. for onemonth. By Order No. 10, dated 16 -2 -1995, this Court issued notice of enhancement of sentence.

(2.) AS per the prosecution case, on 20 -12 -1991 at about 1 00 p. m. the Sub -Inspector of Excise, Surada Charge, while was patrolling at Badaponasahi received information that the accused was preparing I. D. liquor and as such he want and searched the place of the accused in presence of witnesses and recovered one earthen 'mathia' (pot) containing 20 littres of I.D. liquor and 65 earthen posts each containing 20 Kgs. of formented mohua mixed with Gur 'pocha'. After undertaking litmus paper and hydrometer tests, the S. I. of Excise found that the liquor seized was I. D. liquor. He drew sample of 'pocha' (mohua mixed with Gur 'pocha') from one earthen pot and destroyed the remaining number of earthen posts allegedly containing mohua mixed with Gur 'pocha'. After completion of investigation he submitted prosecution report alleging commission of offence underSection 47 (a) and (f) of the Act.

(3.) DURING the trial, prosecution examined 4 witnesses of whom PWs 1 and 2, the two independent witnesses to search andseizure, turned hostile and did not support the prosecution case. PW 3 is the S.I. of Excise and PW 4 is the Constable who accompanied him. Relying upon the evidence of PWs 3 and 4, both the Courts below have convicted the petitioner underSection 47 (a) and (f) of the Act.