KABIRAJ SETHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) BY the judgment passed in 2(a) C.C. Case No.5 of 1993 (Trl. No.76 of 1993) by the learned S.D.J.M., Hindol, the petitioner was convicted for commission of offence under Section 47 (f) of the Bihar and Orissa Excise Act and sentenced to undergo R.I. for six months and to pay a fine of Rs. 500/ - in default to undergo R.I. for one month. In the impugned judgment passed by the learned Sessions Judge, Dhenkanal -Angul, Dhenkanal in Criminal Appeal No.86 of 1993, the conviction of the petitioner was upheld but the sentence was modified and reduced to the extent that the petitioner would undergo R.I. for one month and pay a fine of Rs.500/ - in default to undergo R.I. for one month. Being aggrieved, the petitioner has preferred this revision challenging the order of conviction.

(2.) PROSECUTION was launched against the petitioner on the allegation that P.W.1, the S.I. of Excise, Hindol while performing patrolling duty, on getting reliable information, conducted search of the house of the petitioner and recovered ten earthen pots each containing 20 Kgs. of F.M. wash in presence of the Excise Constables, P.Ws. 2 and 3. P.W. 1 conducted blue litmus paper test and prepared seizure list Ext. 1. P.W. 1 also appears to have collected the sample of F.M. wash and destroyed the seized pots and the balance quantity of F.M. wash. The petitioner took the plea of denial. Placing reliance on the evidence of P.Ws. 1, 2 and 3, the learned S.D.J.M., Hindol appears to have come to the conclusion that the seized contraband articles were recovered from the exclusive and unlawful possession of the petitioner. The learned appellate Court while upholding the conviction appears to have endorsed the finding of the learned S.D.J.M., Hindol.

(3.) IT is further contended on behalf of the petitioner that there is absolutely no basis to sustain the finding that the seized contraband was recovered from the exclusive or conscious possession of the petitioner. This contention does not appear to be without substance. In the present case, the seized articles are not alleged to have been recovered from the personal possession of the petitioner. The articles are admitted to have been seized from the house stated to be belonging to the petitioner. P.Ws. 2 and 3 deposed that the articles were seized from the bed room of the petitioner It is also in the evidence of P.W. 3 that the house in question had two rooms. Prosecution has not led any evidence to indicate that the house in question was in exclusive control and possession of the petitioner. Both the Courts below have failed to take note of this fundamental fact in the absence of which there is no basis to conclude that the seized articles were recovered from the possession of the petitioner. Such failure amounts to non -consideration of the nature of the allegations made against the petitioner and the nature of materials placed before the Court to substantiate the allegations. Therefore, the order of conviction against the petitioner under Section 47 (f) of the Act is not sustainable in law.