KANHEI KALAR Vs. STATE

JUDGEMENT

(1.) THE Petitioner has been convicted under Section 47(80) of the B. & O. Excise Act and sentenced to pay a fine of Rs. 5001/ - in default, to undergo R.I. for It months.

(2.) ACCORDING to prosecution, on 4 -2 -1965, while Budhiram Patro, Constable No. 402 (p.w.5) was returning to Nawapara P.S. on duty, he found Petitioner at village Patal bentkuri transporting liquor contained in a drum and two kerosene tins on a buffalo cart. On demand, Petitioner could not produce any licence or pass permitting transport of such a quantity of liquor. P.w. 5 took Petitioner with the cart loaded with liquor to the police station where the A.S.I. (p.w. 3) seized the same in the presence of p.ws. 1, 2 and 6 under the seizure list (Ex. 1). On receipt of a requisition from p.w. 3, the Excise S.I. (p.w. 4) came and tested the contents of the two kerosene tins and found the strength of liquor to be 58. O.U.P. As the cork of the drum could not be opened, he came again on 5th, got it opened, examined and found that the strength of the liquor contained therein was 57.8 U.P. Accordingly, Petitioner was prosecuted for an offence under Section 47(a) of the B. & 0 Excise Act. Petitioner pleaded not guilty to the charge and in defence alleged that p.w. 5 asked him to drive the cart to the P.S. and as he refused to comply with the request, he has been falsely prosecuted.

(3.) THE learned Magistrate who tried the case accepted the evidence of the p.ws. that Petitioner was transporting the drum and two tins on the buffalo cart containing liquor which was beyond the permissible limit, in quantity and convicted him. In appeal before the learned Sessions Judge, Petitioner contended' that no litmus paper test was made to find out if the contents of the drum and tins were liquor; that prosecution has failed to prove that he was in conscious possession of the liquor or that he was in possession of more than the permissible quantity and that be has been prejudiced by the manner in which his examination under Section 342, Code of Criminal Procedure, was recorded. The learned Sessions Judge negatived all these contention and confirmed the conviction and sentence of the Petitioner.