SUKADEV NATH Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the judgment passed by the learned Sessions Judge, Balasore, convicting the Petitioner under Section 47 (f) of the Bihar and Orissa Excise Act (herein referred to as the 'Act') and affirming the sentence imposed by the learned Sub -Divisional Judicial Magistrate, Bhadrak.

(2.) SHORT facts of the case are as follows: On 18 -5 -1980 p.w. 4a Sub -Inspector of Excise, searched the house of Bad of the Petitioner in village Mirjapur in the presence of an Excise Constable (p.w. 2) and two independent witnesses (p. ws, land 3) and found 5.500 litres of I. D. liquor kept in a Dakchi in the house and two pots each containing 20 K. Gs. of fermented mahua wash with distillation by seizure list (Ext. III) and submitted a prosecution report against the Petitioner for having committed an offence under Section 47 (a) of the Act. The Petitioner was placed on trial before the learned Sub -Divisional Judicial Magistrate, Bhadrak, where he pleaded that his house and Bari were not searched and the contraband articles were not seized by the Excise Officer.

(3.) THE learned Magistrate, however, believed the evidence of P.Ws. 2 and 4, because the Independent witnesses (P.Ws. 1 and 3) turned hostile to the prosecution and recorded the findings that the Petitioner's house and Bad were searched by p.w. 4 and I.D. liquor mahua wash and distillation apparatus were seized from the house and Bari of which the Petitioner was in exclusive possession and so he convicted him for the offence under Section 47 (a) of the Act and passed a sentence of rigorous imprisonment for six months and a fine of Rs. 500/ -, in default to undergo rigorous imprisonment for two months more. The Petitioner appealed before the learned Sessions Judge who took a different view w far as the identity of the seized I. O. liquor was concerned for, he held: ...If this circumstances, I would agree with the point made in the written argument that the prosecution evidence left scope for reasonable doubt as to whether the contents in the sample bottle (M. O.I) was liquor. He however, a greed with the learned Court below that 40 K. Gs. of mahua wash kept in two pots and distillation apparatus were seized from the Bari behind the house in possession of the Petitioner. Accordingly he altered the conviction from Clause (a) to (f) of Section 47, but maintained the sentence. The revision came up for hearing' before a learned single Judge of this Court who doubted the correctness of the decision cited at the Bar and reported in Paramananda Jena v. State, 64 (1987) C.L.T. l44, and referred the case to a larger Bench and that is how the case has come up before us.