RATNAKAR SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision has been filed challenging the order of conviction of the petitioner by the Judicial Magistrate First Class, Patrapur in 2(a)CC No. 4 of 1993 (Tr. No. 163 of 1993) and the confirming judgment of the learned 1st Addl. Sessions Judge, Berhampur in Crl. Appeal No. 83 of 1994 (211/93 GDC).

(2.) ACCUSED -petitioner was prosecuted for the offence under Section 47(a) of Bihar and Orissa Excise Act (in short, 'the Act') on the allegation of illegally being indulged in the business of sale of liquor and also for being in possession of 30 litres of I.D. liquor which was recovered from his possession along with the containers, the glass tumbler and the sale proceeds on 15.5.1993 by the S.I. of Excise, Chikiti (P.W. 3) in presence of independent witnesses (P.Ws. 1 and 2) and the Excise Constable (P.W.4). He pleaded not guilty and claimed for trial and during the trial he also examined two witnesses (D.Ws. 1 and 2) who stated that petitioner has no house at Badasahi (where the aforesaid articles were seized from the possession of the petitioner). Learned trial Court found that the evidence of P.Ws. 3 and 4 of and the exhibited documents reliable and accordingly convicted the petitioner and sentenced him to undergo R.I. for six months and to pay a fine of Rs. 1,000/ -, in default, to undergo, S.I. for one month. Learned trial Court rejected the contention of the petitioner that he had no house in the occurrence village and that in the absence of chemical analysis of the seized liquor the evidence of I.O. that it is I.D. liquor is not acceptable. The same points were reiterated before the appellate Court and leaned Addl. Sessions Judge, referring to the decisions reported in (1994) 7 OCR 919 (Diban Bisoi v. State of Orissa) and 1995 (1) OLR 102 (Huding Singh v. State) rejected the contention of the petitioner that chemical analysis of the liquor was not essential. Both the Courts below accepted the prosecution version about the identity of the I.D. liquor from the evidence of P.W. 3, who, as stated by him (P.W. 3), had the departmental experience and requisite training to identity the I.D. liquor by blue litmus paper test and hydrometer test and also by smell. - -

(3.) LEARNED counsel for the petitioner alternatively argued that the petitioner being a young man aged about 30 years may be given the benefit of the provision of the Probation of Offenders' Act. Indeed, in that connection there is decision of this Court which lays down the principle that the benefit of the aforesaid Act can be extended to a person guilty of such type of offence. (See (1994) 7 OCR 522 : Kanda Khadia v. State of Orissa). But in normal circumstances, such benefit should not be extended in favour of a person consciously committing offence of sale of liquor which is not only in violation of the statutory provisions of the Act but also an offence against the society. In this case, as argued by the learned counsel for the petitioner, there is no record of previous conviction of the petitioner and he is a young man aged about 30 years. Hence, keeping in view the said circumstances, the benefit of the Probation of Offenders' Act is granted to him in the following manner that he shall pay the fine and shall execute a bond for Rs. 5000/ - with one solvent surety for the like amount to the satisfaction of the trial Court under Section 4 of the Probation of Offenders' Act undertaking therein that he shall not indulge in any other crime much less the crime of the alleged type and to keep peace and be of good behaviour for a period of two years or else to serve the substantive sentence. If he shall execute such bonds, within one month and shall pay the fine amount simultaneously or before that, then the trial Court need not forward him to jail. In the event of non -compliance or violation of any conditions, he shall be sent to jail to serve the conditions, he shall be sent to jail to serve the sentence. During the period of probation he shall remain under the supervision of the concerned officer who shall be directed to submit periodical reports to the trial Court.