SMT. RADHA SAHUANI Vs. THE STATE

JUDGEMENT

(1.) THE accused -petitioner faced the trial for the offence under Section 47(f) of Bihar and Orissa Excise Act, 1915 (in short, 'the Act') For being in illegal possession of 480 kgs. of molasses mixed wash in 7 pitchers in fermented condition which had been kept for distillation of I.D. liquor. The said articles were seized by p. w. 3, the Excise Sub -Inspector, Berhampur on 31 -3 -1987 while on duty in Taratareni festival. According to the prosecution the aforesaid articles were seized from the house of the accused in presence of p. ws. 1 and 2, two independent witnesses of the locality besides p. w. 4 who was the A.S. I., E.I. B., Berhampur. At the time of trial except providing their signatures in the seizure list Ext. l.P. ws. 1 and 2 did not state anything regarding possession and recovery of the said articles from the possession of the accused. However, p. ws. 3 and 4 convicted the accused -petitioner and sentenced her to undergo R.I. for six months and to pay a fine of Rs. 500/ -. In appeal, learned Second Addl. Sessions Judge, Berhampur concurred with the findings on fact recorded by the trial court and dismissed the appeal upholding the conviction and sentence. Thus the accused has preferred this revision challenging the aforesaid conviction order.

(2.) THE same point as were canvassed before the courts below also been canvassed in this revision. The scope of interference by the revisional court is limited to the extent that in the absence of any illegality or perversity in appreciation of such facts and evidence, revisional court should not interfere with the concurrent findings of fact of the trial court and appellate courts.

(3.) P . ws. 1 and 2 no doubt have not stated regarding the recovery of articles from the possession of the accused, but they simply proved their signatures in the seizure list. Ext. 1. P. w. 1 in cross -examination has said that he had seen no liquor and the cross -examination of p. w. 2 was declined. Under such circumstance, the evidence of p. w. 1 and 2 may not be of much help to the prosecution, but certainly it is not of any advantage to the accused inasmuch as there is nothing in their evidence which goes to disprove the statement of p. ws. 3 and 4 who are two official witnesses having no enemity or motive to falsely implicate the accused. As has been held by the Apex Court in the case of Madan Singh v. State of Rajsthan:, A.I.R Rule 1978 S.C. 1511 if the evidence of Investigating Officer who recovered the material object is convincing the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. The same view has been reiterated by this Court in the case of Subodh Sethi and Anr. v. State of Orissa, Vol. 73, (1992) C.L. T. 28. In that case it has been held by this Court that conviction can be maintained on the basis of evidence of departmental Officers if it is true and trustworthy and examination of independent witnesses is a requirement of caution and not mandatory requirement.