LAXMIDHAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner was convicted by the trial Court Under Section 47 (a) of the Bihar and Orissa Excise Act, and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/ -, in default, to undergo rigorous imprisonment for one month. In appeal, the Additional Sessions Judge while confirming the order of conviction modified the substantive sentence to imprisonment to one month's rigorous imprisonment while maintaining the sentence of fine.

(2.) THE concurrence is alleged to have taken place on 5.6.1991 at about 11.30 A.M. It is alleged that the Excise Sub -Inspector (P.W.I) along with other Excise Constables while performing patrol duty at Haldipali Chhak of Bargarh found the accused coming on a bi -cycle carrying a gunny bag. On suspicion the accused was detained and on opening the bag, it was found that 20 litres of illicitly distilled liquor had been kept inside a motor tube. After effecting seizure and testing the liquor by undertaking litmus paper test and hydrometer test, prosecution report was submitted against the accused alleging that offence Under Section 47 (a), Bihar and Orissa Excise Act, had been committed.

(3.) THE learned counsel for the petitioner has raised two contentions in support of his submission that the order of conviction should be quashed. He has contended that in the absence of any independent witness to the search and seizure, the factum of seizure based solely on the evidence of official witnesses who are part of the raiding party cannot be accepted particularly when there are some serious contradictions in the evidence of those witnesses. He has further submitted that in the absence of any chemical analysis of the seized liquor, it is unsafe to base the conviction on the basis of litmus paper test and hydrometer test.