SUKURU BEHERA Vs. STATE

JUDGEMENT

(1.) CONVICTION under Section 47(a) of the Bihar and Orissa Excise Act, 1915 (shortly described as 'the Act') and sentence imposed by Judicial Magistrate, First Class, Berhampur having been upheld in appeal by learned Second Additional Sessions Judge, Ganjam, Berhampur, Petitioner has moved this application.

(2.) ON the allegation that on 22 -4 -1982 the Petitioner was found in possession of 40 litres of illicit distilled liquor, prosecution was launched and the Petitioner faced trial. Alleging possession of and seizure from the Petitioner of the aforesaid illicit distilled liquor, prosecution report was submitted by the Sub -Inspector of the Excise Department. Three witnesses were examined including the informant officer (P.W. 3) and Asst. Sub -Inspector of Excise (P.W. 1) in whose presence alleged seizure was made. Another witness stated to have witnessed the seizure was examined as P.W.2.

(3.) LEARNED Judicial Magistrate, First Class, Berhampur, trying the case held that the two witnesses, namely, P.Ws. 1 and 3, though official witnesses, clearly established the involvement of the Petitioner in the alleged offence and it was established beyond any shadow of doubt that he was in possession of the illicit distilled liquor which was seized from him. Before him it was urged that there was no independent witness to the seizure and no chemical test and/or authentic test was conducted to find out as to whether the alleged seized liquid was illicit distilled liquor or not. The trial court relying on the evidence of P.W. 3, the Sub -Inspector of Excise held that the hydrometer test along with blue litmus paper test having been conducted by an experienced and specially trained Excise Officer was sufficient to establish that the material was liquor. He did not accept the prayer of the Petitioner to extend provisions of the Probation of Offenders Act to him. He found the Petitioner guilty of the offence as aforesaid and convicted and sentenced him to undergo R. I. for six months and imposed a fine of Rs. 500/ - with a direction that in case of failure to deposit the fine a further R. I. of one month was to be undergone.