JUDGMENT

M. M. DAS, J. — This revision is directed against the judgment passed by the Courts below convicting and sentencing the peti¬tioner under Section 47(a) of the Bihar and Orissa Excise Act, 1915.

2. The prosecution case in brief is that on 4.12.1994 at about 12.30 P.M., the Sub-Inspector of Excise (P.W.2) while on patrol duty conducted a search in a temporary thatched house at Khalasi Sahi, Berhampur, in presence of the independent witness¬es, recovered and seized five litres of illicitly distilled liquor in plastic jerry-cane and two glass tumblers and arrested the petitioner. Subsequently, the Sub-Inspector of Excise tested the liquor by litmus paper test and also conducted test by the application of hydrometer to examine the density of the liquid seized and was confirmed that it was illicitly distilled liquor. Accordingly, a prosecution was lodged under Section 47(a) of the Bihar and Orissa Excise Act, 1915. The plea of defence was of total denial. Three witnesses have been examined from the side of the prosecution. Out of them, P.W.1 being an Excise Constable and P.W.3 being an independent witness, were examined as seizure witnesses. The Sub-Inspector of Excise has been examined as P.W.2.

3. Learned counsel for the petitioner contended that the independent witness P.W.3 though cited, as a seizure witness has not supported the prosecution as he has stated in the deposition that he does not have any knowledge regarding the occurrence nor he knows the accused. He further submitted that since P.W.1, the other seizure witness, is an official witness, his deposition should not be accepted. With regard to the evidence of Sub-Inspector of Excise, P.W.2, he submitted that nothing from his evidence goes to show that the alleged illicitly distilled liquor was seized from the conscious possession of the petitioner and further the prosecution has utterly failed in proving the seized liquor as illicitly distilled liquor.

4. Mr. G.K.Mohanty, learned Addl. Government Advocate, on the contrary, while supporting the judgments passed by the Courts below, submitted that there is absolutely no reason to disbelieve the evidence of P.W.1, Excise Constable who has proved the sei¬zure. He further submitted that it is clear from the evidence of the Sub-Inspector of Excise, P.W.2 that the liquid seized was tested by him by both litmus paper test and by hydrometer and was found to be I.D.liquor and it is also clear from the evidence of P.W.2 that he has twenty years of departmental expertise in conducting the test to identify liquor and there is no reason to disbelieve the evidence adduced by the prosecution which proves beyond reasonable doubt that the petitioner is guilty of offence under Section 47(a) of the Bihar and Orissa Excise Act, 1915.

5. I have perused the judgments of both the Courts below and the evidence adduced by the prosecution witnesses. I find that even though the prosecution has alleged that the petitioner was selling I.D.liquor when the seizure was effected, strangely, no independent witnesses to the search and seizure have been produced by the prosecution. If the allegation of the prosecution regarding the act of selling I.D.liquor is accepted, the same would presuppose that some person or persons was/were either purchasing or purchasing and consuming the liquor sold by the accused. But, neither statement of any such person has been recorded nor any such person has been produced as prosecution witness. It is no doubt true that the evidence of official witness can be relied upon in a given case. As because P.W.1 was working as a constable in the Excise Department, the same is not a ground to disbelieve his testimony. It is revealed from the record that the liquid seized was never subjected to chemical test. Except the bare statement of P.W.2 that he tested the seized liquid by litmus paper which turned red and also measured the density of the said liquid by hydrometer test, that does not prove conclusively that the liquid