JUDGMENT

B.K. PATEL, J. — This revision is directed against the judgment dated 6.4.1999 passed by the learned 2nd Additional Sessions Judge, Berhampur in Criminal Appeal No. 90 of 1997/Criminal Appeal No. 295 of 1996 GDC confirming the judgment dated 7.11.1996 passed by the learned Judicial Magistrate First Class, Chhatrapur in 2(a)C.C. No. 41 of 1993 by which the peti¬tioner was convicted under Section 47(a) of Bihar & Orissa Excise Act and sentenced him to undergo R.I. for six months and to pay a fine of Rs.500/- in default rigorous imprisonment of one month.

2. The prosecution case is that on 9.5.1993 at about 4 P.M. while P.W.1, the S.I. of Excise was performing patrolling duty near Rikapalli along with P.W.3, the A.S.I. Excise and others, the appellant was found coming with jerrican. On being searched by P.W.1, the jerrican was found containing 5 litres of I.D. liquor. P.W.1 took measurement and conducted blue litmus paper and hydrometer test of the alleged liquor and, thereafter, seized the same under seizure list Ext.-1 in presence of witness¬es including P.W.2. On completion of enquiry, prosecution report was submitted against the petitioner. In order to substantiate the allegation, prosecution examined three witnesses, P.Ws. 1 to 3 referred above. On appraisal of evidence on record, the peti¬tioner was convicted and sentenced as stated supra.

3. Learned counsel for the petitioner contended that petitioner should not have been convicted on the basis of uncorroborated testimonies of the two official witnesses only. There is no evidence on record that I.D. liquor was seized from the possession of the petitioner. The seized article as well as blue litmus paper used, and hydrometer chart prepared by P.W.1 have not been produced in Court. Learned Additional Standing Counsel supports and defends the judgment passed by the learned courts below.

4. P.W.2 has not supported the prosecution. He testified that nothing was seized from the petitioner in his presence by the Excise Officials. The conviction of the petitioner is based solely on the evidence of the two official witness, P.Ws. 1 and 3. Law is well settled that conviction can be based on the evi¬dence of official witnesses, if the same is found to be consist¬ent and credible. Even if independence witnesses do not support the prosecution, the evidence of official witness can be assessed and accepted.

5. However, it appears from the evidence of P.Ws. 1 and 2 that P.W.1 conducted blue litmus test paper and hydrometer test of the contents of the jerrican recovered from the possession of the petitioner. Neither the seized jerrican containing liquor nor blue litmus used and hydrometer chart was prepared by P.W.1 were produced in the Court. Therefore, the entire case of the prosecu¬tion depends upon oral testimonies of P.Ws. 1 and 2. P.W.1 de¬posed in cross examination that hydrometer chart was not submit¬ted with the P.R. and that he did not produce the seized article in Court. P.W.3 testified that he can not say what happened to the blue litmus paper. Therefore, obviously, the prosecution has conducted the enquiry in a most perfunctory manner. Prosecution has not come up with any explanation or justification for non-production of the seized article. Also blue litmus paper and hydrometer chart have been withheld from Court without any expla¬nation.

6. In Chandramani Sabar v. State, (1998) 14 OCR-265 and S. Dasarathi Reddy v. State*, (1998) 14 OCR-442, it has been observed that in case of this nature, where substantive sentence of im¬prisonment is compulsory after conviction, a heavy duty is cast upon the prosecution to establish the case beyond any reasonable doubt. In both the decisions it was held that non-examination of seized article by chemical analyst affects prosecution case to have been recovered I.D.liquor. In Kunjabehari Behera v. State of Orissa, (1996) 10 OCR-525 it was held that in absence of hydrome¬ter chart it would be unsafe to rely on the testimony of the witn