The conviction for possession of illicitly distilled liquor could not be sustained based solely on the evidence of official witnesses who were part of the raiding party, especially when there were contradictions in their evidence. The absence of an independent witness to the search and seizure and the lack of chemical analysis of the seized liquor raised doubts about the prosecution's case.

JUDGMENT :

P.K. Misra, J. - The petitioner was convicted by the trial Court u/s 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 u/s 47 (a), Bihar and Orissa Excise Act, had been committed.

3. The plea of the accused was one of denial. Apart from the Sub-Inspector of Excise, who was examined as P.W. 1, the two Excise Constables who were witnesses to the seizure were examined as P.Ws. 2 and 3. The order of conviction is based on the evidence of P.Ws. 1 to 3 who are all members of the raiding party.

4. 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.

The learned counsel appearing for the State has submitted that the findings of fact recorded by both the Courts below should not be disturbed in exercise of revisional jurisdiction and it is not always necessary for the prosecution to undertake a chemical analysis of the seized material where on the basis of other tests and opinion of the seizing official, the nature of the seized material can be proved.

5. It is claimed by the three witnesses that the seizure took place near Haldipali Chhak. P.Ws. 1 and 2 claim that all of them were on patrol duty at the relevant time. It is stated by them that they had gone to the place of seizure in a private jeep belonging to a private citizen. This evidence of P.Ws. 1 and 2 has been seriously contradicted by P.W. 3, who has stated, "We were going with cycles,...". Moreover, if the excise officials including P.W. 1 were on patrol duty, it is not understood as to why a private vehicle had been utilised. Neither the owner of the private vehicle, nor the driver of the vehicle had been examined to support such a contention of the prosecution. In view of such contradictory material, the absence of independent witness to the search and seizure assumes more importance. The evidence of P.W. 1 gives the impression as if the place of seizure was a lonely place where no other witness was available. If that would have been so, it would be futile to expect that there would be independent witness to the search and seizure. However, such evidence of P.W. 1 appears to be contradicted by the evidence of P.Ws. 2 and 3. Though P.W. 1 stated that there was no petrol pump near the place of seizure, P.W. 2 has categorically stated that one petrol pump was there near the spot. Even he has further claimed that they had gone to call the petrol pump owner and other villagers, but they did not turn up. P.W. 3 also claims that they had called wit