The evidence of an experienced Excise Officer is sufficient to establish the nature of the liquid, and chemical examination is not mandatory for conviction u/s 47 of the Bihar and Orissa Excise Act. Additionally, the prosecution must prove the exclusive and conscious possession of the contraband articles by the accused through independent evidence.

JUDGMENT :

S.K. Mishra, J. - In this Revision Petitioner assails his conviction u/s 47(a) and (f) of Bihar and Orissa Excise Act, 1947 (hereinafter referred to as the "Act") in judgment dated 31.07.1995 passed by learned J.M.F.C, Cuttack in 2(a) C.C. No. 156 of 1995, which has been confirmed by the learned 1st Addl. Sessions Judge, Cuttack in Criminal Appeal No. 106 of 1995 as per his judgment dated 05.08.1996.

2. In short, fact of the case is that on 15.02.1995, S.I. of Excise seized two plastic Jerrycans, one containing twenty litres and another containing four litres of I.D. liquor from the bed room of the accused. Then he conducted blue litmus paper test and Sykes hydrometer test. From his departmental experience, he came to know that such liquid to be I.D. liquor and hence, he submitted prosecution report against the accused. The defence took the plea of denial.

3. Prosecution has examined three witnesses on its behalf, whereas defence has examined two witnesses.

4. Basing on the evidence of one independent witness and two departmental witnesses, learned trial court came to the conclusion that prosecution has established his case beyond all reasonable doubt and, therefore, he convicted the accused-Petitioner for the offence u/s 47(a) of the Act and sentenced him to undergo simple imprisonment for six months and to pay fine of Rs. 500/-, in default to further undergo simple imprisonment for two months. Such conviction was upheld by the learned 1st Additional Session Judge, Cuttack in Criminal Appeal No. 106 of 1995.

5. Learned Counsel for the Petitioner mainly argued that in absence of any chemical examination report, it cannot be conclusively said that the seized liquid is I.D. liquor. He also submitted that appreciation of evidence of the departmental witnesses by the learned lower court is perverse and, therefore, it requires interference of the revisional court. Learned Addl. Standing Counsel supported the findings recorded by the trial court and prays to dismiss the revision.

6. It is now settled by a catena of decisions that chemical examination is not sine qua non for conviction u/s 47 of the Act. Even the evidence of an experienced Excise Officer is sufficient to establish the nature of the liquid and is sufficient to hold, whether the seized liquor is I.D. liquor or not. Similar view has been taken by this Court in Subas Rout and Anr. v. State of Orissa (2000) 18 O.C.R. (S.C.) 438. In that case also relying upon the evidence of the Investigating Officer, who had departmental experience, the Court held that evidence of litmus paper test and Sykes hydrometer test is sufficient to establish the case of the prosecution. In this case also, an experienced Excise Officer conducted hydrometer test and litmus paper test and has come to a conclusion that the seized liquor was the I.D. liquor. So, on that count, the prosecution case cannot be rejected.

7. Coming to the question of conscious and exclusive possession of the seized articles, prosecution relies heavily on the version of the two departmental witnesses P. Ws. 2 and 3. The only non-official witness i.e. P.W. 1 has stated that excise officials did not seize anything in his presence but he has admitted his signature on Ext.1, i.e. the seizure list. This witness has not been cross-examined by the prosecution after obtaining permission from the court u/s 154 of the Evidence Act. Thus, prosecution has not shown to the Court its intent of not relying upon the version of the said prosecution witnesses.

8. In a case u/s 47(a) of Bihar and Orissa Excise Act, conviction can be upheld if it is found that the Petitioner has proved its case beyond all reasonable doubt that the liquor has been seized from the exclusive and conscious possession of the accused. In this case, the jerrycans containing I.D. liquor were seized from a house. There is no material to come to a conclusion that the accused was residing in that house and the contraband articles were in his exclusive possession. The