The main legal point established in the judgment is that the tests for identification of seized liquor as illicitly distilled liquor by blue litmus paper and hydrometer are not conclusive, and chemical analysis is the surest test for such identification.

JUDGMENT :

M. Papanna, J. - Invoking the revisional jurisdiction of this Court u/s 401 of the Code of Criminal Procedure, the petitioner calls in question the legality of the judgment passed by the learned First Additional Sessions Judge, Puri, in Criminal Appeal No. 33/94 dismissing the said appeal and thereby confirming the order of conviction of the petitioner passed by the learned J.M.F.C., Ranpur in 2(a) C.C.No. 33/92 (Tr. No. 190/92) but modifying the sentence to R.I. for three months and to pay a fine of Rs. 200/- in default to S.I. for fifteen days.

2. Bereft of unnecessary details, facts of the prosecution case are that on 11.1.1992 at 8 p.m. while the Sub-Inspector of Excise, Ranpur accompanied by two constables, was performing patrol duty near Swapneswar temple he found the accused-petitioner coming with a bladder containing I.D.liquor which he seized in presence of witnesses for having failed to produce any authority in support of such possession. On measurement the seized liquor came to 8 litres and on test by blue litmus paper and hydrometer its strength came to be 62? U.P. Ultimately PR. was submitted against the accused-petitioner on completion of investigation.

3. The defence took a plea of denial in toto.

4. The prosecution, in order to substantiate the charge against the petitioner, examined three witnesses of whom P.Ws. 1 and 2 are two excise constables whereas P.W.3 is the Sub-Inspector of Excise. On the other hand, the defence declined to adduce any evidence in support of its stand.

5. The learned trial Judge having believed the testimony of the witnesses reached a conclusion that from the conscious possession of the petitioner, I.D. Liquor, measuring 8 litres was recovered and seized for which he found him guilty of the charge u/s 47(a) of the Bihar and Orissa Excise Act and convicted and sentenced him as stated earlier.

6. On appeal the learned lower appellate Court while maintaining the order of conviction modified the sentence as above.

7. In course of hearing of the revision, learned counsel Shri N. Singh, appearing for the petitioner contended that all the witnesses examined for the prosecution being official witnesses and their evidence found to be inconsistent and highly discrepant from each other regarding the place of seizure of alleged liquor, its quantity and container and above all the alleged liquor having not been sent for chemical analysis to say definitely that it is nothing but I.D. liquor, the learned Courts below ought not to have relied upon their testimony without there being any independent corroboration. Shri M.R. Dhal, learned Addl. Standing Counsel refuted the contention saying that in view of the concurrent findings of the Courts below, there is no scope for the revisional Court to re-appreciate the evidence of the P.Ws. on record and accordingly he has fully supported the impugned order of conviction and sentence passed against the petitioner.

8. The aforesaid contention raised by the learned counsel for both the sides need careful examination. No doubt while sitting in a Court of revision ordinarily there is no scope for appreciation of evidence but the revisional Court is not prevented from making analysis of the available evidence on record particularly when the appellate Court has failed in its duty by making an independent analysis of the same. Reliance can be placed on (1999) 16 OCR 185 (Laxmidhar Behera v. State of Orissa) wherein His Lordship Hon'ble Justice Mr. P.K.Mishra of this Court has taken the following view :

"It is true that the revisional Court ordinarily does not sit as an appellate Court in the matter relating to appreciation of evidence. In the present case, it appears that the trial Court has simply adverted to the prosecution case and the statements of the prosecution witnesses without trying to analyse the various contradictions in their evidence. If the appellate Court would have applied its independent mind and come to a conclusion regarding the truth of the pr