Conviction for illicit liquor possession cannot be based solely on non-chemical tests; lack of adequate evidence warrants acquittal.

JUDGMENT :

AVITRI RATHO, J.

1. Ulaka Raisulu has filed this Criminal Revision challenging the judgment and order dated 17.08.2005 passed by the learned Additional Sessions Judge, Rayagada in Criminal Appeal No. 39 of 2004 confirming the judgment passed by learned S.D.J.M., Gunupur in 2(a) C.C. Case No. 36 of 2001/ T.R. Case No. 125 of 2001, convicting him for commission of the offence under Section 47 (a) of the Bihar and Orissa Excise Act and sentencing him to undergo R.I. for two years and to pay a fine of Rs.5000/- in default to undergo R.I. for six months, subject to set off.

2. The prosecution case in short is that on 09.11.2000 at 8 A.M., the S.I. of Excise Gunupur along with his staff had been to Ramanaguda on patrol duty. At Parikhiti chhaka, they noticed that the accused was holding a plastic jerrican. On suspicion, they detained him and recovered the plastic jerrican from the exclusive possession of accused and found it contained 7 litres of liquor in presence of available witnesses. The S.I. tested the liquor by means of blue litmus paper and hydrometer and ascertained that the said liquor was I.D. liquor. Since the accused did not possess any licence or authority for such possession, the S.I. seized the plastic jerrican with the I.D. liquor and prepared the seizure list at the spot and served a copy of it on the accused. After completion of investigation, he submitted prosecution report.

3. In order to prove its case, prosecution has examined three witnesses. P.W.1 Santosh Kumar Sethi is the Excise Constable, P.W.2 Narayana Bisoi is the S.I. of Excise and P.W.3 Padmanava Behera is an independent witness. The defence did not examine any witness.

4. P.W. 1 has stated that on 09.11.2000 at about 8.00 A.M., he along with P.W.2 had been to village Ramanaguda for performing patrol duty. At Parikhiti junction, they found the accused was coming with a plastic jerrican containing 7 litres of I.D. liquor. So the S.I. of Excise seized the same from the possession of the accused in his presence as per the seizure list, Ext. 1. He proved his signature Ext.1/1. The S.I. of Excise tested the seized liquor by means of blue litmus paper and hydrometer and arrested the accused and released him on bail.

P.W. 2-Narayana Bisoi, who is the S.I. of Excise and the complainant and I.O. has stated that on 09.11.2000, while he along with his staff had been to village Ramanaguda for performing patrol duty, they found the accused was standing at Parikhiti junction near Ramanaguda village. He detained the accused on suspicion and on search, he recovered one plastic jerrican containing 7 litres of I.D. liquor from his possession. Since the accused failed to produce any licence or authority to support such possession, he seized the same from the possession of the accused in presence of the witnesses as per the seizure list Ext.1. He proved his signature Ext.1/2. He stated that he tested the seized liquid by means of blue litmas paper which turned into red colour. By hydrometer test, he determined its strength as 79.6 degree U.P. From the above tests, smell, colour and his departmental service experience and as he had undergone training in distilley, he came to know it to be I.D. liquor. He handed over a copy of the seizure list to the accused. He arrested the accused and released him on bail. After completion of enquiry, he submitted P.R. against the accused. M.O.I. is the seized plastic jerrican which contained the I.D. liquor.

P.W.3-Padmanava Behera, who is an independent witness who has not supported the prosecution case and has stated that the Excise babu seized nothing in his presence. But on the direction of th