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THE HIGH COURT OF ORISSA AT CUTTACK
SIBO SANKAR MISHRA, J.
Baliram Halwa – Petitioner
Versus
State of Orissa - Opposite Party
CRLREV No.271 of 2011
Decided On : 16-07-2024
Excise - Bihar and Orissa Excise Act - Sections 47(a), 47(h) - The court upheld the conviction of the accused under Section 47(h) of the Bihar and Orissa Excise Act for illegally distilling and possessing illicit liquor. However, the court extended the benefit of the Probation of Offenders Act instead of sentencing the accused to imprisonment.
Fact of the Case:
The accused was found preparing illicit liquor near a forest adjoining a village. Excise officials seized various items used for liquor production from the accused's exclusive possession. The accused was charged under Section 47(a) and 47(h) of the Bihar and Orissa Excise Act.
Finding of the Court:
The courts below convicted the accused under Section 47(h) of the Bihar and Orissa Excise Act based on the testimonies of the excise officials and the documentary evidence. The High Court upheld the conviction but extended the benefit of the Probation of Offenders Act instead of sentencing the accused to imprisonment.
Issues: Whether the accused was rightly convicted under Section 47(h) of the Bihar and Orissa Excise Act?
Ratio Decidendi: The evidence of the excise officials, corroborated by the documentary evidence, was found reliable and trustworthy to establish the guilt of the accused under Section 47(h) of the Bihar and Orissa Excise Act. The absence of independent witnesses did not affect the prosecution's case, as the law allows conviction based on the testimony of official witnesses if it is reliable and consistent.
Final Decision: The accused is released under Section 4 of the Probation of Offenders Act for a period of one year.
JUDGMENT :
S.S. Mishra, J.
The present Criminal Revision filed under Sections 401 read with Section 397 of Cr.P.C. is directed against the judgment and order dated 28.02.2011 passed by the learned Addl. Sessions Judge (FTC), Malkangiri in Criminal Appeal No.44 of 2008, whereby the judgment of conviction and order of sentence passed by the learned Chief Judicial Magistrate, Malkangiri in 2(a) CC No.18 of 2007/T.R. No.10 of 2008 has been confirmed.
2. The Petitioner was subjected to prosecution in 2(a) CC No.18 of 2007/T.R. No.10 of 2008 registered under Section 47(a) of the Bihar & Orissa Excise Act.
3. The prosecution case in brief is that on 11.06.2006 at 9.30 a.m., near a small river by the side of a forest adjoining to the village Korukonda, the accused was found preparing I.D. liquor illegally by the Sub-Inspector of Excise, Malkangiri. The accused was apprehended and in presence of the witnesses, one earthen pot containing 7 litres of I.D. liquor, one aluminium pot containing 15 kgs. of fermented Mohua wash, one earthen still head, one bamboo pipe with smell of liquor and one earthen pot containing 20 kgs. of hot fermented Mohua wash were seized from the exclusive and conscious possession of the accused. The seized liquor and Mohua wash were subjected to due examination by the S.I. of Excise and even sample of seized liquor and wash were sent to the State Drug Testing Research Laboratory, Bhubaneswar. On completion of investigation, the aforesaid Excise Officer submitted Prosecution Report against the accused-petitioner under Section 47 (a) of the Bihar and Orissa Excise Act.
4. In order to substantiate its case, the prosecution has examined as many as two witnesses and seven documents have been exhibited. The plea of the defence is one of clean denial and false implication. The defence had examined two witnesses on its behalf.
5. The learned Trial Court analyzed the entire evidence on record and found that the Petitioner is guilty of the offence under Sections 47(a) of the Bihar and Orissa Excise Act and sentenced him to undergo rigorous imprisonment of one year and to pay fine of Rs.2,000/- (Rupees two thousand) for the commission of offence under Section 47(h) of the Bihar and Orissa Excise Act. In default of payment of fine, the convict was directed to undergo simple imprisonment of three months more.
6. The judgment of conviction and sentence dated 26.08.2008 passed by the learned Chief Judicial Magistrate, Malkangiri in 2(a) CC No.18 of 2007/T.R. No.10 of 2008 was called in question by filing Criminal Appeal No.44 of 2008 before the Court of the learned Addl. Sessions Judge (FTC) Malkangiri by the petitioner.
7. Having failed in his appeal, the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition.
8. Heard Mr. Asit Kumar Jena, learned counsel for the petitioner and Mr. B.K. Ragada, learned Additional Government Advocate for the State.
9. Perused the impugned judgment and order of conviction and sentence passed against the petitioner and carefully evaluated the evidence on record.
10. The petitioner stood charged for the alleged offence under Section 47(h) of the Bihar & Orissa Excise Act. The prosecution examined two witnesses only. Both the witnesses are official witnesses. P.W.1 was the Excise Constable whereas P.W.2 was the Sub-Inspector of Excise. However, the prosecution has relied upon various documents exhibited as Ext.1 to Ext.7. To disown the prosecution case, the petitioner has also led his defence evidence. The defence has examined two witnesses.
11. Learned Trial Court relying upon the testimonies of P.Ws. 1 & 2 opined that the version of the witnesses stands corroborated with the documentary evidence. Accordingly, convicted the petitioner for the offence under Section 47 (h) of the Bihar & Orissa Excise Act and sentenced him to undergo one year R.I. and to pay fine of Rs.2,000/- (Rupees two thousand) and for default of payment, three month
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