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2024 Supreme(Online)(ORI) 139
ORISSA HIGH COURT
Sibo Sankar Mishra, J
GOBIND ARUKHA – Appellant
Versus
STATE – Respondent
CRLREV
Ms. Anima Dei (Amicus Curiae), Mr. B.K. Ragada, Additional Government Advocate
Conviction under the Excise Act cannot be based solely on the testimony of official witnesses without supporting scientific evidence, such as a chemical examination report.
Headnote:
Excise - Bihar and Orissa Excise Act - Sections 47(a) - Conviction based on official witness testimony without chemical examination report not sustainable
Fact of the Case:
The petitioner was found in possession of 32 bottles of Rum and 5 bottles of Beer, which were seized by the Excise Constable. The petitioner was charged under Section 47(a) of the Bihar and Orissa Excise Act. The trial court convicted the petitioner based on the testimonies of the official witnesses, despite the lack of a chemical examination report. The petitioner challenged the conviction in appeal and revision.
Finding of the Court:
The High Court held that the prosecution had failed to prove the case conclusively, as the seizure was not adequately proved and the lack of a chemical examination report was fatal to the prosecution's case. The courts below had erred in relying solely on the testimony of the official witnesses to conclude that the seized articles were liquor.
Issues: Whether the conviction of the petitioner under Section 47(a) of the Bihar and Orissa Excise Act can be sustained in the absence of a chemical examination report.
Ratio Decidendi: The High Court relied on the judgment in Suma Das v. State of Orissa, which held that while chemical examination is not always necessary, the prosecution must establish the experience and training of the officers conducting the tests to prove the nature of the seized articles. In the absence of such evidence, the prosecution case cannot be sustained.
Final Decision: The High Court set aside the conviction and acquitted the petitioner.
S.S. Mishra, J. The present Criminal Revision filed under Sections 401 and 397 of Cr.P.C. is directed against the judgment and order dated 06.12.2001 passed by the learned Adhoc Addl. District & Sessions Judge, Fast Track Court No.III, Cuttack in Criminal Appeal No.50 of 1995, whereby the judgment of conviction and order of sentence dated 25.03.1995 passed by the learned J.M.F.C.(R), Cuttack in 2(a) C.C. Case No.102 of 1993 has been confirmed.
2. The prosecution case in brief is that on 16.07.1993 at about 6.30 P.M. the petitioner was found going in a Luna from Manguli towards Nirgundi. He was detained by the Constable of Excise on suspicion in presence of witnesses. He searched the Luna and found one Tarpolin bag containing one cartoon. On further search, the cartoon was found to have contained 32 bottles of XXX Rum and five bottles of Beer. On demand the petitioner failed to produce any authority or licence for such possession. Therefore, it was seized by the Constable of Excise along with the Luna. Thereafter the Constable Dibakar Naik produced the seizure list, seized articles and the accused-petitioner before the S.I. of Excise. The S.I. of Excise examined the seal and label of each bottle and he came to a conclusion that the seized articles are I.M.F.L. Then he sealed the cartoon. The Luna was released on zima of one Rabindra Rout who is the owner of the same. After observing due formalities, later on, the S.I. of Excise submitted P.R. under Section.47 (a) of the Bihar and Orissa Excise Act against the petitioner. 3. The Petitioner stood charged for alleged offence punishable under Section 47(a) of the Bihar & Orissa Excise Act. 4. The prosecution in order to prove its case had examined as many as three witnesses in support of its case, whereas the defence examined none. P.W.1 was the Constable of Excise who seized 32 bottles of Kissan Rum and five bottles of Beer from the possession of the petitioner under seizure list Ext.1. P.W.2 was independent seizure witness whereas P.W.3 was the S.I. of Excise. It is admitted fact on record that the seized articles were not sent for chemical examination. P.W.2 in his testimony had also denied the knowledge of seizure. Therefore, seizure is not adequately proved on record. The trial court found the petitioner guilty for alleged offence under Section 47(a) of the Bihar and Orissa Excise Act only relying upon the testimonies of the official witnesses namely P.Ws.1 and 3. While dealing with the factum of non-production of the chemical examination report, the Trial court recorded as under:
- “7. The next submission made on behalf of the accused is that the seized articles were not sent for chemical examination and the chemical examination is the surest test. He also submitted that from the lable, the SI of excise could know that it was liquor. In this regard, he relied on a decision reported in 33-1967 C.L.T. at page 1192 (Udayanath Tripathy-Vrs-State). In the aforesaid decision, it is held that the chemical examination is a surest test. But in that case the accused has taken a plea that he imported bottles from Andhra Pradesh as medicines. In such a situation of course, the chemical examination is necessary. So far as this case is concerned the accused has not taken any such plea but he has emphatically denied the prosecution allegation in his examination u/s 313 Cr.P.C. It will not be out of the place to note here that in a decision of the Honourable High Court reported in 1994-4 O.C.R. at page 554 (R.C. Prasad-Vrs-State), it is held that even if there is no chemical examination to know whether the seized articles is liquor and other exciseable articles or not, the Court can fall back upon other evidence on record. Thus it is to be seen whether the evidence of the prosecution witnesses are acceptable in the absence of chemical examination.”
5. The judgment of conviction and sentence passed by the learned J.M.F.C.(R), Cuttack in 2(a) C.C. Case No.102 of 1993 against the petitioner was
