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2025 Supreme(Online)(Ori) 1208
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 48 of 2006 An application under Section 401 Cr.P.C. 1973 arising out of the judgment and order dated 19.07.2005 passed by the learned 2 nd Adhoc Addl. Sessions Judge, Sundargarh in Criminal Appeal No. 6/48 of 2005 and the judgment and order dated 21.02.2005 passed by the learned J.M.F.C., Sundargarh in 2(a) C.C. No. 333 of 2003 (Trial No. 109 of
2004).
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Upendra Kumar @ Kumar ..…. Petitioner -versus-
State of Orissa …… Opp. Party --------------------------------------------------------------------------- For Petitioner : Mr. G.N. Sahoo, Adv. on behalf of Mr. Ajaya Kumar Nanda, Adv.
For Opp. Party : Mr. Manoranjan Mishra, A.S.C.
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CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
A conviction under the Bihar and Orissa Excise Act requires corroborative evidence beyond official testimony to establish guilt beyond reasonable doubt.
Headnote:This application under Section 401 of the Code of Criminal Procedure challenges the conviction of the petitioner under Section 47(a) of the Bihar and Orissa Excise Act, affirmed by the lower courts based on official witnesses’ testimonies which lacked independent corroboration. The court notes that reliance on expert testimony without physical evidence is insufficient to uphold criminal conviction (paragraph 12). Central issues include whether a conviction can stand when trained official witness evidence is the sole basis, and the court found insufficient proof due to lack of scientific analysis of the seized liquor (paragraph 14). Consequently, the conviction is set aside on the grounds of doubt regarding the prosecution's evidence (paragraph 16).
JUDGMENT
30.05.2025 Savitri Ratho, J.
This application under Section 401 of the Code of Criminal Procedure has been filed challenging the judgment dated 19.07.2005 passed by the learned 2nd Adhoc Addl. Sessions Judge, Sundargarh in Criminal Appeal No. 6/48 of 2005, confirming the conviction of the petitioner for commission of offence under Section 47 (a) of the Bihar and Orissa Excise Act and sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.5000/-, in default to undergo further simple imprisonment for a period of three months by the judgment and order dated 21.02.2005 passed by the learned J.M.F.C., Sundargarh in 2(a) C.C. No. 333 of 2003 (Trial No. 109 of 2004).
PROSECUTION CASE
2. The prosecution allegation in brief is that on 08.08.2003 at about 3.00 p.m. the Sub-Inspector of Excise in course of patrolling along with staff, conducted a raid in the residential house of the petitioner and on search recovered one plastic jerrycan containing 10 liters of O.S. liquor (mohuli). The Sub-Inspector tested the seized liquor by blue litmus paper which turned red and from his departmental experience and training he came to a conclusion that the recovered substance was O.S. liquor. As the petitioner failed to produce any authority in support of his possession of the seized liquor and for which the sub-Inspector prepared a seizure list wherein he obtained signature of the witnesses and the petitioner and submitted prosecution report against the petitioner to face the trial under Section 47 (a) of Bihar and Orissa Excise Act .
DEFENCE PLEA
3. The defence plea was one of complete denial and false implication.
WITNESSES
4. During course of trial, in order to prove its case, the prosecution examined two witnesses. P.W.1, Rahas Bihari Patra, is the S.I. of Excise and P.W.2, Babulu Das, is the excise constable
P.W.1 the S.I. of Excise along with P.W.2 Excise Constable, searched the house of accused on 08.08.2003 and recovered one plastic jerry bag containing 10 litres of O.S. liquor vide seizure list Ext.1. P.W.1 proved the seizure list and his signature vide Ext.1/1. It is forthcoming from the evidence of P.W.1‘ that he tested the liquor by blue litmus paper which turned red and from his departmental experience and distillery training, he came to know that the same was O.S. liquor. The evidence of P.Ws. 1 and 2, it is clear that on 08.08.2003, they searched the house of petitioner and recovered some liquor.
5. The prosecution exhibited one exhibit. Ext.1 is the seizure list.
6. No witnesses have been examined on behalf of the defence.
JUDGMENT OF TRIAL COURT
7. The learned Trial Court held his opinion that the liquor in question is O.S. liquor and it was under the occupation of other adult members, the said liquor cannot be said as recovered from the exclusive possession of the petitioner. In this context, P.Ws. 1 and 2 have categorically stated that the liquor was recovered from the possession of the petitioner. In cross-examination P.W.2 has stated that the father of petitioner was absent at the time of search and seizure. So when the petitioner was alone in the house under search, he is answerable as to how could be come to possess such liquor which was kept in his house. The accused has not shifted his burden. There is no evidence on record as to why the official witnesses would depose falsehood against the petitioner when there is no animosity with them. It can be conclusively held that the liquor was recovered and seized from the exclusive conscious possession of the petitioner.
JUDGMENT OF APPELLATE COURT
8. The learned Appellate Court stated that law is also fairly well settled that the opinion of any person specially skilled in the relevant science or art, it acceptable as expert evidence. As P.W.1 has deposed that from his departmental experience and distillery training, he could know that the liquid substance recovered from the house of the petitioner was O.S. liquor and no questions having been put t
