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2025 Supreme(Online)(Ori) 1209
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 203 of 2006 An application under Section 397 read with Section 401 of the Code of Criminal Procedure challenging the judgment and order dated 03.11.2000 (27.11.2000) of learned Judicial Magistrate First Class, Jajpur Road in 2(a) C.C. Case No.18 of 1991 (Trial No. 176 of 1991) and the judgment and order dated 08.03.2006 of learned Adhoc Addl. Sessions Judge (Fast Track Court), Jajpur in Criminal Appeal No. 22 of 2000.
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Madhab Das @ Madhab Chandra Das ..… Petitioner -versus-
State of Orissa .. … Opp. Party --------------------------------------------------------------------------- For Petitioner : Mr. Ratnakar Samantsinghar, Adv.
For Opp. Party : Mr. M.R. Mishra, A.S.C.
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CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
Insufficient corroboration and evidence led to the reversal of conviction; reliance on unverified witness expertise deemed inadequate.
Headnote:This application under Section 397 and 401 of the Criminal Procedure Code challenges the order dated 08.03.2006 confirming the conviction under Section 47(a) of the Bihar and Orissa Excise Act. The appellant was convicted for possession of I.D. liquor, but the court questioned the reliability of evidence due to lack of chemical testing. The primary findings were that the evidence relied upon was insufficient to sustain a conviction based solely on litmus and hydrometer tests, which were deemed inadequate. The main issue being whether the evidence was sufficiently corroborated in the absence of an independent witness. The court emphasized the necessity of proper training and qualification of the witness. The conviction was ultimately set aside, and the criminal revision was allowed.
JUDGMENT
30.05.2025
Savitri Ratho, J
This application under Section 397 read with Section 401 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 08.03.2006 passed in Criminal Appeal No. 22 of 2000 by the learned Adhoc Addl. Sessions Judge (Fast Track Court), Jajpur confirming the judgment and order dated 03.11.2000 (27.11.2000) passed by the learned Judicial Magistrate First Class, Jajpur Road in 2(a) C.C. Case No.18 of 1991 (Trial No.176 of 1991), convicting the petitioner under Section 47 (a) of the Bihar and Orissa Excise Act and sentencing him to undergo R.I. for six months and to pay a fine of Rs.500/-, in default to undergo R.I. for 15 days by judgment. PROSECUTION CASE
2. The prosecution allegation in brief is that on 22.01.1991 at about 8.30 a.m., while P.W.2, the S.I. of Excise Dolipur was performing the patrolling duty at Laxmi Bazar, he found the petitioner was coming on the road holding a plastic jerrican containing ten litres of I.D. liquor. He measured it and tested it with blue litmus paper which turned red and hydrometer test. From his service experience and the tests, he confirmed that it was I.D. liquor. Thereafter he seized the liquor and prepared seizure list at the spot in presence of the witnesses. He also supplied a copy of seizure list to the petitioner. He arrested the petitioner and released the petitioner on bail and after completion of investigation the S.I. of Excise submitted P.R. against the petitioner under Section 47 (a) of the Bihar and Orissa Excise Act .
DEFENCE PLEA
3. The plea of the petitioner was one of the complete denial.
WITNESSES AND EXHIBITS
4. To prove its case, the prosecution examined two witnesses and proved the seizure list as Ext.1. No witness was examined by the defence, nor any document exhibited.
P.W.1 Bishnu Ch. Swain is the independent witness. He did not support the prosecution case. He stated that he does not know anything about the seizure of liquor from the petitioner.
P.W.2 Riaj Ahmed Beg is the Sub-Inspector of Excise as well as the Investigating Officer of the case and he has stated that he has tested the I.D. liquor by using hydrometer test and blue litmus paper and proved that the strength of liquor was 55 degree U.P. He has produced the plastic jerrican in Court and it is marked as M.O.1. During cross-examination, he admitted that he has not sent the liquor for chemical test. He stated that on account of experience of 5 years in excise service he was confirmed that the liquor was I.D. liquor.
TRIAL COURT JUDGMENT
5. After analyzing the evidence of the witnesses on record, the learned trial Court stated that this type of offence is rampant and now a days the teen agers were taking liquor for which they are committing many higher offences in our society. It declined to released the accused under the Probation of Offenders Act, observing that if the accused was released under the P.O. Act, it will encourage others to commit such type of offence. Considering the age of the convict as well as the quantity of liquor seized from his possession, convicted him and sentenced him to imprisonment for six months R.I. and to pay fine Rs.500/-, in default to undergo R.I. for 15 days.
APPELATE COURT JUDGMENT
6. The learned Appellate Court dismissed the appeal confirming the conviction and sentence of the petitioner. It referred to the decision in the case of Bharat Sahu vs. Stae of Orissa : 1990 (70) CLT 47 , wherein I.D. liquor had not been put to chemical analysis, but it was held that blue litmus paper test and hydrometer test were sufficient to establish that I.D. liquor was recovered from the possession of the petitioner. On the basis of service experience of P.W.2 and other tests conducted by him, even if the substance had not been sent for chemical examination, it can safely be inferred that I.D. liquor was recovered from the conscious possession of the petitioner. The Court did not find any reason to take a view contrary to that of the lear
