IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 250 of 2006 An application under Section 401 of the Code of Criminal Procedure challenging the judgment and order dated 08.08.2002 of learned S.D.J.M., Rayagada in 2(a) CC No.95 of 1997 (T.R. No. 1600 of 1997) and the judgment and order dated 07.03.2006 of learned Addl. Sessions Judge, Rayagada in Criminal Appeal No.45 of 2002.

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Goriamani Bhatra ..…. Petitioner -versus-

State of Orissa …… Opp. Party ---------------------------------------------------------------------------

For Petitioner : Mr. Arun Ku. Acharya, Adv.

For Opp. Party : Mr. M.R. Mishra, A.S.C.

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CORAM:

HONOURABLE MISS JUSTICE SAVITRI RATHO

JUDGMENT

30.05.2025 Savitri Ratho, J This application under Section 401 of the Code of Criminal Procedure has been filed challenging the judgment and order dated 07.03.2006 passed in Criminal Appeal No. 45 of 2002 by the learned Addl. Sessions Judge, Rayagada, confirming the conviction of the petitioner under Section 47(a) of the Bihar and Orissa Excise Act and sentence to undergo R.I. for a period of six months and to pay a fine of Rs.500/-, in default to undergo R.I. for a period of one month by the judgment dated 08.08.2002 passed by the learned S.D.J.M., Rayagada in 2(a) C.C. No. 95 of 1997 (T.R.

No. 1600 of 1997).

PROSECUTION CASE

2. The prosecution allegation in brief is that the Excise A.S.I. of Rayagada along with his constable Trinath Das were patrolling at Rayagada town on 09.07.1997. They found the petitioner was coming carrying a motor tube at J.S. Co. Chhak. On suspicion, the A.S.I. detained the petitioner and when searched, he found the petitioner was carrying liquor in that tube. The A.S.I. of Excise examined the liquor with blue litmus paper and from the test, he came to know that it is I.D. liquor. He has measured the liquor and seized the alleged liquor under a seizure list in presence of witnesses, arrested the petitioner and produced him before the S.I. of Excise Rayagada and the S.I. examined the alleged liquor with blue litmus paper and hydro metro and opined the same to the I.D. liquor. The S.I. released him on bail and submitted prosecution report against the petitioner.

WITNESSES

3. During course of trial, in order to prove its case, the prosecution examined four witnesses.

P.W.1 Buti Khura is a non-official witness and P.W.2 Prasanna Ku. Acharya is the S.I. of Excise who examined the alleged liquor, P.W.3 Haribandhu Gadaba is the A.S.I. of Excise, Rayagada, who seized the alleged liquor from the possession of the petitioner and P.W.4 Trinath Das is the excise constable as well as a seizure witness who accompanied P.W.3.

4. The prosecution exhibited one document which is the report of P.W.2.

5. The defence plea was complete denial and false acquisition and no witness was examined on behalf of the defence.

TRIAL COURT JUDGMENT

6. The learned trial Court on analysis of the materials and evidence on record came to a conclusion that the prosecution had proved its case under Section 47(a) of Bihar and Orissa Excise Act and accordingly he convicted him thereunder and the petitioner was sentenced to undergo R.I. for six months and fine of Rs.500/-, in default of payment of fine further R.I. for one month.

APPELLATE COURT JUDGMENT

7. The learned Appellate Court stated that the evidence clearly established the seizure of a motor tube containing I.D. liquor from the exclusive and conscious possession of the petitioner. Hence adverse interfence cannot be drawn for non- production of the seized articles in the Court and after analyzing the reasoning given by the learned trial Court, the learned Appellate Court finds that there is no reason to interfere with the judgment passed by the trial Court and the trial Court has also awarded sentence very liberally and there is also nothing to interfere with the said finding. As such, there is no merit in the appeal and the judgment of conviction and sentenc