JUDGMENT : A.K. Padhi, J. - The Petitioner was tried for an offence u/s 47(a) of the Bihar and Orissa Excise Act, hereinafter referred to as 'the Act' by the Additional Chief Judicial Magistrate, Berhampur in 2(8) C. C. Case No. 214 of 1981 and was sentenced to undergo R. I. for six months and to pay a fine of Rs. 500/-, in default, to suffer R. I. for one month more which has been contempt by the appellate court. 2. The case of the prosecution is that on 25-6-1981 while the A. S. I. of Excise (P.W. 3) along with the Excise constable (P.W. 1) word performing patrol duty at Jhadankbuli junction, they found the Petitioner coming on a cycle carrying a plastic jar. Suspecting that the Petitioner was carrying I. D. liquor, they detained him and tested the plastic container. On test by litmus which turned to red and by smell they were of the opinion that the liquid which was being, carried in the plastic jar was I. D. liquor. P.W. 3, the A. S. I. of Excise seized the container along with the liquid under seizure list (Ext. 1) and produced the Petitioner along with the seized I. D. liquor before P.W. 4, the S. I. of Excise. P.W. 4 conducted the hydrometer test and the litmus paper and by his own experience was of the opinion that the liquid which was seized from the' Petitioner as I.D. liquor. After investigation, prosecution report was submitted u/s 47(a) of the Bihar and Orissa Excise Act and the Petitioner was tried for the above offence. 3. The plea of the Petitioner was that of total denial. 4. The prosecution examined four witnesses to bring home the charge against the accused. P.W. 3 is the A.S.I. of, Excise who was doing patrol duty along with P.W. 1, the Excise constable; P.W. 2 is the only independent witness and P.W. 4 is the S. I. of Excise who submitted the prosecution report. 5. The trial court after assessing the evidence on record has given the findings that the accused was in possession of 20 litres of I. D. liquor which has been proved by the litmus paper test and hydrometer test and with the above findings sentenced the Petitioner to undergo R. I. for six months and to pay a fine of Rs. The trial court after assessing the evidence on record has given the findings that the accused was in possession of 20 litres of I. D. liquor which has been proved by the litmus paper test and hydrometer test and with the above findings sentenced the Petitioner to undergo R. I. for six months and to pay a fine of Rs. 500/-, in default, to undergo R. I. for one month more and the appellate court has confirmed the above findings and sentence. 6. The learned advocate for the Petitioner submitted that- (a) the seizure was made by P.Ws. 1 and 3. the Excise staff which is not supported by the only independent witness (P.W. 2) ; (b) mere possession being punishable, unless the factum of seizure is proved beyond doubt the Petitioner is entitled to be acquitted; (c) as has been decided by the decisions that hydro meter test is not a sure test of liquor; (d) blue litmus paper when put into any add will turn red. Hence, litmus paper test cannot be said to be a sure test to prove that the liquid which has been seized from the Petitioner is liquor. Only when it is proved that the liquid which has been seized from the Petitioner is liquor then only to differentiate between out-still liquor and I.D. liquor litmus paper test will be a surer test; and, (e) the liquid which was seized from the Petitioner having not been produced before the court, no remedy was open for the Petitioner to prove that what was seized from him is not liquor. 7. The learned standing counsel for the State submitted that (a) since both the Courts have given the findings that the Petitioner was in possession of 20 liters of I. D. liquor, the finding of fact should not be interfered with; and (b) as has been laid down by the decisions, litmus paper test is the sure test to prove that the liquid was the I. D. liquor. 8. P.Ws. 1 and 3 are the excise staff who detained the Petitioner on the way and seized the liquor under Ext. 1. P.W. 2 is the only independent witness who had signed on the seizure list (Ext. 1). The entire evidence of P.W. 2 is quoted below: 1. I know the accused. 8. P.Ws. 1 and 3 are the excise staff who detained the Petitioner on the way and seized the liquor under Ext. 1. P.W. 2 is the only independent witness who had signed on the seizure list (Ext. 1). The entire evidence of P.W. 2 is quoted below: 1. I know the accused. About a year back in the morning while returning home, I met the excise people on the way and they took my signature on a paper. Ext. 1/2 is my signature. 2. X-examination ;-I do not know the contents of the paper, nor do I know any seizure from the accused. The above evidence proved that the Excise staff had taken the signature of p, w. 2 though he was not present at the time of -seizure and p, w. 2 has not supported the factum of seizure of the liquor from the possession of the Petitioner. This would also give an indication that p, ws. 1 and 3 have taken the signature of P.W. 2 though he was not present at the spot at the time of actual recovery. In a decision reported in State of Orissa Vs. Chandan Tola, his lordship has observed: ...The recovery and possession of the contraband -goods from the exclusive possession of the accused person being one of the essential ingredients of the offence under section. 9 of the Opium Act and Section 55 of the Bihar and Orissa Excise Act, it is not possible in this case to establish any connection between the accused and the contraband goods and to convict him of the offence he has been charged with.... In Kangali Sahu v. State Cr. Rev. No. 529/79-D/5.2.1981., (disposed of on 5-2-1981) his lordship, had interfered as the factum of seizure was doubtful as the seizure witness did not support the prosecution case. In Durbanath Behera v. State Cr. Rev. No. 129/81-D/25-6-1982, which has been disposed of on 25-6-1982 his lordship has also interfered in revision and has observed as follows: ...This would give indication that P.Ws. 3 and 4 were not present on the spot at the time of actual recovery although they were present when the seizure list was prepared. None of the two Constables who were said to be present with P.W. 6 at the time of recovery had been examined as a witness. 3 and 4 were not present on the spot at the time of actual recovery although they were present when the seizure list was prepared. None of the two Constables who were said to be present with P.W. 6 at the time of recovery had been examined as a witness. Regard being had to these infirmities and suspicious features of which due notice had not been taken by the courts below, the order of conviction recorded against the Petitioner cannot be sustained on facts and maintained in law. In Sri. Kodanda Dehuri v. State of Orissa 1988 (1) O.C.R. 287, in dealing with a case u/s 47(a) of Bihar and Orissa Excise. Act his lordship has observed that in a case of this nature where substantive sentence of imprisonment is compulsory same amount of corroboration is necessary to prove possession of the intoxicant with the Petitioner. 9. Relying on the ratio of these decisions and the fact that P.W. 2, the only independent witness has not supported the prosecution case and non-production of the seized liquor in the court though the jar has been produced. I am of the opinion that the Petitioner's possession of 20 litres of I. D. liquor- has not been proved beyond doubt. 10. The other points which are raised by the learned Counsel for the Petitioner are left open as the Petitioner is entitled to acquittal on my first finding. 11. The Criminal Revision is allowed and the Petitioner is acquitted. The bail bond is cancelled. If the Petitioner has paid any fine, the same shall be returned to him. The cycle which had been seized and given in the zima of one Surya Narayan Panigrahi shall be returned to the Petitioner. 12. Revision allowed. Final Result : Allowed