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2000 DIGILAW 49 (ORI)

SUBAS ROUT v. STATE OF ORISSA

2000-01-28

R.K.PATRA

body2000
JUDGMENT : R.K. Patra, J. - The Petitioners are two in number. Each of them has been convicted u/s 47(a) of the Bihar and Orissa Excise Act, 1915 and sentenced to undergo S.I. for one year and to pay fine of Rs. 1000/- in default to undergo S.I. for another two months. 2. At the time of admission of this revision, this Court had issued notice of enhancement of sentence. 3. Case of the prosecution is that on 10-9-1987 p. w. 3, the Inspector of Excise was on mobile duty. Having learnt that Petitioner No. 1 Subas Rout had been illegally trafficking in i.d. liquor in an Ambassador car bearing registration number M.R.N. 7936, he along with his staff waited at Choudwar. At about 8.50 p.m., he noticed that the said car was coming from the Paper Mill side and proceeded towards Manguli chhak. P. w. 3 chased the car by department jeep and detained it at Manguli chhak. Petitioner No. 1 was driving the car. On search, a total quantity of 410 litres of id. liquor was recovered from the car. 4. Plea of the Petitioners was one of denial. 5. On behalf of the prosecution, four witnesses were examined. P. ws. 1 and 2 were the seizure witnesses but both of them denied their knowledge about the occurrence. P. w. 3 is the Inspector who stated about the manner of chasing and seizure of the i.d. liquor in question. P. w. 4 is the Sub-Inspector of Excise. He stated that the seized liquor was tested by blue litmus paper which turned to be red. He also conducted Sykes Hydrometer test and found the strength of the seized liquor to be 55? U.P. having an indication of 82.2 and temperature of 86? F. R. 6. Peritioner No. 2 is the father of Petitioner No. 1. He has been convicted merely because he was the owner of the car. The basis for his conviction is unwarranted. Hence his conviction and serltence are uncalled for and are hereby set aside. 7. So far as Petitioner No. 1 is concerned. p. ws. 3 and 4 have clearly deposed that he was driving the car and was interpreted. P. w. 4 in his evidence stated that after conducting the litmus test and Sykes hydrometer test, he tested a small quantity of the liquor. 7. So far as Petitioner No. 1 is concerned. p. ws. 3 and 4 have clearly deposed that he was driving the car and was interpreted. P. w. 4 in his evidence stated that after conducting the litmus test and Sykes hydrometer test, he tested a small quantity of the liquor. He asserted that he had eight years experience in the department and distillary training and from the aforesaid test conducted by him, he could know that the seized liquor was i.d. liquor. 8. Shri Mohanty contended that as there was no chemical test, it cannot be conclusively held that the seized liquor was i.d. liquor. In Khetramohan Nayak Vs. State of Orissa it has been held that the hydrometer test is not an accurate test as it tells only the specific gravity or density of the liquid in which that instrument is put. The said test is not accepted by the Indian Standard Institution (I.C.I) as a sure test. In the said case even litmus test was also not conducted. Having regard to the evidence on record, the Court in that case did not rely upon the evidence of the Excise Officers in absence of any chemical examination. P. w. 4, the Sub Inspector of Excise, in this case has clearly stated that with his experience in the department and distillary training, he could know that the seized liquor was i.d. liquor. Nothing has been brought out in cross-examination to discredit his assertion. No doubt, p. ws. 1 and 2, the seizure witnesses, did not support the prosecutin but the evidence of p. ws. 3 and 4 being unassailable, the conviction of Petitioner No. 1 u/s 47(a) of the Bihar and Orissa Excise Act cannot be faulted with. 9. Having regard to the facts and circumstances, I am inclined to reduce the sentence imposed on Petitioner No. 1 by substituting the same with six months' S.I. and I so direct. 10. In the result, the conviction and sentence imposed on petitionet No. 2 Hrudaya Kumar Rout are set aside and the revision so far as it relates to him is allowed. The revision so far as it relates to Petitioner No. 1 Subas Rout is dismissed with the modification of sentence. The notice of enhancement of sentence is discharged. Revision partly allowed. Final Result : Allowed