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2003 DIGILAW 271 (ORI)

Bisurnarayan Behura v. State of Orissa

2003-04-02

A.S.NAIDU

body2003
JUDGMENT A. S. NAIDU, J. — This Criminal Revision has been filed challenging an order dated 30th December, 1996 passed by the 2nd Addl. Sessions Judge, Puri in Criminal Appeal No.36/119 of 1995/96 confirming an order of conviction and sentence dated 27.7.1994 passed by the J.M.F.C., Puri in 2(a) CC No. 536 of 1993. The petitioner has been convicted under Section 47 (f) of the Bihar and Orissa Excise Act and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 500.00, in default to undergo further simple imprisonment for one month. 2. Prosecution came up with a case that at about 10.30 a.m. on 13.10.1993 while the S.I. of Excise, Puri Sadar was patrolling at Balinolia Sahi (Upper Sahi) along with his staff, receiving reliable information about illicit distillation of liquor by the petitioner in his house, caught him red-handed while he was engaged in such illicit distillation of liquor using one aluminium Dekchi containing twenty litres of hot formented Gur-wash, one earthen pot having a hole at its bottom with a wooden cross, one small aluminium Dekchi containing two litres of hot I.D. liquor and another aluminium Dekchi containing hot water. It was stated that on examination of the liquid found in the aluminium Dekchi by litmus paper and also after conducting hydrometer test, the same was found to be I.D. liquor. After completion of investigation and on being satisfied that the peti¬tioner had committed offence under Section 47 (a) and (f) of the Bihar and Orissa Excise Act, prosecution was launched which was registered as 2(a) CC No.536 of 1993 in the Court of the J.M.F.C., Puri. The defence took the place of denial. 3. To prove its case, prosecution examined three witnesses and exhibited certain documents besides producing the material objects. The defence did not examine any witness. 4. After a vivid discussion of the evidence, both oral and documentary, the trial Court arrived at its subjective satis¬faction that the petitioner was caught red-handed while engaged in the process of illicit distillation of liquor and therefore found him guilty of the charge under Section 47(f) of the Bihar and Orissa Excise Act and convicting him thereunder sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs. 500.00, in default to S.I. for one month more. 500.00, in default to S.I. for one month more. The submission made on behalf of the petitioner with regard to extending the benefit of the Probation of Offenders Act was turned down on the ground that the offence of preparing illicit liquor was against the society and the illicit liquor is a horror for the national health. 5. The appeal preferred by the petitioner against the order of his conviction and sentence was dismissed and the con¬firming appellate order is impugned in this revision. 6. Learned counsel for the petitioner, relying on the decision reported in Girish v. State of Orissa*, (1994) 7 OCR 22, forcefully contended that the Courts below acted illegally and with material irregularity in not extending the benefit of the Probation of Offenders Act to the petitioner. In the said case it appears that a report was called for from the Probation Officer and after perusal of the same, the provisions of the said Act were directed to be extended. But then, the present case relates to the year 1993. The order of conviction and sentence was passed in 1994 and was confirmed in 1996. This Criminal Revision was preferred in 1996. Calling for a report from the Probation Offi¬cer at this belated stage would not in any way be beneficial or to meet the ends of justice. 7. The other ground raised by the learned counsel for the petitioner is that Gur-wash is not illicit liquor and in this case the provisions of Section 74(f) of the Bihar and Orissa Excise Act are not applicable. A perusal of the evidence clearly reveals that the petitioner was caught red-handed while he was engaged in manufacture of illicit liquor. Apart from the utensils used for that purpose, a container with twenty litres of hot formented I.D. liquor was seized from the premises of the petitioner and on examination of the liquid with litmus paper it was confirmed that the same was I.D. liquor. It also appears from paragraph-6 of the trial Court judgment that the contents were examined by Siko’s hydrometer set and the strength of liquor was found to be 52.50 U.P., temperature as 880 F and indication as 80.6. The aforesaid tests clearly established that what the petitioner was manufac¬turing was I.D. liquor. 8. It also appears from paragraph-6 of the trial Court judgment that the contents were examined by Siko’s hydrometer set and the strength of liquor was found to be 52.50 U.P., temperature as 880 F and indication as 80.6. The aforesaid tests clearly established that what the petitioner was manufac¬turing was I.D. liquor. 8. After going through the materials available, according to me, the findings arrived at by the trial Court, confirmed in appeal, do not suffer from any error of law apparent on the face of the record and I am not inclined to interfere with the order of conviction. But then, the fact remains that no steps were taken by the prosecution to ascertain the antecedent of the petitioner. In the absence of such evidence, it is presumed that the petitioner was involved in such incident for the first time and it is to be kept in mind that the occurrence was of the year 1993. About ten years have passed in the meanwhile. After consid¬ering the entire facts, as a special case, I modify the sentence and direct the petitioner to undergo simple imprisonment for a period of one month and to pay a fine of Rs. 1,000.00 (one thou¬sand), in default to undergo simple imprisonment for one month more under Section 47(f) of the Bihar and Orissa Excise Act. The Criminal Revision is accordingly allowed. Revision allowed.