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2004 DIGILAW 501 (ORI)

KRUSHNA CHANDRA BEHERA v. STATE OF ORISSA

2004-11-17

L.MOHAPATRA

body2004
JUDGMENT : L. Mohapatra, J. - This revision is directed against the judgment and order dated 17.4.1995 passed by the Learned Additional Sessions Judge, Kendrapara in Criminal Appeal No. 3 of 1995 confirming the judgment and order of the Learned JMFC, Kendrapara passed in 2(a) CC No. 17 of 1993 convicting the Petitioners for commission of offences u/s 47(a) and (f) of the Bihar and Orissa Excise Act and sentencing them to imprisonment for a period of six months and fine of Rs. 500/- each in default under further R.I. for one month. 2. Case of the prosecution is that the Petitioner No. 1 is the husband of Petitioner No. 2 and they were living together in their house in village Nuapada. On 17.10.1992 at about 9 A.M.P.W. 3 Excise Sub-Inspector and P.W. 2-Excise Constable while on patrol duty got reliable information that the Petitioners are in possession of I.D. liquor and distillation materials in their house. On receiving such information, a raid was conducted and during raid two plastic jars each containing 5 liters of I.D. liquor were recovered from the bed room of the Petitioners. Apart from the above, eleven numbers of earthen pots each containing twenty litters of fermented molasses was found from the fenced bari of the Petitioners. After seizure of the same and after conducting the required tests, investigation was taken up and charge-sheet was submitted for commission of the aforesaid offences. 3. The Learned JMFC, Kendrapara on consideration of the evidence placed before him convicted the Petitioners for commission of the offences as aforesaid. The Petitioners preferred an appeal which was also dismissed giving rise to this revision. 4. Shri Sahoo, Learned Counsel for the Petitioners drew attention of the Court to the evidence adduced before the Trial Court by the prosecution and submitted that out of three witnesses examined, P.W. 1 who is supposed to be an independent witness did not support the prosecution case. P. Ws. 2 and 3 are official witnesses and if their deposition is perused it will be found that there is no material on record to show that the seized I.D. liquor was kept in the house of the Petitioners with their knowledge. Shri Sahoo, Learned Counsel for the Petitioners also submitted that hydrometer test done by the P.W. 3 cannot be accepted as the chart was not produced in the Court. 5. Shri Sahoo, Learned Counsel for the Petitioners also submitted that hydrometer test done by the P.W. 3 cannot be accepted as the chart was not produced in the Court. 5. Learned Counsel for the State, on the other hand, submitted that in absence of evidence in the case of this nature, the Court ordinarily rely on evidence of the official witnesses and same having been accepted by both the Courts below, there is no reason for this Court to interfere in a revision. 6. P.W. 2 is the Excise Constable who participated in the raid. In his deposition, he has stated that two plastic jars each containing five liters of I.D. liquor were seized from the bed room of the Petitioners. Apart from the above, from the bari of the Petitioners, 11 numbers of earthen pots, each containing 20 liters of Molasses Wax were seized. Similar is also the statement of P.W. 3. Nothing has been brought out in cross-examination to disbelieve these two official witnesses. There is no explanation from the side of the accused persons as to how I.D. liquor could be stored in their bed room in two plastic jars. Apart from the above, P.W. 3 has stated that he had seven years experience and he could say that the jars contained I.D. liquor from his experience. In view of such evidence, I do not find any reason to disturb the concurrent findings arrived at by both the Courts below. 7. However, from the record it appears that both the Petitioners are more than 60 years of age and there is nothing on record to show that they were involved in commission of such offence earlier. In similar circumstances, this Court in the case of Smt. Radha Sahuani v. The State reported in (1998) 15 OCR 351 imposed fine and also directed for execution of bond u/s 4 of the Probation of Offenders Act. In the above reported case, the accused was aged about 60 years of age and there was no previous conviction for a same and similar offence. Considering the ratio of that decision, I am of the view that same can be applied to the facts of the present case. 8. Accordingly, while maintaining conviction u/s 47(a) and (f) of the Bihar and Orissa Excise Act, I modify the sentence to the following extent. Instead of fine of Rs. Considering the ratio of that decision, I am of the view that same can be applied to the facts of the present case. 8. Accordingly, while maintaining conviction u/s 47(a) and (f) of the Bihar and Orissa Excise Act, I modify the sentence to the following extent. Instead of fine of Rs. 500/- each, the Petitioners shall liable to pay fine of Rs. 1000/- each. Both the Petitioners shall execute bond u/s 4 of the Probation of Offenders Act for an amount of Rs. 5000/- each with one solvent surety each for the like amount to the satisfaction of the Trial Court undertaking therein not to commit any other crime and shall keep peace and be of good behavior for a period of two years. If the Petitioners execute such bond, they shall remain under active supervision of the concerned officers under the P.O. Act. The sentence of imprisonment is set aside. 9. The revision is disposed of with the aforesaid modification of sentence. Revision disposed of.