Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 494 (ORI)

Kabiraj Sethi v. State of Orissa

2008-07-01

B.K.PATEL

body2008
JUDGMENT B.K. PATEL, J. — By the judgment passed in 2(a) C.C. Case No.5 of 1993 (Trl. No.76 of 1993) by the learned S.D.J.M., Hin¬dol, the petitioner was convicted for commission of offence under Section 47 (f) of the Bihar and Orissa Excise Act and sentenced to undergo R.I. for six months and to pay a fine of Rs. 500/- in default to undergo R.I. for one month. In the impugned judgment passed by the learned Sessions Judge, Dhenkanal-Angul, Dhenkanal in Criminal Appeal No.86 of 1993, the conviction of the petition¬er was upheld but the sentence was modified and reduced to the extent that the petitioner would undergo R.I. for one month and pay a fine of Rs.500/- in default to undergo R.I. for one month. Being aggrieved, the petitioner has preferred this revision challenging the order of conviction. 2. Prosecution was launched against the petitioner on the allegation that P.W.1, the S.I. of Excise, Hindol while perform¬ing patrolling duty, on getting reliable information, conducted search of the house of the petitioner and recovered ten earthen pots each containing 20 Kgs. of F.M. wash in presence of the Excise Constables, P.Ws. 2 and 3. P.W. 1 conducted blue litmus paper test and prepared seizure list Ext. 1. P.W. 1 also appears to have collected the sample of F.M. wash and destroyed the seized pots and the balance quantity of F.M. wash. The petitioner took the plea of denial. Placing reliance on the evidence of P.Ws. 1, 2 and 3, the learned S.D.J.M., Hindol appears to have come to the conclusion that the seized contraband articles were recovered from the exclusive and unlawful possession of the petitioner. The learned appellate Court while upholding the con¬viction appears to have endorsed the finding of the learned S.D.J.M., Hindol. 3. In assailing the impugned judgment and order, it is contended by the learned counsel for the petitioner that the learned Courts below should not have based the conviction solely on the evidence of official witnesses and that in the absence of chemical test, there is no basis to conclude that intoxicant or material used for the purpose of manufacturing intoxicant or liquor was seized from the possession of the petitioner. However, it is well settled that finding in criminal trial can be based solely on the evidence of the official witnesses, if the witness¬es are found to be trustworthy. However, it is well settled that finding in criminal trial can be based solely on the evidence of the official witnesses, if the witness¬es are found to be trustworthy. Also in the present case, P.W. 1 appears to have conducted blue litmus paper test and also deposed that from his long experience in service for twenty years, it was ascertained that the seized contraband was F.M. wash. The learned Courts below having found the official witnesses trustworthy, accepted their evidence. There is no scope for a revisional Court to enter into the arena of reappraisal or re-appreciation of the evidence on record. 4. It is further contended on behalf of the petitioner that there is absolutely no basis to sustain the finding that the seized contraband was recovered from the exclusive or conscious possession of the petitioner. This contention does not appear to be without substance. In the present case, the seized articles are not alleged to have been recovered from the personal posses¬sion of the petitioner. The articles are admitted to have been seized from the house stated to be belonging to the petitioner. P.Ws. 2 and 3 deposed that the articles were seized from the bed room of the petitioner It is also in the evidence of P.W. 3 that the house in question had two rooms. Prosecution has not led any evidence to indicate that the house in question was in exclusive control and possession of the petitioner. Both the Courts below have failed to take note of this fundamental fact in the absence of which there is no basis to conclude that the seized articles were recovered from the possession of the petitioner. Such fail¬ure amounts to non-consideration of the nature of the allegations made against the petitioner and the nature of materials placed before the Court to substantiate the allegations. Therefore, the order of conviction against the petitioner under Section 47 (f) of the Act is not sustainable in law. 5. In the result, the Criminal Revision is allowed. The judgment and order dated 28.9.1993 passed by the learned S.D.J.M., Hindol in 2 (a) C.C. Case No. 5 of 1993 (Trl. No. 76 of 1993) as well as the judgment and order dated 24.09.1999 passed by the learned Sessions Judge, Dhenkanal-Angul, Dhenkanal in Criminal Appeal No.86 of 1993 are quashed. Revision allowed.