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2008 DIGILAW 671 (ORI)

Santosh Bangola v. State of Orissa

2008-08-08

B.K.PATEL

body2008
JUDGMENT B.K. PATEL, J. — By the judgment passed in Criminal Appeal No.51/4 of 1999-2000 learned Additional Sessions Judge, Balangir while upholding the judgment and order of conviction of the petitioner under Section 47(f) of the Bihar and Orissa Excise Act, 1915 (for short ‘the Act’) by the learned S.D.J.M., Patna¬garh in 2(a) C.C. No.75 of 1997, modified and reduced the sen¬tence imposed to undergo R.I. for six months with a fine of Rs.500/-, in default, to undergo R.I. for three months with a fine of Rs.500/-, in default, to undergo R.I. for one month. 2. Prosecution was lodged against the petitioner on the allegation that on 16.7.1997 P.W.3 S.I. of Excise in presence of P.W.2 A.S.I. of Excise and P.W.1 an independent witness raided the house of the petitioner and recovered two earthen pots each containing ten liters of F.M. wash as well as one earthen pot, one earthen still pot, one bamboo pipe and an empty glass smell¬ing liquor, which articles were seized under seizure list Ext.1. 3. Plea of the defence was complete denial. 4. In order to substantiate the allegations, the prosecu¬tion examined above said three witnesses P.Ws. 1, 2 and 3 and relied upon seizure list Ext.1 only. Only one witness D.W.1 was examined on behalf of the defence. P.W.1, the independent wit¬ness, did not support the case of the prosecution and stated that no seizure was effected in his presence. Learned trial Court relying upon the evidence of P.Ws. 2 and 3 concluded that the prosecution has successfully established the allegations against the petitioner. Learned appellate Court upheld the finding. 5. In assailing the impugned judgments, it is contended on behalf of the petitioner that there is no material on record to sustain the finding that any contraband was seized from the possession of the petitioner for which there is no scope to hold that the petitioner is guilty of offence under Section 47(f) of the Act. 5. In assailing the impugned judgments, it is contended on behalf of the petitioner that there is no material on record to sustain the finding that any contraband was seized from the possession of the petitioner for which there is no scope to hold that the petitioner is guilty of offence under Section 47(f) of the Act. It is rightly contended by the learned counsel for the State that there is little scope for a revisional Court to enter into the arena of appreciation of evidence in order to examine the sustainability of the concurrent findings of the Courts below to the effect that F.M. wash contained in two earthen pots and other articles smelling liquor stated to be used as instruments for the purpose of manufacturing of liquor were seized from the house of the petitioner. Nonetheless Section 47(f) of the Act provides for punishment if any person, in contravention of the Act, or of any rule, notification or order issued or given, or of any license, permit or pass granted thereunder, uses, keeps or has in his possession, inter alia, any materials, still, utensil, implement, instrument or apparatus whatsoever for the purpose of manufacturing any intoxicating drug or liquor, other than ‘tari’. In the present case, allegation is that the petitioner was found to be in possession of materials and implements for the purpose of manufacturing liquor. Admittedly, there is no allegation that the petitioner was found using the seized materials and imple¬ments for manufacturing liquor. Also, prosecution has not alleged that the seized articles were recovered from the person or pos¬session of the petitioner. Prosecution case is that the articles were seized from the house of the petitioner. Prosecution has, however, not led any evidence to indicate that the house in question was in exclusive possession or control of the petitioner so as to infer that the seized articles were kept in the house by the petitioner and none else. Both the Courts below have not taken into account this fundamental aspect to arrive at the find¬ing that the petitioner was found to be in possession of the seized articles. Therefore, the impugned judgments suffer from patent non-consideration of material aspect which constitutes the most essential ingredient for sustaining conviction under Section 47(f) of the Act. Both the Courts below have not taken into account this fundamental aspect to arrive at the find¬ing that the petitioner was found to be in possession of the seized articles. Therefore, the impugned judgments suffer from patent non-consideration of material aspect which constitutes the most essential ingredient for sustaining conviction under Section 47(f) of the Act. Such non-consideration amounts to non-appreciation of the nature of allegations made against the peti¬tioner which has resulted in recording of a finding without any basis to sustain it. Therefore, the impugned judgments and orders are not sustainable in law and are liable to be set aside. 6. Accordingly, the revision is allowed, and the judgment and order dated 19.7.2000 passed by the Addl. Sessions Judge, Balangir in Criminal Appeal No.51/4 of 1999-2000 and the judgment and order dated 10.5.1999 passed by the S.D.J.M., Patnagarh in 2(a) C.C. No.75 of 1997 are set aside. Revision allowed.