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2010 DIGILAW 130 (ORI)

SRIDHAR SAHU v. STATE OF ORISSA

2010-03-02

B.K.PATEL

body2010
JUDGMENT : B.K. Patel, J. - The Petitioner was convicted u/s 47(a) & (f) of Bihar and Orissa Excise Act (for short 'the Act') and sentenced to undergo R.I. for six months and to pay a fine of Rs.5007 - on each count, in default, to undergo R.I. for a further period of three months on each count by the learned S.D.J.M., Athagarh in 2(a) C.C. Case No. 86 of 1991. By the impugned judgment, learned 1st Addl. Sessions Judge, Cuttack partly allowed the Criminal Appeal No. 17 of 1995 setting aside the conviction and sentence passed u/s 47(f) of the Act and maintaining the conviction and sentence passed u/s 47(a) of the Act. Aggrieved, the Petitioner has filed this revision. 2. Prosecution case is that on 21.4.1991, P.W.4, the S.I. of Excise alongwith his staff including P.W.3, ASI of Excise conducted raid in the forest situated near village Viruda at about 4.00 P.M. and found the Petitioner engaged in distilling liquor in the cashew field. Seeing them, Petitioner fled away leaving the materials at the spot. P.W.4 seized two tins M.Os.ll to III each containing 16 litres of I.D. liquor and 175 earthen pots, each containing 20 litres of tormented Gurwash in presence of P.Ws.1 and 2 under seizure list Ext.1. He kept the sample of the tormented Gurwash in the bottle M.O.I. The earthen pots were destroyed. On 9.10.1991 P.W.4 arrested the Petitioner and handed over a copy of the seizure list Ext.1. In course of enquiry, P.W.4 tested the seized liquor by means of blue litmus paper and hydrometer. On completion of enquiry, prosecution report was submitted against the Petitioner, in order to substantiate the allegations, prosecution examined four witnesses P.Ws.1 to 4 and also relied upon documents marked Exts.1 to 2 and material exhibits M.Os. I to III. No independent witness was examined. 3. In assailing the impugned judgment, it is contended that there is absolutely no evidence to indicate that any intoxicant was seized from the possession of the Petitioner. Both the learned appellate Court as well as the learned trial Magistrate failed to take note of glaring discrepancies and contradictions in the evidence of two official witnesses on the basis of whose testimony conviction has been based. Learned counsel for the State supports the impugned judgment. 4. Neither of the two independent witnesses, P.Ws.1 and 2, supported the prosecution. Both the learned appellate Court as well as the learned trial Magistrate failed to take note of glaring discrepancies and contradictions in the evidence of two official witnesses on the basis of whose testimony conviction has been based. Learned counsel for the State supports the impugned judgment. 4. Neither of the two independent witnesses, P.Ws.1 and 2, supported the prosecution. Both of them denied to have witnessed any seizure. P.W.4 deposed that basing on the information about large scale illicit distillation of liquor without any authority, he alongwith his staff raided the jungle situated near village Viruda. He testified that in presence of the available witnesses, he found the Petitioner distilling liquor at cashew field and that on seeing them, the Petitioner fled away from the spot leaving M.Os. I to III as well as 175 earthen pots each containing 20 litres tormented Gurwash. However, P.W.3 did not depose to have seen the Petitioner engaged in distilling liquor. P.W.3 testified that he accompanied P.W.4 and they saw in the cashew forest on the Western side of village Viruda, the Petitioner running away with two tins. P.W.3 further testified that they chased the Petitioner, but the Petitioner left the tins and ran towards the forest. Thereafter, they reached the spot and called two independent witnesses in whose presence the incriminating articles were seized. Thus, two official witnesses contradicted each other with regard to the conduct of the Petitioner. P.W.4 did not depose that the Petitioner started running with two tins which he left and P.W.3 did not testify to have seen the Petitioner engaged in distilling liquor. P.W.4 testified that he arrested the Petitioner on 9.10.1991. Admittedly, prosecution report was submitted on 27.11.1991 and the Court was not intimated regarding seizure of liquor and Gurwash till that date. Undoubtedly, conviction can be based solely on the basis of testimonies of official witnesses. However, in order to substantiate the allegations, evidence of official witnesses is required to be cogent, consistent and without approach. In the present case, there is absolutely no scope to hold that testimonies of P.Ws.3 and 4 are cogent and constraint. Both the Courts below have failed to consider the evidence in proper prospective. On consideration of evidence of P.Ws.3 and 4, it is found that it would not be safe to maintain the conviction on the basis of their evidence. Both the Courts below have failed to consider the evidence in proper prospective. On consideration of evidence of P.Ws.3 and 4, it is found that it would not be safe to maintain the conviction on the basis of their evidence. Accordingly, the conviction of the Petitioner u/s 47(a) of Bihar and Orissa Excise Act is liable to be set aside. 5. Therefore, the revision is allowed and the conviction of the Petitioner is set aside.