Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 414 (ORI)

Abhimanyu Sahu v. State of Orissa

2010-06-24

S.K.MISHRA

body2010
JUDGMENT S.K. MISHRA, J. — Petitioner calls in question the confirming judgment passed by the learned 2nd Addl. Sessions Judge, Berhampur in Criminal Appeal No. 58 of 1995, wherein the learned Sessions Judge confirmed the conviction of the present petitioner under Section 47(a) of the Bihar and Orissa Excise Act, 1915 and sentenced him to undergo S.I. for one month and to pay fine of Rs.500/-. 2. It is alleged that on 30.08.1992 at 6.30 A.M., the S.I. of Excise, Gopalpur, along with his staff reached the house of the petitioner in presence of local independent witnesses. After observing all formalities, conducted search and recovered two bottles each containing 750 ml of I.D. liquor. Such liquor was tested by adopting blue litmus paper and hydrometer test. From his departmental experience and the result of such tests, the S.I. of Excise came to the conclusion that the seized bottles contained I.D.liquor. Accordingly, two bottles were seized and the excise officials submitted the prosecution report against the present petitioner under Section 47(a) of the Bihar and Orissa Excise Act. 3. The trial Court convicted the accused. Such conviction was upheld by learned Second Addl. Sessions Judge. Such confirm¬ing judgment has been challenged in this revision. 4. In course of hearing, learned counsel for the petition¬er raised two points. Firstly, it was contended that since the seized materials were not sent to chemical examination, the prosecution has failed to prove that the liquor seized was I.D. liquor. Secondly, the prosecution has failed to prove that the material objects were seized from a conscious and exclusive possession of the present petitioner and hence the conviction of the petitioner is bad. Alternatively, learned counsel for the petitioner submits that imposition of sentence is harsh and he should be released under the provisions of the Excise Act. Learned Addl. Standing Counsel, on the other hand, submitted that the findings recorded by the learned trial Court are correct and urged that the revision application be dismissed. 5. Coming to the 1st contention, it is seen that the Excise Officer, P.W.5 has stated in his examination-in-chief that he has undergone distillery training and has fifteen years expe¬rience in liquor testing in which he has conducted more than 1000 cases of testing. 5. Coming to the 1st contention, it is seen that the Excise Officer, P.W.5 has stated in his examination-in-chief that he has undergone distillery training and has fifteen years expe¬rience in liquor testing in which he has conducted more than 1000 cases of testing. The defence has not challenged this aspect of his evidence in the cross-examination nor even suggestion has been given to the witness with respect to his experience as an Excise Officer. 6. The probative value of the evidence of the Excise Officer as an expert regarding his opinion as to the nature of the liquor seized, i.e. whether it is I.D. liquor or not, came up for consideration before the Hon’ble Supreme Court in Sri Chand Batra Vs. State of U.P., AIR 1974 SC 639 , wherein the Apex Court has held as follows: “We think that it is not desirable to lay down an inflexible rule on questions of fact even though their determination re¬quires the adoption of scientific methods and tests. It is really for the Court of fact to decide whether, upon a consideration of the totality of the facts in a case, it has been satisfactorily established that the objects recovered from the possession of the accused included liquor of prohibited strength. We see no reason why an accused person in the position of the appellant, who could be presumed to have enough knowledge about the composition and strength of the prohibited liquor could not raise this question in the Trial Court so that the prosecution may cure whatever weakness there might be in the evidence on that point. We do not think that he should be allowed to raise it at a stage when it may be difficult or impossible to adopt a conclusive test. Another question before us is whether the Excise Inspector, whose evidence was under consideration, had sufficient knowledge to be deemed to be an expert within the meaning of Section 45 of the Evidence Act so that the tests adopted by him, together with all the attendant circumstances, could establish beyond doubt that the appellant was in possession of illicit liquor. We think that these are also essentially questions of fact. We think that these are also essentially questions of fact. If there is sufficient evidence led by the prosecution to establish its case it becomes the duty of the defence to rebut that evidence...xxx” After making the above observation the Hon’ble Supreme Court has held that an Excise Inspector who has 21 years of experience as an Excise Inspector and has tested lacs of samples of liquor and illicit liquors together with the fact that the defence has not disputed his competence to test the composition and strength of the liquor, he has to be considered as an expert within the meaning of Section 45 of the Indian Evidence Act, 1972. In G. Sahukar Vs. State of Orissa (2000) 19 OCR (SC) 688, the Supreme Court has held that the Excise Authority by mere smell would be competent to decide whether the article is a liquor or not. This Court in Subas Rout and another Vs. State of Orissa (2000) 18 OCR 438 has held that an experienced Excise Officer by conducting hydrometer test and blue litmus paper test can come to a correct conclusion, if the liquor tested is I.D. liquor or not. It is not necessary in all cases to send the same for chemical examination. Therefore, the contention raised by learned counsel for the petitioner fails. The defence having not challenged the competence of the witness his evidence can be accepted as that of an expert. 7. Coming to the second point raised, this Court comes to the conclusion that the reasoning resorted to by the trial Court appears to be erroneous as he has entered the realm of conjuncture and surmises. At paragraph-8, the learned trial Court has held that the accused along with his wife and children were residing. The seizure of the contraband articles has since been established, it is for the accused to account for his possession. On his failure, the learned trial Court further observed, to do so, besides adopting a plea of denial simplicitor a strong presumption can be drawn under Section 48 of the Act against the accused. Learned trial Court further held that since the accused was residing along with his wife and children, it indicates that the accused was head of the family. 8. The settled principle of appreciation that evidence in a criminal case is that the burden is on the prosecution to prove its case. Learned trial Court further held that since the accused was residing along with his wife and children, it indicates that the accused was head of the family. 8. The settled principle of appreciation that evidence in a criminal case is that the burden is on the prosecution to prove its case. It can not take the benefit of weakness of the defence because it is duty of the prosecution to establish by cogent and reliable evidence that the seized materials was in the conscious and exclusive possession of the accused. The prosecution having failed to do so, the conviction of the petitioner cannot be sustained. The prosecution under Section 48 of the Bihar and Orissa Excise Act arises only when the possession is proved. Possession means conscious and exclusive possession. The prosecution have failed to prove beyond all reasonable doubt the conscious and exclusive possession of the I.D. liquor by the petitioner. This Court comes to the conclusion that the convic¬tion of the present petitioner under Section 47(a) of the Bihar and Orissa Excise Act is illegal and incorrect and hence the judgment of the learned trial Court and the appellate Court are erroneous and hence set aside. The Criminal Revision is accordingly allowed. Revision allowed.