JUDGMENT : Heard learned counsel for the parties. 2. Both the criminal revisions are directed against the judgment dated 01.04.2015 passed by learned Additional Sessions Judge-II, Seraikella in Criminal Appeal No. 132 of 2012, whereby and whereunder the appellate court has dismissed the appeal filed by the petitioners and thereby affirmed the judgment of conviction and order of sentence dated 09.10.2012 passed by learned Sub Divisional Judicial Magistrate, Seraikella in G.R. No. 97 of 2010 (T.R. No. 376 of 2012), whereby the trial court has held the petitioners guilty and convicted for the offence punishable under Section 273 of the I.P.C. and Section 47(a) of the Excise Act and sentenced to undergo R.I. for six months for the offence under Section 273 of the I.P.C. and further sentenced to undergo R.I. for three years with fine of Rs. 5,000/- under Section 47(a) of the Excise Act with default stipulation. 3. The factual matrix giving rise to this revision is that upon confidential information received by police regarding nuisance being committed near the licencee foreign liquor shop of Tapan Mandal (petitioner in Cr. Revision No. 594/2015), the informant along with other police personnel raided the place and found that a huge quantity of country made liquor and foreign liquor were kept near the northern side of the licencee shop of the Tapan Mandal, which was at the interval of two shops and his two associates namely, Sanjay Mahato and Simant Kumar Mahato (petitioners in Cr. Revision No. 558 of 2015) were selling the said liquor to several persons present there. It is alleged that in course of search of the place 600 bottles of thunder bolt Bear, 48 pieces of A.C. black Whisky of 180 mm, 10 pieces A.C. black whisky of 750 ml., 11 pieces of officer choice whisky of 750 ml, 12 pieces of Mc-Dowell No. I Whisky of 750 ml, 48 pieces of Mc-Dowell whisky of 180 ml., 48 pieces of Mc-Dowell Rum of 180 ml one bag pouch of country made liquor of 200 ml. were seized. The above salesmen disclosed that the said liquor was brought by the licencee shop holder Tapan Mandal and they were acting as a daily wagers salesman. were seized. The above salesmen disclosed that the said liquor was brought by the licencee shop holder Tapan Mandal and they were acting as a daily wagers salesman. The apprehended salesmen namely Sanjay Mahato and Simant Kumar Mahato along with seized materials were brought to police station and the matter was also informed to the Excise Superintendent, Seraikella, who also enquired into the matter and sealed the said licencee shop of Tapan Mandal. Accordingly, FIR was instituted for the offence under Section 272, 273, 414/34 of the I.P.C. and Section 47 (a) of the Excise Act. 4. After conclusion of investigation, charge sheet was submitted. In course of trial, three witnesses were examined by the prosecution, apart from the documentary evidence. 5. On the other hand, the defence has also examined two witnesses and also adduced documentary evidence; Exhibit-A is the invoice of liquor, Exhibit-B Letter No. 107 dated 23.02.2010 and Exhibit-C is the licence issued in favour of convict Tapan Mandal under the signature of Sri Sanjay Prasad, Excise Superintendent. 6. After conclusion of trial, the learned trial court held the petitioners guilty for the offence under Section 273 of the I.P.C. and sentenced to undergo six months R.I. and also held guilty for the offence under Section 47(a) of the Excise Act and sentenced to undergo three years R.I. with fine of Rs. 5,000/-each with default stipulation. 7. The judgment of conviction and order of sentence of petitioners passed by the learned trial court was assailed before the learned Additional Sessions Judge-II, Seraikella vide Criminal Appeal No. 132 of 2012, which was heard and dismissed on merits, upholding the judgment of conviction and order of sentence against the petitioners passed by the learned trial court, which has been assailed in this revision. 8. Assailing the aforesaid judgments and order, learned counsel for the petitioners have vehemently argued that the judgment of conviction and order of sentence of the petitioners is absolutely illegal and not justified under law. No ingredient of offence under Section 273 I.P.C. is available in the facts and circumstances of the case. The licencee shop of petitioner – Tapan Mandal was never searched by the Police nor any enquiry was ever made by the Excise Department in pursuance to the F.I.R. and no spurious wine was recovered from the shop of petitioner – Tapan Mandal. The licencee shop of petitioner – Tapan Mandal was never searched by the Police nor any enquiry was ever made by the Excise Department in pursuance to the F.I.R. and no spurious wine was recovered from the shop of petitioner – Tapan Mandal. Petitioner Tapan Mandal was falsely dragged in this case inspite of the fact that he was running liquor shop under valid licence and without irregularity. So far petitioners – Sanjay Mahato and Simant Kumar Mahato are concerned, no concrete evidence has been brought on record against them to prove the offences charged against them. They were working under valid licencee as a daily wages workers and not beneficiary from the said sell. It is further submitted that there are vital contradictions in the evidence of witnesses P.W.-1 namely, Madhusudan Das and P.W.-2 namely, Maheshwar Mahato, happens to be the witness of seizure list, who have categorically failed to prove the place of occurrence and recovery of huge quantity of liquor. P.W.-1 has stated that the police has seized liquors after two shops from the licencee shop of Tapan Mandal. At that time Sanjay Mahato and Simant Kumar Mahato were apprehended by the police. Similarly, P.W.-2 has claimed to see the Magic Tempo which was being loaded with wine cartoons under supervision of Police and he has signed over a document on instruction of Police. Two persons were also apprehended by Police. P.W.-3 ASI Shivesh Prasad Singh, is the informant as well as Investigating Officer, who has also admitted that the Officer-in-Charge of Chandil Police Station received a confidential information that near the shop of Tapan Mandal illegal wine is being sold. Hence, on instruction of Officer-in-Charge, this witness went for raid and enquiry. Admittedly no enquiry was conducted by Excise Department. Alleged seized materials were never sent to Forensic Science Laboratory for its examination, whether the same were liquor either country made or foreign. No violation of terms and conditions of licencee was proved by the prosecution and no material was brought on record that beyond the prescribed quantity wine was purchased by the petitioner and lying in his shop. There was no stock verification and no rebuttal of defence evidence (Exhibit-A) has been adduced by the prosecution. 9. In alternative, it is submitted that during course of investigation and trial, petitioners have undergone about six months imprisonment and it was their first offence. There was no stock verification and no rebuttal of defence evidence (Exhibit-A) has been adduced by the prosecution. 9. In alternative, it is submitted that during course of investigation and trial, petitioners have undergone about six months imprisonment and it was their first offence. Hence, in the ends of justice, the imprisonment already undergone by the petitioners appears to be just and reasonable. Accordingly, sentence may be reduced. 10. Per contra, learned APP appearing for the State has submitted that the prosecution has proved the recovery and seizure of huge quantity of foreign and country made liquor, which were being sold under the supervision and instruction of the petitioner Tapan Mandal through their salesman namely, Sanjay Mahato and Simant Kumar Mahato. From Exhibit-A & B relied upon by the defence, it is admitted that just after the occurrence, notice was issued against the licencee Tapan Mandal for stock verification and he did not turn up, inspite of notice, thereafter his shop was also sealed. Inspite of that, he did not turn up to explain anything in the said matter. Upon verification, the stock was found excess to the quantity to be purchased under terms and condition of the licence, which were being sold in contravention of licence issued in favour of petitioner – Tapan Mandal. There are concurrent findings about the guilt of petitioners, which suffers from no illegality and infirmity, calling for any interference by way of this revision, which has no merits and fit to be dismissed. 11. Before imparting my findings upon the points of arguments raised in this case, it is apposite to extract the relevant provisions at first, under which, the petitioners are held guilty and sentenced. Section 273 of the I.P.C. reads as under:- 273. SALE OF NOXIOUS FOOD OR DRINK.— Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. The relevant provision of Section 47(a) of the Bihar and Orissa Excise Act, 1915 is extracted under:- 47. The relevant provision of Section 47(a) of the Bihar and Orissa Excise Act, 1915 is extracted under:- 47. Penalty for unlawful import, export, transport, manufacture, possession, sale etc.: If any person, in contravention of this Act, or of any rule, notification or order made, issued or given, or of any licence or permit granted, under this Act, (a) imports, exports, transports, manufacturers, collects, possesses or sells [any intoxicat]; (b) …………………………………………………………... (c) …………………………………………………………... (d) …………………………………………………………... (e) …………………………………………………………... (f) ………………………………………………………….. (g) …………………………………………………………... he shall on conviction – (i) for the offence other than an offence under Cl. (c) be punishable with imprisonment for a term which shall not be less than [Two years] but may extend to [Five years] and also with fine which shall not be less than [Five thousand] rupees, but may extend to [Twenty thousand] rupees; [Provided that where any such persons collects, possesses or sells mohua flower or possesses or sells tari or pachwai he shall be liable to the punishment provided in sub clause (ii) and (ii) for an offence under Cl. (c) be punishable with imprisonment for a term which may extend to six months or with fine which may extend to [Six thousand] rupees, or with both; 12. In order to invoke the provisions of Section 273 of the I.P.C., which is inhibited under Chapter-14 under heading of “Offences Affecting The Public Health, Safety, Convenience, Decency and Morals”, this Court gone through the factual matrix of this case and found that provisions of Section 273 of the I.P.C. is not attracted in this case. So far as conviction and sentence of the petitioners for the offence under Section 47(a) of the Bihar and Orissa Excise Act, 1915 is concerned, the case of prosecution as proved clearly suggest that the petitioner Tapan Mandal was a valid licencee of wine shop on the relevant date of occurrence. The basic allegation against him was based on concrete confidential information that he was indulged in selling foreign and country made liquor just after two shops of his own licenced shop through his agents namely, Sanjay Mahato and Simant Kumar Mahato. It is also case of prosecution that after search and seizure and arrest of two salesman namely, Sanjay Mahato and Simant Kumar Mahato, the FIR was registered and the matter was also informed in writing to the Excise Superintendent, Sri Sanjay Prasad. It is also case of prosecution that after search and seizure and arrest of two salesman namely, Sanjay Mahato and Simant Kumar Mahato, the FIR was registered and the matter was also informed in writing to the Excise Superintendent, Sri Sanjay Prasad. The prosecution has miserably failed to prove the exact place of occurrence through the witnesses examined in this case. Admittedly, P.W. -1, P.W.-2 are witnesses of seizure list, but they have only seen while seized materials were loaded on a tempo and in course of bringing to police station, their signature on seizure list were obtained. P.W.-3, who happens to be Investigating Officer has also failed to bring on record any violation of terms and conditions of licence granted in favour of Tapan Mandal by the Excise Department. It also appears that the licence issuing authority Sanjay Prasad was also a witness in the Charge-sheet submitted by the Police in this case, but has not been examined by the prosecution to prove any violation of terms and conditions of licence issued by him in favour of accused Tapan Mandal. It is also admitted fact that other co-accused namely, Sanjay Mahato and Simant Kumar Mahato happens to be mere sales agent in the licensee wine shop of petitioner Tapan Mandal and have no concern with any violation of terms and conditions of licence. It also appears that during pendency of the trial, the petitioner Tapan Mandal has also filed an application for release of the seized material in his favour which was purchased by him under valid receipt (Exhibit-A), which was rejected by the trial court and revision filed by him was also dismissed. The overall scenario of the case and the evidence brought on record by the prosecution miserably failed to satisfy the ingredient of Section 47(a) of the Bihar and Orissa Excise Ac, 1915, which has been ignored by the trial court as well as by the appellate court. Therefore, the impugned judgment and order passed by the learned trial court suffers from perversity, non-consideration of evidence available on record as adduced by the defence and liable to be set aside. 13. In view of above discussion and reasons, the impugned judgment of conviction and order of sentence passed by learned trial court as well as appellate court is set aside and both the revisions are allowed. The petitioners are acquitted from the charges levelled against them. 13. In view of above discussion and reasons, the impugned judgment of conviction and order of sentence passed by learned trial court as well as appellate court is set aside and both the revisions are allowed. The petitioners are acquitted from the charges levelled against them. 14. Petitioners are on bail, as such, they shall be discharged from the liability of bail bond and sureties shall also be discharged. 15. Let a copy of this judgment along with trial court record be sent to the court concerned for information and needful.