Allowed¶82

Chandramani Behera v. State

Orissa HC1 Mar 2024CRLREV/47/2006

Case brief

AI extract

What is this about?

Orissa High Court, Cuttack — CRLREV No.47 of 2006, decided 01.03.2024 by Savitri Ratho, J. Chandramani Behera v. State of Odisha. Revision under Sections 397/401 Cr.P.C. against concurrent convictions under Section 47(a) and (f) of the Bihar and Orissa Excise Act (R.I. two years and fine Rs.5,000/- on each count, default six months) arising from seizure on 28.08.2000 of fermented mahua wash, I.D. liquor and distillation pipe. Held: independent witness did not support seizure, house ownership unverified, neighbours not examined, no chemical examination of wash/liquor; benefit of doubt; revision allowed, convictions set aside, acquittal.

What did the court decide?

Criminal Revision allowed; impugned judgments of the Addl. Sessions Judge, Sambalpur dated 05.12.2005 and the J.M.F.C., Kuchinda dated 07.08.2004 set aside; petitioner acquitted; bail bonds discharged.

Chandramani Behera Vs State — Orissa HC (2024) — LawSathi Research

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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Criminal Revision No.47 of 2006

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An application under Section 397 read with Section 401 of Cr.P.C. challenging the Judgment dated 05.12.2005 passed by the learned Addl. Sessions Judge, Sambalpur in Criminal Appeal No.15/12 of 2004 and the judgment dated 07.08.2004 passed by the learned J.M.F.C., Kuchinda in 2 (a) C.C. Case No.93 of 2000.

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Chandramani Behera …. Petitioner
-versus-
State of Odisha …. Opp. Party
Advocates appeared in this case through Hybrid Mode :
For Petitioner : Mr.S.N.Mohapatra , Advocate
For Opp. Party : Mr.M.R.Mishra, A.S.C.
CORAM:
JUSTICE SAVITRI RATHO

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………………………………………………………………………
Date of Judgment : 01.03.2024

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………………………………………………………………………..

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Savitri Ratho, J. In this CRLREV, the petitioner has challenged the Judgment

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and order dated 05.12.2005 passed by the learned Addl. Sessions Judge, Sambalpur in Criminal Appeal No.15/12 of 2004 confirming the Judgment and order dated 07.08.2004 passed by the learned J.M.F.C., Kuchinda in 2 (a) C.C. Case No.93 of 2000 convicting the petitioner under Section 47(a) and (f) of Bihar and Orissa Excise Act and sentencing him to undergo R.I. for two years and to pay fine of Rs.5,000/- on each

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CRLREV No.47 of 2006 Page 1 of 8

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count and in default of payment to undergo R.I. for a further period of six months on each count. It was further directed that the sentences would run concurrently.

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PROSECUTION CASE

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2. The case of the prosecution is that on 28.08.2000 at about 11.30 a.m. the then S.I. of Excise being accompanied by his staffs and one independent witness, had seized three earthen pots each containing 20 Kg of fermented Mahua wash, one small aluminium pot containing 10 Kgs of fermented mahua wash, one bamboo pipe used in distillation of I.D. liquor, from the conscious possession of the accused on searching his house. The S.I. had prepared the seizure list at the spot after conducting hydrometer test as well as litmus paper test alongwith smell test of the seized wash and I.D. liquor. On the basis of the said tests the S.I. was confirmed that the seized wash and liquor were nothing but fermented wash capable of being used for distillation of I.D. liquor and I.D. liquor respectively. Thereafter, he sealed those bottles with paper and put his seal and signature on the same. For want of transportation facilities, the rest of the seized wash was destroyed at the spot and the petitioner was arrested.

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DEFENCE PLEA

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3. The plea of the accused was one of complete denial of the prosecution case.

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CRLREV No.47 of 2006

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Page 2 of 8

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WITNESSES AND EXHIBITS

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4. In order to prove its case, the prosecution has examined three

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witnesses and the defence has examined two witnesses.

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P.W.1 is Bhagban Munda, Constable of Excise under Kuchinda

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charge. He is a witness to the seizure. P.W.2 -Pulasti Behera is the independent witness to the seizure but has not supported the seizure. P.W.3-Rajendra Kumar Mohanty is the S.I. of Excsie and I.O. of the case.

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D.W.1 - Ramachandra Sandha is a villager of Janda and D.W.2Chandramani Behera is the accused.

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The prosecution has exhibited one document - Ext.1, which is the seizure list.

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DECISION OF THE TRIAL COURT

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5. After going through the evidence of witnesses and materials available on record, the learned trial court was of the opinion that the prosecution has been successful in bringing home the charge under Section 47 (a) and (f) of the Bihar and Orissa Excise Act against the accused beyond all reasonable doubt and accordingly convicted him for commission of the offences under Section 47 (a) and (f) of Bihar and Orissa Excise Act.

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DECISION OF THE APPELLATE COURT

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6. The learned appellate court confirmed the order of conviction and sentence of the appellant and dismissed his appeal holding that the

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CRLREV No.47 of 2006

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Page 3 of 8

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Court below has rightly accepted the testimony of P.W.3 in the light of the principles decided by the Apex Court and thus on a reappraisal of the

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evidence of P.W.3, the Court did not find any reason to take a different view.

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SUBMISSIONS

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7. Mr. S.N. Mohapatra, learned counsel for the petitioner submits

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that that the convicting of the petitioner is liable to be set aside on the following grounds:

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(i) the seized articles were never produced in court nor there is any explanation for its non-production.

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(ii) P.W.2, the independent witness to seizure did not support the prosecution case during trial.

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(iii) Conviction of the petitioner relying upon the evidence of the official witnesses - P.Ws.1 and 3 only, i.e., is unsustainable.

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(iv) The prosecution has failed to establish that search and seizure was made in the house of the accused Chandramani Behera as P.W.3 has stated in cross-examination that he has not ascertained the ownership of the house where from the alleged mohua wash was seized.

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8. Mr. M.R. Mishra, learned Additional Standing Counsel opposes

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the contention of the learned counsel for the petitioner and submits that the learned Courts below have rightly passed the impugned judgments

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CRLREV No.47 of 2006

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Page 4 of 8

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basing upon the evidence on record. The I.O had the necessary experience and training to identify I.D. liquor. As there is no infirmity in the evidence of the P.Ws. or the impugned judgments, there is no ground to interfere with the conviction of the petitioner. As the official witnesses had no reason to falsely implicate the petitioner, there is no reason to disbelieve them.

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ORAL TESTIMONY

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9. After hearing the learned counsel and perusing the judgments of the learned trial Court as well as the learned appellate Court, I deem it necessary to carefully peruse the depositions of the witnesses examined by both sides, in order to determine if the conviction of the petitioner calls

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for any interference.

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P.W.1-Bhagban Munda has deposed about the seizure of the

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contraband articles from inside the house of the accused in presence of P.W.2 on 28.08.2000. He has stated that three earthen pitchers each containing 20 Kgs of mahua wash, one aluminium pot containing 10 Kgs of mahua wash and another pitcher containing 5 litres of I.D. liquor alongwith one bamboo pipe were seized by the then S.I. of Excise, Kuchinda.

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P.W.2-Pulasti Behera in his evidence stated that he knew the

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accused. On 28.08.2000 at about 1.00 p.m., while he was returning from

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Kusumi and proceeding to his house, on the way excise staff asked him to

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CRLREV No.47 of 2006

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Page 5 of 8

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sign a paper and accordingly he signed the same. In cross-examination he has stated that nothing has been seized in his presence.

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P.W.3- Rajendra Kumar Mohanty in his evidence has stated

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that on 28.08.2000 while he was conducting patrolling duty in village Indurudihi, on getting information he raided the house of accused and on search recovered three earthen pots each containing 20 Kgs of fermented mahua wash, one aluminum dekchi containing 10 Kgs of fermented mahua wash, one bamboo used in distillation of liquor and one earthen pot containing 5 litres of mahua liquor. In his cross-examination he has stated that he had searched the house of the accused, he had not verified any document relating to the ownership of the house and he cannot name the immediate neighbours of the accused. He also stated that he cannot name the other inmates of the house under search as nobody was present with the accused.

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D.W.1 - Ramachandra Sandha has stated that as far as his

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knowledge is concerned, the accused does not deal in I.D. liquor and that he has got no knowledge about the seizure of I.D. liquor or liquor manufacturing articles from inside the house of the accused.

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D.W.2-Chandramani Behera is the accused in this case. He has

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stated in his evidence that nothing has been seized from his possession by the S.I. of Excise. He was residing with his three brothers and parents and

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his family members since his childhood. About three years back, when he

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CRLREV No.47 of 2006

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Page 6 of 8

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was returning from the PHC, the S.I. of Excise met him on the road near village Tanmura and obtained his signature in a written paper without explaining anything about the contents thereof.

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ANALYSIS AND CONCLUSION

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10. P.W.2 the independent witness has admitted his signature in the seizure list but has not stated that anything was seized in his presence. P.W.1 the Excise Constable has stated about seizure of the incriminating materials by P.W.3 the S.I. of Excise. P.W.3 the I.O. has stated that on getting information he raided the house of accused and recovered three earthen pots each containing 20 Kgs. of fermented mahua wash, one aluminum dekchi containing 10 Kgs. of fermented mahua wash, one bamboo used in distillation of liquor and one earthen pot containing 5 litres of mahua liquor. But in his cross-examination he has admitted that, he had not verified any document relating to the ownership of the house and he cannot name the immediate neighbours of the accused. It is true

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that the defence has not proved that the P.W.3 had any reason to falsely implicate the petitioner. But as (i) the ownership of the house has not been verified (ii) P.W.3 has not ascertained or examined the immediate neighbours of the petitioner (iii) the alleged mahua wash and alleged I.D. liquor have not been sent for chemical examination, I am not convinced that the prosecution has been able to prove beyond reasonable doubt, that

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the incriminating articles used for manufacturing I.D. liquor and I.D.

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CRLREV No.47 of 2006

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Page 7 of 8

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liquor have been seized from the exclusive and conscious possession of

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the petitioner. He therefore deserves to be given the benefit of doubt.

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11. The conviction of the petitioner under Section 47 (a) and (f) of

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Bihar and Orissa Excise Act is therefore liable to be set aside.

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12. The Criminal Revision is accordingly allowed.

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13. The impugned judgments are set aside. The petitioner is

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acquitted. As he is stated to be on bail, his bail bonds stand discharged.

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Copy of this judgment alongwith the trial court records be sent
to the learned trial court.
………………….
(Savitri Ratho)
Judge
Orissa High Court, Cuttack
Dated 1 st March, 2024/Bichi / Sukanta

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Signature Not Verified

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Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Jul-2025 19:47:37

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CRLREV No.47 of 2006

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Page 8 of 8

Chandramani Behera v. State

Case brief

What is this about?

What did the court decide?

Chandramani Behera v. State

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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