Palka Bastha Vs State

THE HIGH COURT OF ORISSA AT CUTTACK

CRLREV No.556 of 2014

(In the matter of an application under Section 401 of the Criminal Procedure Code, 1973)

Palka Bastha ……. Petitioner -VersusState of Odisha ……. Opposite Party For the Petitioner : Mr. B.P. Das, Advocate For the Opp. Party : Mr. S. Patra, Additional Standing Counsel

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CORAM:

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THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

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Date of Hearing: 24.06.2024 : Date of Judgment:16.07.2024

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S.S. Mishra, J. The present Criminal Revision filed under Section 401 of Cr.P.C. is directed against the judgment and order dated 06.06.2014 passed by the learned Sessions Judge, Rayagada in Criminal Appeal No.46 of 2009, whereby the judgment of conviction and order of sentence passed

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by the learned S.D.J.M., Gunupur in 2(a)C.C. Case No.75 of 2004 (Trial No.1793 of 2004) has been confirmed.

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2. The Petitioner was subjected to prosecution in 2(a) C.C. No.75 of 2004 (Trial No.1793 of 2004) registered under Section 47(a) of Bihar & Orissa Excise Act.

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3. The prosecution case in brief is that on 09.04.2011 at about 9.35 P.M. while the S.I. of Excise, Gunupur along with his staff was performing patrol duty at Tandikona Chhak, found the petitioner carrying a motor-tube on his bicycle. On search, the motor tube was found to be containing 20 litres of liquor. After confirmatory test, he found the contents to be nothing but ID liquor. He seized the contraband article and bicycle and prepared the seizure list on the spot and arrested the accused-petitioner. After completion of enquiry, he submitted P.R. under Section.47 (a) of Bihar and Orissa Excise Act against the present petitioner.

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4. The learned Trial Court analyzed the entire evidence on record and found that the Petitioner is guilty for the offence punishable under Sections 47(a) of the Bihar and Orissa Excise Act and sentenced him to

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undergo R.I. for two years and to pay a fine of Rs.5,000/-, in default, to undergo R.I. for two months more.

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5. The judgment of conviction and order of sentence dated 19.11.2009 passed by the learned S.D.J.M., Gunupur in 2(a) C.C. No.75 of 2004 (Trial No.1793 of 2004) was called in question by filing Criminal Appeal No.46 of 2009 before the Court of the learned Sessions Judge, Rayagada by the petitioner.

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6. Having failed in his Appeal, the petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition.

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7. Heard Mr. B.P. Das, learned counsel for the petitioner and Mr. S. Patra, learned Additional Standing Counsel.

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8 . Perused the impugned judgment and order of conviction and sentence passed against the petitioner and carefully evaluated the evidence on record.

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9. The petitioner was subjected to trial on the charge against him for the alleged offence punishable under Section 47(a) of Bihar & Orissa Excise Act.

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10. In order to bring home charges, the prosecution had examined as many as two witnesses and the defence examined none. P.W.1 was the Excise Constable as well as witness to the occurrence. P.W. 2 was the I.O., who seized the contraband and cycle under seizure list vide Ext.1. P.W.1 duly supported him. The prosecution relied upon the testimony of the said witnesses to establish its case to substantiate the charges against the petitioner. The learned Trial Court relied upon the testimony of both the witnesses concluded that in absence of any enmity between the witnesses and the accused there is no reason as to why the evidence of all these witnesses are not believed and no explanation is forthcoming as to why the witnesses had falsely implicated the accused. Accordingly, the petitioner was convicted for the offence under Section 47(a) of Bihar and Orissa Excise Act and sentenced him to undergo R.I. for a period of two years and to pay a fine of Rs.5000/-, in default, to undergo further R.I. for a period of two months.

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11. Being aggrieved by the said judgment of conviction and order of sentence dated 19.11.2009 passed by the learned S.D.J.M., Gunupur in 2(a)CC Case No.75 of 2004, the petitioner preferred an appeal bearing

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Criminal Appeal No.46 of 2009 before the learned Sessions Judge, Rayagada..

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12. The Appellate Court vide its judgment and order dated 06.06.2014 confirmed the conviction and sentence passed against the petitioner and dismissed the appeal. Hence, the petitioner has approached this Court by filing the present Revision Petition.

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13 . Mr. Das, learned counsel for the petitioner attacked the impugned judgment primarily on the following grounds:-

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“A. It is admitted that no independent witnesses have been examined in this case by the prosecution.

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B. Further, as per the Hydrometer and Blue Litmus Paper Tests and only based on the departmental experience of PW-2, the conviction is made.

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C. There was no chemical examination report and the seized ID liquor was never subjected to chemical examination.

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D. The seized intoxicant articles were never produced before the Trial Court at any point of time during the course of trial.

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E. No witnesses have been examined to prove the seizure list.

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F. The seized articles were never produced before the Trial Court and it is admitted the seized ID liquor was never sent for chemical examination.

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G. It is further evidenced from the above that the seized bicycle was also never produced the Court any course of trial.”

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Mr. Das has also relied upon two judgments in the cases of Simachala Choudhury vs. State of Orissa reported in 2005 (II) OLR 401 and Bhaiga Sahu vs. State of Orissa reported in 2002 (Suppl.) OLR 807 . Mr. Das primarily submitted that in the absence of the chemical analysis report, the prosecution story could not be believed only on the basis of alleged Smell Test and Hydrometer Test conducted by P.W.2. In the relied judgment in the case of Bhaiga Sahu ( supra ), he relied on Paragraphs 9 & 10, which read as under:

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“9. Learned counsel for the State, on the other hand, relied upon a decision in Laxmidhar Behera v. State of Orissa (1999) 16 OCR 185, wherein this court held that though chemical test is the surest test, it cannot be laid down that in the absence of a chemical test, other tests like litmus paper test, hydrometer test or opinion of an expert would not be sufficient. So, the objection raised on the ground of absence of chemical test is not sustainable. It was, however, observed in the aforesaid decision that litmus paper test can merely indicate as to whether the liquor is acidic or not.

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10. In the present case, P.W. 3 has merely stated that the liquor so seized was tested with blue litmus paper which turned red and on hydrometer test, the strength became 71.9° U.P. P.W. 3 has not stated anything except the density of the liquor.”

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14. I have carefully gone through the evidence on record and on the strength of the evidence, I analyzed the impugned order. No doubt in the present case neither chemical analysis test report was placed on record nor the seized intoxicated articles was produced before the learned Trial Court. However, P.W.2 was examined to ascertain whether the seized liquor is ID liquor or not. P.W.2 in his examination had stated that he has undergone distillery training for some time and he has long experience in the Department. Therefore, out of his experience and knowledge from the training, he ascertained that the liquors are ID liquors. Moreover, the Litmus Test was also conducted. Whether non-production of the seized liquor before the Court is fatal to the prosecution or not, needs to be evaluated from the record.

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This Court in a judgment reported 2010(1) OLR 938 ( G. Madhav

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Reddy vs. State of Orissa ) has held as under:

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“6. It is well settled that a chemical test is the surest test of I.D. liquor and that where chemical test has not been done and other test like blue litmus paper and hydrometer test and smell test etc. has been done by an officer who is specially trained and has long experience can be accepted as expert evidence as a substitute to chemical test. The cases of Subas Rout and another v. State of Orissa, (2000) 18 OCR 438 and

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Rama Chandra Mallik v. State of Orissa, 2010(1) OLR 506) may be referred to in this regard.

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7. Coming to the evidence, it is found that P.W.3 who conducted search and seizure has stated that he conducted blue litmus paper test of the seized article which turned into red and also conducted hydrometer test and found the temperature of the liquor 650F with indication 80 under strength 420 U P. Besides he also conducted the smell test and has stated specifically that he has undergone distillery training and has sufficient service experience and from the aforesaid tests came to the conclusion that the seized liquid was nothing but I.D. liquor. It is found from the crossexamination of P.W.3 that only one question was put by the defence lawyer as to whether P.W.3 has produced any certificate with regard to his training and experience. But nowhere any suggestion has been given that he was neither trained nor sufficiently experienced. Without there being any such suggestion from the side of the defence there is no reason to disbelieve the evidence of P.W.3 that he had undergone distillery training and gained sufficient experience in view of length of his service in the department, merely because he said that he had not produced the training certificate. In the circumstances, the contention of the learned counsel for the petitioner that there is no proof that the seized article was not I.D. liquor cannot be accepted.”

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In view of the aforementioned position of law and evidence available on record, I find no reason to disagree with the findings of the Courts below regarding the reliability of the testimony of P.Ws.1 & 2. Therefore, I am of the considered view that the conviction recorded against the petitioner sustains and calls for no interference.

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However, coming to the question of sentence, the learned Trial Court has sentenced the petitioner to undergo R.I. for two years and to

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pay fine of Rs.5,000/-, in default, to undergo further R.I. for two months. This Revision Petition was filed in the year 2014. At that time, the petitioner was aged about 40 years. Nothing is there on record to suggest

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that he has misused the concession of bail at any point of time. Therefore, I am of the considered view that sentencing the petitioner and sending him to undergo custody shall serve no purpose at this stage. Learned counsel for the petitioner relied upon the judgment of this Court

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in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp-II) OLR 469 .

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Accordingly, this Court directs the petitioner to be released under Section 4 of the Probation of Offenders Act for a period of one year on his executing bond of Rs.5,000/- (Rupees Five Thousand) with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the petitioner shall keep peace and good behavior and he shall remain under the supervision of

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the concerned Probation Officer during the aforementioned period of one

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year.

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18. The Criminal Revision is accordingly allowed.

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The High Court of Orissa, Cuttack Dated the 16^th July, 2024/Amit

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Signature Not Verified