Orissa High Court
Laxmidhar Behera vs State Of Orissa on 22 October, 1998
Equivalent citations: 1999(I)OLR79
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. The petitioner was convicted by the trial Court Under Section 47 (a) of the Bihar and Orissa Excise Act, and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for one month. In appeal, the Additional Sessions Judge while confirming the order of conviction modified the substantive sentence to imprisonment to one month's rigorous imprisonment while maintaining the sentence of fine.
2. The concurrence is alleged to have taken place on 5.6.1991 at about 11.30 A.M. It is alleged that the Excise Sub-Inspector (P.W.I) along with other Excise Constables while performing patrol duty at Haldipali Chhak of Bargarh found the accused coming on a bi-cycle carrying a gunny bag. On suspicion the accused was detained and on opening the bag, it was found that 20 litres of illicitly distilled liquor had been kept inside a motor tube. After effecting seizure and testing the liquor by undertaking litmus paper test and hydrometer test, prosecution report was submitted against the accused alleging that offence Under Section 47 (a), Bihar and Orissa Excise Act, had been committed.
3. The plea of the accused was one of denial. Apart from the Sub-Inspector of Excise, who was examined as P.W. 1, the two Excise Constables who were witnesses to the seizure were examined as P.Ws. 2 and 3. The order of conviction is based on the evidence of P.Ws. 1 to 3 who are all members of the raiding party.
4. The learned counsel for the petitioner has raised two contentions in support of his submission that the order of conviction should be quashed. He has contended that in the absence of any independent witness to the search and seizure, the factum of seizure based solely on the evidence of official witnesses who are part of the raiding party cannot be accepted particularly when there are some serious contradictions in the evidence of those witnesses. He has further submitted that in the absence of any chemical analysis of the seized liquor, it is unsafe to base the conviction on the basis of litmus paper test and hydrometer test.
The learned counsel appearing for the State has submitted that the findings of fact recorded by both the Courts below should not be disturbed in exercise of revisional jurisdiction and it is not always necessary for the prosecution to undertake a chemical analysis of the seized material where on the basis of other tests and opinion of the seizing official, the nature of the seized material can be proved.
5. It is claimed by the three witnesses that the seizure took place near Haldipali Chhak. P.Ws. 1 and 2 claim that all of them were on patrol duty at the relevant time. It is stated by them that they had gone to the place of seizure in a private jeep belonging to a private citizen. This evidence of P.Ws. 1 and 2 has been seriously contradicted by P.W. 3, who has stated, "We were going with cycles,...". Moreover, if the excise officials including P.W. 1 were on patrol duty, it is not understood as to why a private vehicle had been utilised. Neither the owner of the private vehicle, nor the driver of the vehicle had been examined to support such a contention of the prosecution. In view of such contradictory material, the absence of independent witness to the search and seizure assumes more importance. The evidence of P.W. 1 gives the impression as if the place of seizure was a lonely place where no other witness was available. If that would have been so, it would be futile to expect that there would be independent witness to the search and seizure. However, such evidence of P.W. 1 appears to be contradicted by the evidence of P.Ws. 2 and 3. Though P.W. 1 stated that there was no petrol pump near the place of seizure, P.W. 2 has categorically stated that one petrol pump was there near the spot. Even he has further claimed that they had gone to call the petrol pump owner and other villagers, but they did not turn up. P.W. 3 also claims that they had called witnesses, but they declined to remain present as witness. From the contradictory evidence of1 P.W. 1 on the one hand and P.Ws. 2 and 3 on the other, it is riot possible to come to a definite conclusion as to whether any independent witness was available or not. Moreover, even assuming that no other outside witness was prepared to be a seizure witness, since the driver of the private jeep was allegedly available, he could have been cited as a seizure witness. Since the factum of seizure itself becomes doubtful in view of such contradictory evidence, it is not possible to concur With the findings of both the Courts below.
6. The learned counsel for the State has, however, submitted that since the findings of the Courts below are based on appreciation of evidence, the revisional Court should be slow to interfere with such findings. It is true that a revisional Court ordinarily does not sit as an appellate Court in the matter relating to appreciation of evidence. In the present case, it appears that the trial Court has simply adverted to the prosecution case and the statements Of the prosecution witnesses without trying to analyse the various contradictions in their evidence. If the appellate Court would have applied its independent mind and come to a conclusion regarding the truth of the prosecution case by independent analysis of the evidence, such finding would have been equally binding on the revisional Court. However, a mere perusal of the judgment of the appellate Court indicates that except merely stating that the evidence on record had been analysed in detail by the trial Court, the appellate Court does not appear to have made any attempt to make an independent analysis of the evidence on record. As the appellate Court was the final Court of fact, it was its duty to make an independent analysis of the evidence on record instead of merely saying that the trial Court had made a detailed analysis. Since the appellate Court had failed in its duty, it was necessary on the part of the revisional Court to analyse the evidence on record.
7. In view of the aforesaid factual conclusion creating doubt regarding seizure, it may not be necessary to consider the second submission made by the counsel for the petitioner. However, since the point has been raised and argued at some length by counsels for both parties, it is better to deal with the second submission made by the learned counsel for the petitioner. In the present case, the finding that the seized material was illicitly distilled liquor is based on the evidence of P.W, 1, P.W. 1 Had; stated that he had conducted litmus paper test and hydrameter test. He further stated that from his service experience and from smell of the liquid, he could come to a conclusion that the liquid seized was illicitly distilled liquor. The learned counsel for the petitioner submitted that in the absence of any chemical analysis of the seized liquid, it would be unsafe to come to a conclusion that; in fact, the liquid seized was illicitly distilled liquor. It is not possible to lay down as a matter of law that in; all cases where chemical analysis of the seized liquid is not; made, no conviction can be founded on the basis Of other evidence. As a matter of fact, in the decision of this Court reported in 1993 (II) OLR 392, (1993) 6 OCR 612 (Suma Das. v. State of Orissa) which has been relied upon by the counsel for the petitioner. It has been so recognised and laid down that it is possible to come to, a conclusion that the seized liquid is illicitly distilled liquor even in the absence of any chemical analysis provided the other materials on record so prove that the seized material is illicitly distilled liquor. After referring to several decisions, it was observed in the said case :
"A resume of the different authorities of this Court will show that though in principle the Court has, accepted chemical test to be the surest test to establish the character of the seized articles; as illicitly distilled liquor, yet the view has been adopted that in the absence of such test, other evidence is admissible to reach the same conclusion and that where both the litmus and hydrometer tests are done by experienced and specially trained officer, opinion of such officer is acceptable to establish the identity of the seized article as illicitly distilled liquor.
It was further observed in the said decision that the evidence of an experienced and specially trained officer can be accepted as expert evidence. Similar view has been expressed in the decision reported in AIR 1974 Supreme Court 639 (Sri Chand Batra v. State of U.P.) a decision arising under the U.P. Excise Act whereupon strong reliance has been placed by the learned counsel for the State. In the aforesaid Supreme Court decision, it was observed :
"11. We think that it is not desirable to lay down an inflexible rule on questions of fact even though their determination requires 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.
12. 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 Sec. 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 there 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......"
8. A perusal of the aforesaid Supreme Court as well as the decision of this Court would thus make it clear that the question as to whether the seized liquor is illicitly distilled liquor or not, should depend upon the evidence on record including the results of various tests undertaken including litmus paper test or hydrometer test. It is, of course, true that chemical analysis would be the surest test possible, but as a matter of law it cannot be laid down that in absence of any chemical test, other evidence including evidence of litmus paper test or hydrometer test or the opinion of an expert would not be sufficient. As observed by the Supreme Court, it is essentially a question of fact depending upon the materials on record in each case.
9. Judged against the aforesaid back-drop, it is to be seen as to whether the materials on record in the present case were sufficient to come to a conclusion that the seized liquid was illicitly distilled liquor or not. In the present case, though litmus paper test and hydrometer test tilt the balance to some extent against the accused person, the evidence of P.W. 1, the Sub-Inspector of Excise is not very encouraging. The Sub-Inspector has merely stated that from his service experience he could know that the seized liquor was illicitly distilled liquor. Except such bald statement, there is no other material on record to prove about his expertise in the matter or experience. From his deposition, it is apparent that he was 29 years old at the time of deposing before the Court and as such he must have been a few months younger, that is to say, around 28 years at the time of seizure. In view of the fact that he was merely 28-29, he could not have been in service for more than five to six years at the most. In the absence of any other material on record, it is difficult to come to a conclusion that P.W. 1 had gathered enough expertise/experience in his short service span so as to be characterised as an expert within the meaning of Sec. 45 of the Evidence Act. Since his opinion that the seized liquid was illicitly distilled liquor has thus become vulnerable, the only other material available on record is the result of litmus paper test and hydrometer test. As observed by several decisions, litmus paper test can merely indicate as to whether the liquid is acidic or not. In the present case, P.W. 1 has merely stated that there was hydrometer test and the strength was 52.6 U.P. As observed in the decision reported in *(1993) 6 OCR 612 (supra) this merely shows the density and in the absence of any other detail relating to such test, it would not be safe to come to a conclusion that the liquor allegedly seized by the prosecution was, in fact, illicitly distilled liquor. As observed by the Supreme Court, the question as to whether the seized liquor is illicitly distilled liquor or not is again a question of fact in normal circumstances, a revisional Court is slow to interfere with such finding. In the present case, it appears that though the defence had put certain questions relating to lack of chemical test, et cetera, neither the trial Court, nor the appellate Court has given any categorical finding on this aspect. From the notes of argument submitted before the trial Court as well as from the grounds of appeal before the appellate Court, it is apparent that this question had been pointedly raised. Since both the Courts below have not adverted to the matter in any detail, it is incumbent upon the revisional Court to go into this aspect though the finding was essentially a finding of fact. After going through the materials on record, it is, indeed, difficult to come to a definite conclusion that the liquid allegedly seized by P.W. 1 was illicitly distilled liquor.
10. For the aforesaid reasons, I allow this revision and set aside the order of conviction and sentence.