Orissa High Court
Minaketan Muduli vs State Of Orissa on 10 November, 2000
Equivalent citations: 2000(II)OLR647
Author: M. Papanna
Bench: M. Papanna
JUDGMENT M. Papanna, J.
1. Invoking the revisional jurisdiction of this Court under Section 401 of the Code of Criminal Procedure, the petitioner calls in question the legality of the judgment passed by the learned First Additional Sessions Judge, Puri, in Criminal Appeal No. 33/94 dismissing the said appeal and thereby confirming the order of conviction of the petitioner passed by the learned J.M.F.C., Ranpur in 2(a) C.C.No. 33/92 (Tr. No. 190/92) but modifying the sentence to R.I. for three months and to pay a fine of Rs. 200/- in default to S.I. for fifteen days.
2. Bereft of unnecessary details, facts of the prosecution case are that on 11.1.1992 at 8 p.m. while the Sub-Inspector of Excise, Ranpur accompanied by two constables, was performing patrol duty near Swapneswar temple he found the accused-petitioner coming with a bladder containing I.D.liquor which he seized in presence of witnesses for having failed to produce any authority in support of such possession. On measurement the seized liquor came to 8 litres and on test by blue litmus paper and hydrometer its strength came to be 62° U.P. Ultimately PR. was submitted against the accused-petitioner on completion of investigation.
3. The defence took a plea of denial in toto.
4. The prosecution, in order to substantiate the charge against the petitioner, examined three witnesses of whom P.Ws. 1 and 2 are two excise constables whereas P.W.3 is the Sub-Inspector of Excise. On the other hand, the defence declined to adduce any evidence in support of its stand.
5. The learned trial Judge having believed the testimony of the witnesses reached a conclusion that from the conscious possession of the petitioner, I.D. Liquor, measuring 8 litres was recovered and seized for which he found him guilty of the charge under Section 47(a) of the Bihar and Orissa Excise Act and convicted and sentenced him as stated earlier.
6. On appeal the learned lower appellate Court while maintaining the order of conviction modified the sentence as above.
7. In course of hearing of the revision, learned counsel Shri N. Singh, appearing for the petitioner contended that all the witnesses examined for the prosecution being official witnesses and their evidence found to be inconsistent and highly discrepant from each other regarding the place of seizure of alleged liquor, its quantity and container and above all the alleged liquor having not been sent for chemical analysis to say definitely that it is nothing but I.D. liquor, the learned Courts below ought not to have relied upon their testimony without there being any independent corroboration. Shri M.R. Dhal, learned Addl. Standing Counsel refuted the contention saying that in view of the concurrent findings of the Courts below, there is no scope for the revisional Court to re-appreciate the evidence of the P.Ws. on record and accordingly he has fully supported the impugned order of conviction and sentence passed against the petitioner.
8. The aforesaid contention raised by the learned counsel for both the sides need careful examination. No doubt while sitting in a Court of revision ordinarily there is no scope for appreciation of evidence but the revisional Court is not prevented from making analysis of the available evidence on record particularly when the appellate Court has failed in its duty by making an independent analysis of the same. Reliance can be placed on (1999) 16 OCR 185 (Laxmidhar Behera v. State of Orissa) wherein His Lordship Hon'ble Justice Mr. P.K.Mishra of this Court has taken the following view :
"It is true that the 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 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."
9. In the light of the principle laid down in the above decision, it is expedient and desirable under law to analyse the evidence of P.Ws. on record, particularly when the evidence of P.Ws. 1 and 3 differs from the evidence of P.W.2 regarding the quantity of seized liquor besides the discrepancy found in the evidence of witnesses regarding the container of the seized liquor. For example when P.W.I has stated to have seen the seizure of eight litres of I.D.liquor P.W.2 has stated to have seen the seizure of 80 litres of I.D.liquor. That apart, when the version of P.W.I shows that at village Sangarh the liquor was seized from the possession of the petitioner P.Ws. 2 and 3 stated to have detained him near Swapneswar temple and seized the alleged liquor from his possession. Not only that but also when the container of the seized liquor being a plastic bladder, as spoken to by P.W.I, it is a foot ball bladder as per the version of P.W.2, while the same is stated to have been a bag as per the version of P.W.3. These discrepancies and contradictions found in the evidence of official witnesses in a case of this nature where substantive sentence of imprisonment is compulsory after conviction, cannot be ignored and lost sight of. In the case of glaring discrepancies found in the evidence of official witnesses and no independent witnesses have been examined to prove the seizure of the alleged liquor from the conscious possession of the petitioner, doubt naturally generates in the mind of the Court regarding the prosecution case. Therefore, in the facts and circumstances of the case, the factum of seizure based on the evidence of the official witnesses which is not clear, cogent and consistent cannot be accepted.
10. Now the vital question for consideration is whether the seized liquor is illicitly distilled liquor or not. In the present case, the prosecution claims to have conducted blue litmus paper as well as hydrometer tests in respect of the seized liquor through P.W.3 to identify the same to be illicitly distilled liquor. According to P.W.3 in the hydrometer test the strength of the liquor was found to be 62° U.P. That apart the learned Addl. Standing Counsel relying oh the statement of P.W.3 has contended that he being an experienced Sub-Inspector of Excise having undergone different trainings in the Department, his evidence can be relied upon as an expert evidence to which the learned counsel for the petitioner counteracts stating that in the absence of chemical examination the identity of the seized liquor becomes doubtful. To answer this question it is necessary to refer to some case laws for guidance. In most of the earlier decisions of this Court the view taken is that absence of chemical examination makes the identity of the seized liquor doubtful. In 1999 (16) OCR 185 (supra) it is held that whether the seized liquor is illicitly distilled liquor or not would depend upon the evidence on record including the results of various tests undertaken including the litmus paper test and 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.
11. In the case of Suma Das v. State of Orissa reported in * (1993) 6 OCR 612, the view taken is that in the absence of any chemical analysis, it is possible to come to a conclusion that the seized liquor is illicitly distilled liquor provided the other materials on record so prove that the seized material is illicitly distilled liquor. In the said case after referring to several decisions it has been observed further as follows :
"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 article 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."
12. Basing on the view taken by this Court as quoted above, the learned counsel for the State has reiterated to urge that P.W.3 being an experienced and specially trained officer cannot be disbelieved for having conducted blue litmus as well as hydrometer tests to identify the seized liquor to be an illicitly distilled liquor. So the bone of contention now raised before this Court is whether the Sub-Inspector of Excise (P.W.3) whose evidence as per the contention of the learned counsel for the State is to be accepted as expert evidence, had sufficient knowledge 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 attended circumstances could be established beyond doubt that the petitioner was in possession of illicit liquor. In the case at hand a perusal of the evidence of P.W.3 goes to indicate that besides hydrometer and blue litmus paper tests, he tested it by smell and also by his past service experience gained in the Excise Department he could know the scent to be the liquor. However, in the present case, the prosecution has failed to adduce evidence to the effect that P.W.3 is a specially trained officer. Unless it is proved that he is specially skilled in testing I.D.liquor his evidence is not acceptable as expert evidence under Section 45 of the Evidence Act. His statement that he has worked for eight years in his Department would not attract Section 45 of the Evidence Act. In this regard I would again refer to 1993 (6) OCR 612 {supra) wherein it has been held as follows :
"The evidence of experienced and specially trained officer can however be accepted only as expert evidence as contemplated under Section 45 of the Evidence Act. That Section requires, inter alia, that the opinion of only person specially skilled in the relevant science or art is acceptable as expert evidence. Hence, unless an excise officer shows that he has special skill which may be resultant upon special training in the line, he would not be acceptable as an expert. The necessary conclusion must be that a mere statement that one has served in the excise department for number of years either as an Inspector or Sub-Inspector would not ipso facto qualify him as an expert unless it is further shown that he has been specially trained for the purpose or has acquired special skill in the matter so that he could be rightfully termed as expert."
13. Coming to the case at hand, the only evidence regarding examination of liquor available is the evidence of P.W.3 who has stated to have examined the liquor by above tests and found strength of the same to be 62" U.P. That apart, from his past experience he came to know that it was I.D.liquor. He has not stated in his evidence as to what type of experience he has gained during the tenure of his service in the Department. In my opinion, absolutely there is no evidence on record to show if he has undergone any special training at all to conduct the above tests. His evidence also does not indicate the manner and procedure of the hydrometer test conducted by him. That being the state of evidence of the Sub-Inspector of Excise (P.W.3), I am not inclined to accept it as that of an expert. Since the learned Courts below have gone wrong in accepting his evidence as that of an expert, particularly when prosecution has failed to prove him as an expert as contemplated under Section 45 of the Evidence Act, I cannot concur with the findings reached by them. Before parting with this judgment, it is profitable rather to quote the views of a Division Bench decision of Punjab and Haryana High Court reported in 1977 Cri.L.J. 528 (The State of Haryana v. Radhey Shyam).
"..........In these days when the facilities of Chemical analysis are available it is neither prudent nor safe to depend on such test which is considered unsafe and not considered sure by the I.S.I. In the tests of liquor the absence of furfurel copper and iron is important. The strength of volatile acidity and total acidity is also very relevant. These cannot be ascertained without a chemical test. Unless a proper test is conducted the prosecution cannot legitimately ask the Court to accept its case that whatever was recovered from the accused was liquor. The prosecution has in any case to rule out the possibility that the material recovered from the accused was only that for which he is being charged and nothing else......."
14. Therefore, on the whole, on the evidence of P.Ws. on record and in the light of well-established present position of law as discussed above, I hold that the tests for identification of the seized liquor as illicitly distilled liquor by blue litmus paper and hydrometer are neither safe nor conclusive tests and that chemical analysis is always the surest test for such identification in the absence of which the seized liquor in the present case cannot be claimed to be illicitly distilled liquor by the prosecution and as such it is high time for the Department of Excise to take note of the evidence relating to the experience in the line and the nature of the special training imparted to the testing officers of the Excise Department as well as the nature and manner of various tests conducted by them failing which the offence of this nature alleged against the offenders of contraband articles can never he held to be established conclusively.
15. For the reasons recorded above, I allow the Criminal Revision and set aside the impugned conviction and sentence passed against the accused-petitioner. A copy of the judgment be communicated to the Government in the Revenue and Excise Department under intimation to the Commissioner of Excise for future course of action and guidance.