Orissa High Court
Gobind Arukha vs State Of Orissa ....... Opposite Party on 16 July, 2024
THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.267 of 2014
(In the matter of an application under Sections 401 & 397 of the
Criminal Procedure Code, 1973)
Gobind Arukha ....... Petitioner
-Versus-
State of Orissa ....... Opposite Party
For the Petitioner : Ms. Anima Dei
(Amicus Curiae)
For the Opp. Party : Mr. B.K. Ragada,
Additional Government Advocate
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 27.06.2024 : Date of Judgment: 16 .07.2024
S.S. Mishra, J. The present Criminal Revision filed under Sections 401 and 397
of Cr.P.C. is directed against the judgment and order dated 06.12.2001
passed by the learned Adhoc Addl. District & Sessions Judge, Fast Track
Court No.III, Cuttack in Criminal Appeal No.50 of 1995, whereby the
judgment of conviction and order of sentence dated 25.03.1995 passed
by the learned J.M.F.C.(R), Cuttack in 2(a) C.C. Case No.102 of 1993
has been confirmed.
2. The prosecution case in brief is that on 16.07.1993 at about 6.30
P.M. the petitioner was found going in a Luna from Manguli towards
Nirgundi. He was detained by the Constable of Excise on suspicion in
presence of witnesses. He searched the Luna and found one Tarpolin bag
containing one cartoon. On further search, the cartoon was found to have
contained 32 bottles of XXX Rum and five bottles of Beer. On demand
the petitioner failed to produce any authority or licence for such
possession. Therefore, it was seized by the Constable of Excise along
with the Luna. Thereafter the Constable Dibakar Naik produced the
seizure list, seized articles and the accused-petitioner before the S.I. of
Excise. The S.I. of Excise examined the seal and label of each bottle and
he came to a conclusion that the seized articles are I.M.F.L. Then he
sealed the cartoon. The Luna was released on zima of one Rabindra Rout
who is the owner of the same.
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After observing due formalities, later on, the S.I. of Excise
submitted P.R. under Section.47 (a) of the Bihar and Orissa Excise Act
against the petitioner.
3. The Petitioner stood charged for alleged offence punishable under
Section 47(a) of the Bihar & Orissa Excise Act.
4. The prosecution in order to prove its case had examined as many
as three witnesses in support of its case, whereas the defence examined
none. P.W.1 was the Constable of Excise who seized 32 bottles of
Kissan Rum and five bottles of Beer from the possession of the
petitioner under seizure list Ext.1. P.W.2 was independent seizure
witness whereas P.W.3 was the S.I. of Excise. It is admitted fact on
record that the seized articles were not sent for chemical examination.
P.W.2 in his testimony had also denied the knowledge of seizure.
Therefore, seizure is not adequately proved on record. The trial court
found the petitioner guilty for alleged offence under Section 47(a) of the
Bihar and Orissa Excise Act only relying upon the testimonies of the
official witnesses namely P.Ws.1 and 3. While dealing with the factum
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of non-production of the chemical examination report, the Trial court
recorded as under:
"7. The next submission made on behalf of the accused is that the
seized articles were not sent for chemical examination and the
chemical examination is the surest test. He also submitted that from
the lable, the SI of excise could know that it was liquor. In this
regard, he relied on a decision reported in 33-1967 C.L.T. at page
1192 (Udayanath Tripathy-Vrs-State). In the aforesaid decision, it
is held that the chemical examination is a surest test. But in that
case the accused has taken a plea that he imported bottles from
Andhra Pradesh as medicines. In such a situation of course, the
chemical examination is necessary. So far as this case is concerned
the accused has not taken any such plea but he has emphatically
denied the prosecution allegation in his examination u/s 313
Cr.P.C. It will not be out of the place to note here that in a decision
of the Honourable High Court reported in 1994-4 O.C.R. at page
554 (R.C. Prasad-Vrs-State), it is held that even if there is no
chemical examination to know whether the seized articles is liquor
and other exciseable articles or not, the Court can fall back upon
other evidence on record. Thus it is to be seen whether the evidence
of the prosecution witnesses are acceptable in the absence of
chemical examination."
5. The judgment of conviction and sentence passed by the learned
J.M.F.C.(R), Cuttack in 2(a) C.C. Case No.102 of 1993 against the
petitioner was called in question by filing Criminal Appeal No.50 of
1995 before the learned Adhoc Addl. District & Sessions Judge, Fast
Track Court No.III, Cuttack. The Appellate Court dismissed the appeal
inter alia stating that there was no reason to interfere in the judgment of
the court below and accordingly the sentence awarded against the
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petitioner to undergo S.I. of six months and to pay fine of Rs.500/- and
to undergo S.I. of one month in default of payment of the fine was
upheld. The Appellate court had also concurred with the findings of the
court below to the effect that non-filing of the chemical examination
report by the prosecution is not fatal to the prosecution case as the
official witnesses had identified the seized articles of Rum and Beer by
assessing the seal and label in the bottle. The Appellate court recorded
the following finding:
"7. The trial court has discussed the evidence of the witnesses in
details and has considered the grounds which are taken up in this
appeal, while writing the judgment. In this case, the constable of
excise has seized the bottles containing rum and beer and has
produced them before the S.I. of Excise along with the seizure list
and the accused. The S.I. of excise applied his mind and conformed
that the articles were rum and beer. From his evidence, it appears
that the witness was also produced before him. On examination, he
had found that the labels of the bottles and the seal were intact. It is
the settled position of law that chemical examination is not must for
a conclusion that the sealed and the labelled bottles of rum and beer
contained rum and beer only and nothing else. Therefore, the non-
examination of such liquid by way of chemical test cannot be
considered as fatal for the prosecution."
6. Having failed in the Appeal, the petitioner has challenged the
judgment/order of conviction and sentence of both the Courts below in
the present Revision Petition.
Page 5 of 8
7. Heard Ms. Anima Dei, learned Amicus Curiae for the petitioner
and Mr. B.K. Ragada, learned Additional Government Advocate for the
State.
8. Ms. Anima Dei, learned Amicus Curiae appearing for the
petitioner vehemently argued that the conviction recorded against the
petitioner cannot sustain the scrutiny of law on two counts. Firstly, as per
the evidence of P.W.2, the seizure of the articles could not be proved on
record because P.W.2 very specifically stated in the dock that he had no
knowledge of seizure. However, the courts below have believed the
seizure only on the basis of the admitted signature of P.W.2 in the
seizure list. Secondly, it is apparent from the record that there is no
scientific evidence placed on record to suggest that the articles seized are
liquor. However, the courts below have accepted the testimony of P.W.3
that out of experience, P.W.3 has assessed the bottle on the basis of the
label in the bottle that carries Rum and Beer. Therefore, the courts below
have said that non-production of the chemical test report or any scientific
evidence by the prosecution is not fatal. In that regard Ms. Dei relied
upon the judgment of this Court reported in 1993 (II) OLR 392, Suma
Page 6 of 8
Das v. State of Orissa. She relied upon paragraph-8 of the judgment
which reads as under:
"8. No doubt it is true that the menace of illicitly distilling of
liquor is a fact which is gravely injurious to the society but before
the liberty of a man is deprived of on such ground, it is necessary
that the offence alleged against him must be established
conclusively. It is the paramount duty of the excise personnel to see
that the prosecutions are well-launched on the basis of proper
investigation. There is absolutely no reason as to why this minimum
cannot be done so that the offenders are not let off. It has been
repeatedly held by this Court that though chemical test not a must
always, yet the test must be conducted by experienced and specially
trained officers. It is high time that the department takes note of such
fact and brings on record the evidence relating to the experience in
the line and the nature of the special training imparted to the testing
officer as also the nature and manner of the tests conducted. Bereft
of that the prosecution would run the risk of failure. Coming to the
present case I find that the only evidence is that of PW 2, the Excise
S.I. who stated that he examined the liquor by blue litmus paper
colour of which turned red and he also conducted the hydrometer test
and found the strength of liquor 50.00 up, indication 80.00 and 85.00
up. He also conducted smell test and from the tests and from his six
years' departmental experience, he opined the contents to be illicitly
distilled liquor. There is no evidence as to what type of experience
he had and there is absolutely no evidence if he had received any
special training to conduct the tests. There was also no evidence of
the manner and procedure of hydrometer test conducted. As such it
is not possible to accept his evidence as that of an expert. For such
reason, the petitioner becomes entitled to acquittal in the case."
9. I have perused the judgment of conviction and order of sentence
passed by the Courts below and analyzed the evidence on the strength of
the case law cited by the learned Amicus Curiae. I am of the considered
view that the prosecution has miserably failed to prove its case on
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record. Therefore, the petitioner is entitled for acquittal in the matter.
Accordingly, the judgment and order dated 06.12.2001 passed by the
learned Adhoc Addl. District & Sessions Judge, Fast Track Court No.III,
Cuttack in Criminal Appeal No.50 of 1995 and the judgment and order
dated 25.03.1995 passed by the learned J.M.F.C.(R), Cuttack in 2(a)
C.C. Case No.102 of 1993 are set aside and the petitioner is acquitted
from the charges for alleged offence under Section 47(a) of the Bihar
and Orissa Excise Act and the bail bond furnished by him stands
discharged.
I place on record the appreciation for the effective assistance
rendered by Ms. Anima Dei, learned Amicus Curiae.
10. The Criminal Revision is accordingly disposed of.
.......................
(S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 16th July, 2024/ Asish Kumar Kar, ADR-cum-Additional Principal Secretary Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Jul-2024 11:43:11 Page 8 of 8