Orissa High Court
Dolagobinda Sahu vs State Of Orissa ....... Opposite Party on 16 July, 2024
THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.301 of 2012
(In the matter of an application under Section 401 read with Section 397
of the Criminal Procedure Code, 1973)
Dolagobinda Sahu ....... Petitioner
-Versus-
State of Orissa ....... Opposite Party
For the Petitioner : Mr. S. K. Tripathy, Advocate
For the Opp. Party : Mr. S. R. Roul,
Additional Standing Counsel
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 21.06.2024 :: Date of Judgment: 16.07.2024
S.S. Mishra, J.
1. The present Criminal Revision filed under Sections 401 and 397 of Cr.P.C. is directed against the judgment and order dated 19.02.2011 passed by the learned Additional Sessions Judge, Fast Track Court No.1 Phulbani in Criminal Appeal No.22/50 of 2009/2010, whereby the judgment of conviction and order of sentence passed by the learned Asst. Sessions Judge, Phulbani in S.T. No.12 of 2007 (S.T. No.14 of 2007 (D.C.) has been confirmed.
2. The prosecution case in brief is that on 11.10.2006 at about 10.00 P.M., one Probationary Sub-Inspector namely Braja Kishore Sahu, Phulbani Sadar P.S. along with other police personnel were performing night patrolling duty at Ambapada Chhaka. At that time, an auto- rickshaw bearing registration No.OR-12A-3286 came from Phulbani side. When the P.S.I. signaled the auto rickshaw to stop it, by that time the accused Susant Kumar Mohapatra was driving the auto and the present petitioner namely Dolagobinda Sahu was sitting inside it. During search of auto rickshaw, four cartoons containing twenty bottles of Aristocrat 3X Rum each containing 180 ml. of such foreign liquor and sealed Belladonna spirit were found. The present petitioner and the co-accused were present in the said vehicle but they were unable to produce any valid Page 2 of 11 license or authority for transporting of such foreign liquor and Belladonna spirit. Therefore, the P.S.I. seized all the articles and registered the F.I.R.
3. On the basis of such allegation, the F.I.R. was lodged against the petitioner on 11.10.2006, which was registered as Phulbani Sadar P.S. Case No.68 of 2006 for the offences punishable under Section 47(a) of the Bihar & Orissa Excise Act read with Sections 276/34 of I.P.C. and Section 181 of the Motor Vehicles Act. During investigation, it came to the light that the accused persons knowingly exposed for sale of any drug or medical preparation like Belladona spirit. It was also found that the accused Susant Kumar Mohapatra was driving the said auto rickshaw without holding an effective driving licence. After completion of investigation, the police submitted charge-sheet against the petitioner under Sections 276/34 of I.P.C. read with Section 47(a) of the Bihar & Orissa Excise Act. The learned trial Court took cognizance of the offences and committed the case to the Court of the learned Sessions Judge, Phulbani.
4. The learned trial Court analyzed the entire evidence on record and found the petitioner not guilty of the offence under Sections 276/34 of Page 3 of 11 I.P.C. but on the basis of the same material, it recorded the petitioner guilty of the offence under Section 47(a) of the Bihar and Orissa Excise Act and accordingly, sentenced him to undergo rigorous imprisonment for three years each and to pay a fine of Rs.20,000/-, in default to undergo rigorous imprisonment for four months more.
5. The judgment of conviction and order of sentence dated 05.06.2009 passed by the learned Assistant Sessions Judge, Phulbani in S.T. No.12 of 2007 (S.T. No.14 of 2007 (D.C.) was called in question by filing Criminal Appeal No.22/50 of 2009/2010 before the Court of learned Additional Sessions Judge, Fast Track Court No.1, Phulbani, by the petitioner.
6. The petitioner has challenged the judgment/order of conviction and sentence of both the Courts below in the present Revision Petition.
7. Heard Mr. S. K. Tripathy, learned counsel for the petitioner and Mr. S. R. Roul, learned Additional Standing Counsel for the State.
8. Perused the impugned judgment and order of conviction and sentence passed against the petitioner and meticulously evaluated the evidence on record.
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9. Out of nine witnesses examined by the prosecution to bring home the charges against the petitioner for alleged offence under Sections 276/34 of I.P.C. read with Section 181 of the Motor Vehicles Act and offence under Section 47(a) of the Bihar and Orissa Excise Act, P.Ws.1, 2, 3 and 4 were examined as independent witnesses. P.Ws.5, 6 and 7 were the official witnesses examined by the prosecution to establish its case. P.W.8 was the informant who alleged to have detected the offence and seized the incriminating articles. P.W.9 was the Investigating Officer. It has come on record that barring the official witnesses, nobody has supported the case of the prosecution.
10. The trial Court has rightly recorded acquittal in favour of the petitioner insofar as the offence under Section 276/34 of I.P.C. is concerned as there was no evidence brought on record by the prosecution to prove that the petitioner was knowingly offered or exposed for sale of any offensive article of the nature seized or under medical prescription. Mere transportation of the offensive articles would not constitute the offence under Section 276 of I.P.C. In absence of any material to show that the petitioner was knowingly involved in selling or offering or Page 5 of 11 exposing to sell the offensive medical articles in the market, the petitioner was rightly acquitted for offence U/s.276 I.P.C. The petitioner was also acquitted for offence under Section 181 of the M.V. Act as there was no evidence brought on record by the prosecution to show that the petitioner was driving the offending vehicle without valid license. However, the learned trial Court recorded the conviction against the petitioner for the offence under Section 47(a) of the Bihar and Orissa Excise Act relying upon the testimony of the official witnesses namely P.Ws.5, 6 and 7. The evidence of the said witnesses had lent support for corroborating the evidence of P.W.8, who was the informant in this case. The defence has vehemently argued that in absence of any independent supporting evidence, the testimony of the official witnesses cannot be safely relied upon to sustain conviction against the petitioner. However, the learned trial Court has very meticulously dealt with the aforementioned point on the basis of the case law and has rightly convicted the petitioner for the offence under Section 47(a) of the Bihar and Orissa Excise Act and accordingly imposed a sentence of three years R.I. and to pay a fine of Page 6 of 11 Rs.20,000/-, in default, to undergo further R.I. for four months more against the petitioner.
11. The petitioner assailed the judgment of conviction and sentence passed against him by the learned Assistant Sessions Judge, Phulbani in S.T. Case No.12 of 2007 (S.T. Case No.14 of 2007 (D.C.) by filing Criminal Appeal No.22/50 of 2009/2010. The Appellate Court appears to have also carefully dealt with the defence version and confirmed the judgment of the trial Court. Paragraphs-7 & 8 of the Appellate Court's judgment is relevant to be reproduced which indeed dealt with the defence objection very meticulously. Paragraphs-7 & 8 of the said judgment is reproduced as under:-
<7. It is seen from the record that all the official witnesses, examined as PW5 to 8, deposed categorically about recovery of cartoons containing 3x Rum and belladonna sprit, which were sealed and labeled, from one auto rickshaw. The present appellant along with co-accused were found in the said auto rickshaw in which the above cartoons were transported. PW 8, a police sub-Inspector deposed at paragraph 2 that out of the seized articles two cartoons contain 70 bottles of 200 ml. each and one cartoon contains 30 bottles 450 ml. belladonna ginger sprit. Another cartoon contains 3x Rum of 180 ml. each. All the bottles were sealed and labeled. All these articles were produced before the trial court and the same were marked MOs. on behalf of the prosecution. No suggestion was given by the defence counsel to the said witness and other witnesses examined in this case including the investigating officer that Page 7 of 11 these bottles do not contain any contraband liquor. For the first time the same is disputed in this forum which is not entertainable. Besides the same chemical examination of seized contraband articles or conducting hydrometer test is always not necessary. In a recent decision of reported in (2010) 45 OCR page 425 Rama Chandra Mallick v. State of Orissa our Hon'ble court, by referring a decision of the Hon'ble Apex Court reported in (2000) 18 OCR page 438 Subash v. State, held at paragraph 5 that "it is now well settled by a catena of decisions that the chemical examination is not sine qua non for conviction under section 47 of the Act. Even the evidence of an experienced Excise Officer is sufficient to establish the nature of the liquor and is sufficient to hold whether the seized liquor is i.d. liquor nor not." In this case all the seized bottles were sealed and labeled. A police officer would not have felt any difficulty in recognizing the nature of article in the said bottles. The evidence of Police officer about the nature of article can not be ignored merely because the same was not sent for chemical examination in view of the ratio as cited above. The contention of the learned counsel for the appellant on this score is not acceptable and the authority cited by him, with due respect, is not helpful to him.
8. Lastly the impugned judgment was severely criticized by the learned counsel for the appellant for non-examination of any independent witness to corroborate the evidence of the official witnesses. On perusal of the record it appears that the prosecution examined two independent witnesses as PW1 and 2 to prove the seizure of articles but they did not support the prosecution case. They denied to have seen the seizure but admitted their signatures over the seizure list. The prosecution can not be blamed for their non-cooperation. Further the evidence of all the official witnesses regarding seizure of contraband articles from the conscious and exclusive possession of the accused appellant is found cogent, consistent and truthful. In a decision of our Hon'ble court reported in (2010)47 OCR page 549 Sridhara Sahu v. State of Orissa it is held that "Bihar and Orissa Excise Act, 1915-Sec.47(a) & (f)-
Conviction can be based on the basis of testimonies of official witnesses if it is cogent, consistent and without approach." The principle laid down by the Hon'ble court is squarely applicable to the facts and circumstances of the present case. Besides the Page 8 of 11 same the seizure was made during night at a place on the highway. It was not expected about presence of any independent person there. In such circumstance non- examination of any independent witness is not at all fatal. Further in the auto rickshaw the present appellant and the co- accused were present at the time of search and seizure of foreign liquor and belladonna sprit by the police personnel. It can be said that they had knowledge about transporting of contraband article. The prosecution has successfully proved their conscious and exclusive possession of the contraband articles. The learned court below has considered the materials legally and properly and arrived at a right conclusion which needs no interference in this forum. The accused appellant is not entitled to get any relief in this case.
In the result the appeal, being devoid of any merit, is here by dismissed on contest. The judgment of conviction and sentence, as awarded by the learned court below, is here by confirmed. Send back the LCR.=
12. I have gone through the entire evidence brought on record by the prosecution and weighed the evidences in the light of the objection raised by the defence. I am of the opinion that the Courts below have rightly relied upon the testimony of the official witnesses to record the conviction. The evidence of P.Ws.5, 6 and 7 cannot be discarded merely on the ground that they are the official witnesses. The only test to rely upon the testimony of the official witnesses is that the Courts should evaluate the evidence prudently and test the trustworthiness of those witnesses. Since the testimony of the P.Ws.5, 6 and 7 lend corroboration Page 9 of 11 to the testimony of P.Ws.8 & 9, the Courts below have rightly relied upon the evidence and recorded the conviction. The findings recorded by the Courts below cannot be doubted. Hence, this is not a matter to be interfered with.
13. Having said that, I am of the considered view that the sentence imposed against the petitioner is in higher side and the incident had taken place way back in the year 2006, therefore, the prayer made by Mr. Tripathy, learned counsel for the petitioner that benefit of the Probation of the Offenders Act should be extended to the petitioner deserves merit. The case of the petitioner is also directly covered by ratio of the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp-II) OLR 469.
14. In such view of the matter, the present Criminal Revision in so far as the conviction is concerned is turn down. But instead of sentencing the petitioner to suffer imprisonment, 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 Page 10 of 11 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 the concerned Probation Officer during the aforementioned period of one year.
15. The Criminal Revision is accordingly disposed of.
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S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 16th July, 2024/Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 18-Jul-2024 19:07:28 Page 11 of 11